STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
SPILLIS CANDELA & PARTNERS, INC., )
)
Petitioner, )
) THE SCHOOL BOARD OF DADE COUNTY, )
) CASE NO. 86-3002BID
Respondent, )
and )
)
THE ASSOCIATION OF SCHOOL )
CONSULTANTS, and WOLFBERG, )
ALVAREZ & ASSOCIATES, )
)
Intervenors. )
)
RECOMMENDED ORDER
For Petitioner: Eugene D. Stearns, Esquire
Spillis Candela & Partners, Inc.
For Respondent: Phyllis O. Douglas, Esquire
School Board of Dade County
For Intervenor: Bernard S. Mandler, Esquire
The Association of School Consultants, Inc.
For Intervenor: Gerhardt A. Schreiber, Esquire
Wolfberg, Alvarez & Associates
This matter was heard in Coral Gables, Florida, by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on September 2, 3 and 4, 1986 on an expedited basis. The transcript of proceedings was filed on September 15, 1986. The parties filed proposed recommended orders. Rulings on proposed findings of fact are made in the Appendix to this Recommended Order.
A. INTRODUCTION
The School Board of Dade County wishes to select a private architectural and engineering firm to enter into a three-year contract for professional services as the School Board's Consulting Architect (the "CA Contract"). The contract selection procedure is governed by the Consultants' Competitive Negotiation Act, Section 287.055, Florida Statutes (1985). After the School Board advertised its intention to receive applications from qualified architectural and engineering firms for selection to receive the three-year CA Contract, Spillis Candela, TASC, Wolfberg Alvarez and other firms submitted applications.
Petitioner Spillis Candela & Partners, Inc. (hereinafter "Spillis Candela") is a Florida corporation. For more than 20 years, it (or its predecessors) has served as consulting architect for the School Board of Dade County. It sought to obtain the 1986-1989 contract which is at issue here. After review of its application and an interview, it was selected the next most qualified firm for the contract after TASC.
Respondent The School Board of Dade County (hereinafter "the School Board") is a political subdivision of the State of Florida. See Sections 1.01(9) and 230.01, Florida Statutes (1985).
Intervenor The Association of School Consultants, Inc. (hereinafter "TASC") is a Florida corporation which applied for the CA Contract. Its corporate existence, place of business and authority to provide professional architectural, engineering and other services are issues in this proceeding. It was selected as the most qualified firm to negotiate for the 1986-1989 CA Contract.
Intervenor Wolfberg, Alvarez & Associates is a Florida corporation with its principal place of business in Dade County, Florida, which sought the CA contract. It was selected the number three firm, after TASC and Spillis Candela. Wolfberg, Alvarez & Associates intervened but did not actively participate in the presentation of evidence at the final hearing (Hearing Transcript, Vol. I at 73); it submitted a proposed recommended order.
B. PROCEDURAL BACKGROUND
On July 25, 1986, Spillis Candela filed with the School Board, pursuant to Section 120.53(5), Florida Statutes (1985), a Notice of Protest of the selection of TASC as the first candidate with which the Board would enter into negotiations for the CA Contract under the procedure established in the Consultants' Competitive Negotiation Act. The protest was referred to the Division of Administrative Hearings to conduct a formal hearing. It was received on August 14, 1986 and was assigned DOAH Case No. 86-3002BID. A prehearing order establishing a hearing date and an expedited discovery schedule was entered on August 15, 1986.
On August 21, 1986, pursuant to Section 120.56, Florida Statutes (1985), Spillis Candela filed with the Division of Administrative Hearings a Supplement to Formal Written Protest and Petition to Challenge the Validity of Dade County School Board Emergency Rule 6Gx13 ER 85-86 No. 6. This rule challenge was assigned Division of Administrative Hearings Case No. 86- 3264R; it was consolidated and heard simultaneously with this cause. Whether that rule is valid is a dispositive issue in this matter. A separate final order will be entered in that case.
C.
ISSUES AS FRAMED IN THE PREHEARING STIPULATION
Position of Spillis Candela
In its protest of the School Board's intended decision to negotiate with TASC, Spillis Candela claims:
TASC was ineligible to have been considered for the CA Contract and should have been disqualified in the initial stage of the selection process.
TASC was not licensed to practice architecture on the date it submitted its application for the consulting architect contract and, therefore, was not a firm eligible to be considered for the contract within the meaning of Section 287.055(2)(c), Florida Statutes (1985).
TASC had no office, no telephone, no employees and no equipment on the date it submitted its application for the consulting architect contract and, therefore, was not a firm eligible to be considered for the contract.
TASC is a joint venture or a part of an undisclosed joint venture and, therefore, under the School Board's rules and policies, is not eligible to be considered for the consulting architect contract.
The scores given to TASC by the School Board's Capital Improvements Committee were erroneous, unsupportable, arbitrary and capricious in that:
TASC received 309 bonus points in evaluation category 3 for prior work, including a substantial amount of work for the Dade County School Board in the preceding five years. TASC received 270 bonus points in evaluation category 6 for
not having done any work for the Dade County School Board in the preceding five years.
The public purpose of the bonus points for the absence of prior work is to reward those firms which have not previously enjoyed the benefits of contracts with the school system, a purpose which was frustrated by the award to TASC of these inconsistent points.
TASC received 360 points for having a Dade County office when it had no Dade County office.
TASC received 118 points based upon the size of its staff; the application represented the staff consisted of 47 employees with a variety of professional skills. TASC did not have, on the date it filed its application, and does not now have, any employees.
TASC received 450 bonus points because of its purported status as a minority business enterprise owned more than 51 percent by women. In fact:
TASC is not owned, operated and controlled 51 percent by women;
TASC is a joint venture prohibited from consideration for minority status by Section 287.094, Florida Statutes (1983) and School Board Rule 6Gx13-3G-1.01.
TASC should be precluded from consideration for the CA Contract because two of its principals, Tony Novo and Lourdes San Martin, who are members of the School Board's Minority Contracting Committee, actively participated in the adoption by the School Board of Dade County of an emergency rule changing the selection criteria for the CA Contract to Novo's and San Martin's benefit. Disqualification should result because:
No full-service black-owned or women- owned architectural engineering firm existed prior to the adoption of the Board's emergency
rule on minority business enterprise participation. It was a gross conflict of interest for TASC principals Tony Novo and Lourdes San Martin,
who serve on the Minority Contracting Committee, (Tony Novo serving as co-chairperson of the committee) to form TASC as an ostensibly women- owned firm to compete for the consulting architect contract. TASC was the only
applicant competing for the contract to substantially benefit from the emergency rule. See Sections 112.313(3), 112.313(6) and
112.313(7), Florida Statutes (1985).
Tony Novo and Lourdes San Martin corruptly used their positions as members of the Minority Contracting Committee to secure the consulting architect contract, in violation of Section 112.313(6), Florida Statutes (1985).
The School Board did not vote to exempt Tony Novo and Lourdes San Martin from the conflict of interest provisions of Sections 112.313(3) and 112.313(7), Florida Statutes (1985). See Section 112.313(12), Florida Statutes (1985).
Lourdes San Martin voted in favor of the Minority Contracting Committee's March 27 and April 14, 1986 resolutions
which led to the emergency rule, and did not publicly disclose her intent to form an ostensibly women-owned firm to compete for
the consulting architect contract prior to the vote and did not file with the secretary of the Minority Contracting Committee within fifteen (15) days of the vote, a written
memorandum of her intent to do so. See Section 112.3143(3), Florida Statutes (1985).
Tony Novo and Lourdes San Martin did not
file a public disclosure statement prior to their forming TASC and applying for the consulting architect contract or at any
time thereafter. See Section 112.313(9)(a), Florida Statutes (1985).
Position of the School Board The School Board contends:
the scores given to TASC by the Board's Capital Improvements Committee were reasonable and legal in that:
The individuals working for TASC received points in evaluation category 3 for prior work experience, as did the individuals working
for Spillis Candela. TASC received points in evaluation category 6 as a firm which had never worked for the School Board. Since Spillis Candela had worked for the School Board for many years it did not receive points in this category. Instead, it had an opportunity to receive more points in evaluation category 7 on the basis of previous or current performance on School Board work.
Spillis Candela's previous work for the
School Board was simply not rated high enough.
In any case, after participating in the same process for approximately 20 years, Spillis Candela cannot now complain.
The School Board adopted the position of TASC, post, regarding the existence of TASC's office, for purposes of this litigation.
The School Board adopted the position of TASC regarding the number of TASC's employees, for purposes of this litigation only.
The School Board adopted the position of TASC, post, as to its MBE status, for purposes of this litigation only.
The School Board adopted TASC's position, post, as to its eligibility to be considered for the consulting architect contract, for the purposes of this proceeding only.
The School Board adopted TASC's position, post, regarding allegations of conflict of interest, for the purposes of this proceeding only.
The Position of TASC TASC contends:
it is and has been eligible to be considered for the CA Contract because:
On May 9, 1986 TASC responded to the request for proposal for the position of consulting architect. It did not enter into a contract, it did not prepare plans,
sketches, designs, etc. There was no project involved.
On May 9, 1986, all principals of TASC were licensed by the Department of Professional Regulation.
On May 9, 1986, TASC existed as a corporation, a legal entity formed and existing under the laws of the State of Florida. TASC has at all times conducted itself as a corporation.
TASC had employees, an office and a telephone and was prepared to perform the services required once a contract was entered into.
TASC was certified as an architectural corporation on July 10, 1986 and an engineering corporation on July 3, 1986, prior to the negotiations for any contract.
TASC is not a joint venture.
TASC is an MBE and is entitled to points for MBE participation because TASC is not a joint venture and is in fact owned, operated and controlled more than fifty-one (51 percent) percent by women.
There are no conflicts of interest of Tony Novo or Lourdes San Martin.
Tony Novo and Lourdes San Martin are members of the Minority Contracting Committee.
The Minority Contracting Committee is not an "advisory body" within the meaning of Section 112.312, Florida Statutes (1985). It has no budget and no appropriations have been made for a budget for the Minority Contracting Committee. It is purely a body of concerned citizens who are acutely aware
of the need for affirmative action. Neither Tony Novo nor Lourdes San Martin are public officers within the meaning of Section 112.313(1), Florida Statutes (1985).
The Minority Contracting Committee does not in any way purchase services or
goods for the School Board and is not involved with the process of procuring of goods and services or deciding which supplier of goods and services will do business with the
School Board.
Section 112.313(3), Florida Statutes (1985), does not apply in that members of the Minority Contracting Committee do not directly or indirectly purchase services for the School Board of Dade County.
Nor does Section 112.313(3) apply since the members of the Minority Contracting Committee are not serving as "an officer or employee" of the political subdivision.
Tony Novo did not participate in the enactment of the emergency rule or the recommendations made by the Minority Contracting Committee to staff or the ultimate recommendations made to the School Board concerning the emergency rule and the award of MBE points.
Section 112.313(7), Florida Statutes (1985) likewise does not apply since a member of the Minority Contracting Committee is not "an officer or employee."
Neither Tony Novo nor Lourdes San Martin have a material interest in any "business entity provided a grant or privilege to operate" in this State as that term is defined in Section 112.312(15), Florida Statutes. No disclosure is therefore required under Section 112.313(9)(a),
Florida Statutes (1985).
Lourdes San Martin was not required
to file a disclosure statement within fifteen
(15) days of the Minority Contracting Committee's vote on the proposed resolution of her intent
to form a female-owned, controlled and operated firm because she had no such intention at the time of the vote.
There is no remedy under Chapter 120, Florida Statutes for an asserted violation of any conflict of interest statute.
Position of Wolfberg, Alvarez
The position of Wolfberg, Alvarez is not found in the Prehearing Stipulation. In its proposed recommended order filed in Case No. 86-3246R Wolfberg, Alvarez contends that if the procedure used by the School Board is found defective on any of the grounds raised by Spillis Candela, other than the challenge to TASC's right to be considered an eligible competitor for the CA Contract, all submissions should be reevaluated. Spillis Candela should not be declared the first candidate with which the Board will enter into negotiations.
D. FINDINGS OF FACT
The Genesis of School Board's Minority Business Enterprise (MBE) Program
The 1984 Omnibus Education Act, Chapter 86-336 Laws of Florida, did the following:
Authorized district school boards to set aside up to 10 percent of their total funds allocated for construction of capital projects and 10 percent or more of the total amount of funds allocated for procurement of personal property and services, for competitive bidding among Minority Business Enterprises (MBE) only. Chapter 84-336, sec. 108, Law of Florida, codified as Section 235.31(1)(b), Florida Statutes (1985) (construction); Chapter 84-336, sec. 109, Laws of Florida, codified as Section 287.094(3), Florida Statutes (1985) (purchasing).
Adopted in those newly enacted sections the definition of minority business enterprises which had been enacted in Chapter 82-196, sec. 2, Laws of Florida, codified as Section 287.094, Florida Statutes (1983). That act provided in part:
"Minority business enterprise" means any legal entity, other than a joint venture, which is organized to engage in commercial transactions and which is at least 51 percent owned and controlled by minority persons.
Required that minority business enterprise set-asides be used only to redress present effects of past discriminatory practices. Chapter 84-336, sec.
108 and 109 Laws of Florida; see also, Exhibit C and Exhibit B at 1 of "Background."
Establishment of the Minority Contracting Committee
On July 25, 1984, one month after the effective date of the 1984 Omnibus Education Act, the School Board established the Minority Contracting Committee (sometimes referred to as the Minority Business Enterprise Advisory Committee), to assist it in implementing the minority set-aside program authorized under the Act. Hearing Transcript Vol. II at 325; Exhibit A: July 13, 1984 Staff Memorandum re: Item B-35 on the agenda for School Board Meeting of July 25, 1984, and Minutes of July 25, 1984 School Board Meeting at 24; Corrected exhibit EE: Rules 6Gx13-3G-1.01(II)(E) at page 3 of 5, and 6Gx13-3G- 1.04, unnumbered paragraph 2 at page 1 of 6.
The School Board has indicated to its staff that it generally intends to adhere to the recommendations of the Minority Contracting Committee. Hearing Transcript, Vol. I at 214-215.
The Minority Contracting Committee's membership consists of a representative appointed by each School Board member, and representatives of various minority and majority business interests and as nonvoting members, selected School Board staff. Corrected Exhibit EE at page 3 of 5; Exhibit B at
2 of "Background."
The following persons are, and were at all times material to this controversy, among the members of the Minority Contracting Committee:
Newall Daughtrey, Co-Chairperson Tony Novo, Co-Chairperson Lourdes San Martin
Maria Teresa Cruz
Maria Luisa Castellanos Brenda Rivers
School Board Staff (Nonvoting) Sam Blank
Dr. Tee S. Greer, Jr.
Rose Barefield-Cox (Since April, 1986) Calvin Jennings
Janie Daniels
Id; see also Exhibits E, G and AA.
Sam Blank is Executive Assistant Superintendent, Office of Facilities Management and is the individual directly responsible for the School Board's school construction, school renovation, maintenance and plant operations. Hearing Transcript Vol. II at 323, Vol. I at 140.
Blank was not an evaluator for the CA Contract. With the exception of the MBE certification process, he coordinated the evaluation of the applicants by Board staff. Hearing Transcript, Vol. I at 188.
Dr. Tee S. Greer, Jr. is Associate Superintendent for Governmental Relations and Acting Associate Superintendent for Business Management. Dr. Greer is the individual charged with overall responsibility for School Board construction, renovation and plant maintenance. Dr. Greer is Blank's immediate supervisor. Dr. Greer reports directly to the Superintendent of Schools, who in turn reports directly to the School Board. Hearing Transcript, Vol. I at 139- 40.
Dr. Greer was Chairman of the School Board's Capital Improvements Committee and an evaluator for the CA Contract. Hearing Transcript, Vol. I at 179-180; Exhibit JJ at 28, Exhibit V.
Rose Barefield-Cox is, and has been since April, 1986, the Coordinator of the School Board's MBE Program. Barefield-Cox coordinated the MBE certification process used in connection with the CA Contract. Hearing Transcript, Vol. II at 545-49.
Calvin Jennings is a Manager III in the School Board's MBE Program. Jennings assisted Rose Barefield-Cox in the MBE certification process used in connection with the CA Contract. Hearing Transcript, Vol. II at 563, 571.
Lourdes San Martin and Tony Novo are principals of TASC as well as members of the Minority Contracting Committee.
The Study Leading to the Implementation of the School Board's MBE Program
Pursuant to the 1984 Omnibus Education Act, the School Board engaged the accounting firm of Deloitte Haskins & Sells to conduct a study of MBE participation in School Board contracting and procurement. The Deloitte Haskins & Sells study, Study of Contracting and Purchasing Practice of School Board for Purpose of Assessing the Effects of Such Practices with Minority Business Enterprises, was issued in January, 1985. Exhibit B at 1.
In reliance upon the study's finding of disparate participation by MBEs in contracting and procurement activities of the Board, on February 6, 1985, the School Board adopted Resolution No. 85-3, relating to MBE participation in Construction Capital Outlay Projects and Procurement of Personal Property and Services. The resolution directed the Superintendent of Schools to establish an MBE program and adopted, as the School Board's definition of an MBE, the definition found in Section 287.094, Florida Statutes (1983). Exhibit C, page 1, Minutes, pages 2-9; see also paragraph 14b, ante.
The School Board's Long Range MBE Goals
As a result of the Deloitte Haskins & Sells' finding of disparate MBE participation in procurement by the School Board, the Board adopted on July 10, 1985, in its Rule 6Gx13-3G-1.02, ten-year "minority business percentage participation objectives" (MBE goals) as follows:
Black | 17 | percent |
Hispanic | 17 | percent |
Women | 17 | percent |
Other | 1 | percent |
Corrected Exhibit EE: Rule 6Gx13-3G-1.02(II)(A) at pages 1-2 of 4.
Board Rule 6Gx13-3G-1.02 further provides:
Goals should be established to increase MBE participation to levels reasonably proportionate to the availability and capability of the respective MBE groups within Dade County. Corrected Exhibit EE: Rule 6Gx13-3G-1.02(I)(D); Hearing Transcript, Vol. III at 707.
Administrative procedures established to implement MBE goals shall include department goals, i.e. goals for construction (capital outlay), commodity purchasing and professional services. Corrected Exhibit EE: Rule 6Gx13-3G-1.02(III) (unnumbered paragraph 3); Hearing Transcript, Vol. I at 175, Vol. III at 706.
MBE goals shall be reviewed annually and annual goals adjusted by subtracting each MBE group's percentage of unassisted participation during the previous year from the ten-year goals. Corrected Exhibit EE: Rule 6Gx13-3G- 1.02(II)(B)(3), and (VI) at unnumbered paragraph 2.
An MBE certification procedure shall exist to ensure that businesses seeking to participate in the MBE Program are "at least 51 percent legitimately owned, operated and controlled by minorities." Corrected Exhibit EE: Rule 6Gx13-3G-1.02(IV).
The School Boards 1985-86 Annual MBE Goals
The School Board established MBE goals for 1985-86 as follows:
Black 16 percent
Hispanic 10 percent
Women 8 percent
Other 1 percent
Corrected Exhibit EE: Rule 6Gx13-3G-1.02(II)(B)(3) at pages 2-3 of 4; Hearing Transcript, Vol. 1 at 159; Exhibit H at 3-4. The reduction of the goals for women represented the judgment of the School Board, based on actual experience, that women had been more successful in securing School Board contracts than blacks and hispanics. Hearing Transcript, Vol. I at 172-73; Vol. II at 485, 566-67, see also Exhibit WW(5) at 29-30.
Annual goals remain in effect until modified by School Board rule. Corrected Exhibit EE: Rule 6Gx13-3G-1.02(II)(B)(3); Exhibit H at 15, 25.
The Role of the Minority contracting committee in the Development of the School Board's Ongoing MBE Policies
The minutes of the January 31, 1985 meeting of the Minority Contracting Committee show that School Board staff distributed a Proposed MBE Program Development Schedule "clearly delineating" the task of the committee relating to development of rules implementing the School Board's MBE policy and establishing a timetable for it to do so. The schedule encompassed the period from January 31, 1985 through July 24, 1985. Exhibit II.
The Proposed MBE Program Development Schedule attached to the minutes of the January 31, 1985 meeting of the Minority Contracting Committee provided that the Minority Contracting Committee would begin work on administrative procedures for MBE participation in consultant contracts at the committee meeting to be held on June 13, 1985. It projected that the review process would culminate with the School Board's adoption of a rule on that subject at the School Board's July 24, 1985 meeting. Id.
The Minority Contracting Committee did not develop a proposed rule on MBE participation in consultant contracts as scheduled. Exhibit VV at 51-52, 73-74, 77-78, 82-83; Exhibit WW(5) at 18. Rules were adopted by the School
Board for construction and purchase of commodities. Corrected Exhibit EE, Rules 6Gx13-1.03 and 6Gx13-1.04.
The CA Contract is one of four major consulting contracts for architectural and engineering services which the School Board enters into. The other major contracts are contracts for the engineering projects consultant, architectural projects consultant and uniform building code inspector. These major architectural and engineering services contracts are subcategories of professional service contracts. Hearing Transcript Vol. II, page 479-80. Other professional services the School Board purchases by contract include educational consulting, legal, medical, production and security services. Exhibit VV at 15- 16.
By their memorandum dated October 1, 1985, Mr. Blank and Dr. Greer informed the Superintendent of Schools that staff was "currently developing evaluation procedures," including "MBE requirements," for the selection of consultants including architectural and engineering firms. The memorandum further advised: "A proposed revision to the procedures manual, referenced in Board Rule 6Gx13-2C-1.08, [would] be prepared and brought to the Board for approval in the near future." Exhibit GG. Rule 6Gx13-2C-1.08 incorporates a
procedures manual which includes forms and instructions for evaluating applicants for consulting services by architects and engineers. Exhibit DD.
The committee did not recommend to the School Board rules on MBE participation in architectural and engineering consulting contracts. No rule was adopted by the School Board in the ordinary course of rulemaking prior to the School Board's request for proposals in connection with the major consultant contracts for the period July 1, 1986 through June 30, 1989, among which is the CA contract at issue here. Exhibit JJ at 116.
The 1986-89 Consulting Architect
Contract is Advertised by the School Board
On March 24, 1986, the School Board announced its intention to contract with an architectural-engineering firm for project management and consulting architectural services in the areas of school facility planning and construction for the three- year period July 1, 1986 through June 30, 1989. The School Board initially established April 18, 1986 as the deadline for submitting proposals for the CA Contract. Exhibit D.
The consulting architect is a major consultant upon whom the School Board relies "very heavily." Hearing Transcript, Vol. II at 618; Exhibit JJ at
Joint ventures are not permitted by School Board policy to compete for the CA Contract for two reasons: (1) it is "very important" that the consulting architect have all the requisite services available in-house, Exhibit JJ at 38; Hearing Transcript, Vol. II at 609.10; and (2) the School Board is concerned that the joint venturers may not have worked together previously, and may not provide a stable team capable of the work, Exhibit JJ at 38, 48-49; Hearing Transcript, Vol. II at 610-11, 618-19. Moreover, the definition of an MBE adopted by School Board Rule 6Gx13-3G-1.01(II)(A)(1), excludes joint ventures from receiving preferential treatment as MBEs. Corrected Exhibit EE.
Spillis Candela is currently, and has been for approximately 22 years, the consulting architect to the School Board. Hearing Transcript, Vol. III at 830; Exhibit JJ at 43-44.
The Minority Contracting Committee Meeting of March 20, 1986
At the March 20, 1986 meeting of the Minority Contracting Committee, San Martin raised as an item of new business a proposed recommendation that the professional services subcommittee of the Minority Contracting Committee meet to discuss MBE participation in consultants' contracts because "a big chunk of those dollars that wouldn't come up every year are going to be coming up for a selection very soon. And I would hate for us not to have anything in place." Exhibit VV, page 21- 22; Hearing Transcript, Vol. II, page 464, line 17.
The only budget information then before the committee was Sam Blank's guess that the four consultant contracts together represent approximately 30 percent of the School Board's architectural and engineering services budget. Exhibit VV at 28, lines 15 and 17; Hearing Transcript, Vol. II at 472-73. At no time thereafter was the committee provided with more precise budget information. Hearing Transcript, Vol. II at 473-74. The committee was not at any time aware of the actual percentage of the School Board's professional services budget attributable to the four major consultant contracts. No study had been undertaken by the committee or by the School Board to determine the percentage
of the School Board's overall procurement budget attributable to architectural and engineering services contracts. Hearing Transcript, Vol. II at 571.
These four contracts represent a small portion of the School Board's total annual purchases. Hearing Transcript, Vol. I at 169, lines 3-8.
The committee did not have at any time statistical data on the MBE composition of the firms which had held or were currently holding the four major consultant contracts. Hearing Transcript, Vol. II at 570, 585. The only information before the committee were the statements of individual committee members, none of whom had in the past or currently held any of the four consultant contracts. Hearing Transcript, Vol. II at 575, 603- 04.
The committee did not at any time have statistical data establishing the number of MBEs in Dade County in the architectural and engineering professions. See e.g., Exhibit WW (5) at 34.
No full-service black-owned or women-owned architectural-engineering firm having all the services required to perform the CA Contract existed in Dade County prior to the adoption of the emergency rule on MBE participation.
Exhibit JJ at 5, 7, 45, 49, 55; Exhibit J at page 2 of 3; Exhibit M at page 2 of
3, unnumbered paragraph 4; Hearing Transcript, Vol. II at 611-12, 622-23; Vol.
III at 791.
Blank advised the committee during that meeting that the bulk of architectural and engineering services contracts were beyond the scope of any procedures it might develop for evaluation of MBE participation in applicant firms. All of the architectural and engineering services contracts were about to be advertised. Some of the contracts had already been negotiated. Exhibit VV at 26, Hearing Transcript, Vol. II at 467-68.
The selection process for the remaining four major consultant contracts was to be concluded within the next month to six weeks. Blank believed that MBE procedures could not be formulated and adopted in time to apply to the selection of the four major consultants. Exhibit VV at 25, Hearing Transcript, Vol. II at 466.
San Martin suggested that:
Staff recommend that the School Board adopt an emergency rule on MBE participation. Exhibit VV at 29-30, Hearing Transcript, Vol. II at 472;
The four major contracts be readvertised and a paragraph inserted in the advertisements stating that consideration will be given to applicants' MBE participation. Exhibit VV at 31, Hearing Transcript, Vol. II at 477; and
The existing contracts be extended, if necessary, to accommodate any delay in completion of the selection process. Exhibit VV at 88-89, Hearing Transcript, Vol. II at 507.
Novo concurred in the suggestions that the committee request the School Board to take emergency action, Exhibit VV at 50, Hearing Transcript, Vol. II at 481, 483; Exhibit VV at 79, Hearing Transcript, Vol. II at 502, and that the consultant contracts be readvertised, exhibit VV at 79, 84, Hearing Transcript, Vol. II at 502, 505-06.
After several motions offered by Novo and San Martin failed, (Exhibit E at unnumbered pages 4-6), the committee decided to hold a special meeting on March 27, 1986, "for the sole purpose of developing a resolution to be presented to the [School] Board concerning the selection process for Professional Services and specifically for those [four (4) consultant contracts] currently being advertised." Id. at 6. No specific MBE proposals existed at that time.
Hearing Transcript, Vol. II at 483-84, 510.
Minority Contracting Committee Special Meeting of March 27, 1986
Seven of the nine voting members and one of the three nonvoting members who attended the Minority Contracting Committee's March 27, 1986 special meeting were women. Novo did not attend the meeting. Exhibit G.
At the March 27, 1986 special meeting, the Minority Contracting Committee adopted a resolution recommending that the School Board:
Restart the selection process for the four major consultant contracts;
Extend the current consultant contracts beyond their June 30, 1986 deadlines, if necessary; and
Modify the Board's selection process for the major consultant contracts by creating a new eighth category on the Professional Services Qualification Form (BC/I) which would allow evaluators to award points for MBE participation. Exhibits G, H at 48, and I.
Maria Luisa Castellanos prepared the draft of the resolution. Exhibit H at 2. Castellanos is a registered architect whose license the engineering firm of San Martin Associates, Inc. uses for architectural services. Hearing Transcript, Vol. II at 516. San Martin is president of San Martin Associates, Inc. Hearing Transcript, Vol II. at 513-14; Exhibit WW(1) at 23-25.
Castellanos has been an employee of San Martin's firm. Exhibit WW(1) at 25.
Castellanos assumed that blacks are discriminated against more than women and Hispanics, and women are discriminated against more than Hispanics, especially with regard to the major consulting contracts, all without the benefit of and statistical evidence. Exhibit H at 8, Hearing Transcript, Vol. II at 525. In explaining how she arrived at her recommended increase in MBE participation goals for women, Castellanos stated:
So I looked at [the 1985-86 MBE goals] and I said, well, what would we do to up the Women participation and still try to make it even. So I said well, maybe the Black and Hispanic wouldn't be too mad if we took 2 percent from the Black and we took 2 percent from the Hispanic and we added those to the Women category. We're also looking at the fact that Women are about 50 percent of the work force and in reality we should take half of the Blacks and half of the Hispanics and dump it with the Anglo Women. But I know there was going to be a big uproar about it, so I said we'll -- we'll only take 2 percent from the Black and 2 percent from the Hispanic.
So, the annual goals would be 14 percent for Blacks, 8 percent for the Hispanics, and 12 percent for the Women.
Exhibit H at 4-5, Hearing Transcript, Vol. II at 521.
The Minority Contracting Committee recognized that MBE participation levels are to be reviewed annually and the MBE goals modified to reflect the current unassisted participation levels. Exhibit H at 13, 30.
Data on the 1985-86 MBE participation levels was not available to calculate the 1986-87 goals. Exhibit H at 27, 31-32; Hearing Transcript, Vol. II at 566, 569; Exhibit WW(5) at 44, 50. No data establishing the number of black and Hispanic women MBEs exist. Exhibit JJ at 117-18; see also Exhibit H at 27, 32.
The committee's March 27, 1986 resolution stated: "The goals established [for 1985-86] are obsolete and the study and statistics are not available to establish goals for 1986-87." Exhibit I.
Chairman Newall Daughtrey opined that the 1985-86 MBE participation levels probably are not substantially different from the 1984-85 levels used to establish the 1985-86 goals. Exhibit H at 27-28, Hearing Transcript, Vol. II at 534.
Without any data to support changes in the School Board's MBE goals, the Minority Contracting Committee voted to adopt Castellanos' proposal. This proposal modified the School board's MBE goals by subtracting two percentage points from each of the black and Hispanic categories and adding them to the women category to increase the participation goal for women. This change in the goal would apply only to the four major architectural consulting contracts. Exhibit G; Exhibit H at 2-5, Hearing Transcript, Vol. II at 519. San Martin argued in favor of and voted in favor of that proposal. Exhibit G; Exhibit H at 48.
The committee members recognized that the School Board did not have sufficient time to promulgate through normal rulemaking procedures a rule changing the 1985-86 goals which would apply to the consulting architect contract. Exhibit H at 23.
The committee recommended that "as a temporary measure", the MBE goals for the four major consultant contracts only be modified as follows:
Black 14 percent
Hispanic 8 percent
Women 12 percent
Exhibit I at unnumbered page 1, second paragraph of the "resolved" clause; Exhibit H at 2-5, Hearing Transcript, Vol. II at 519.
No overall annual MBE goals for professional services or for any other category of procurement have been established for 1986-87 by the School Board. See generally Hearing Transcript Vol. II at 605.
In adopting Castellanos' proposal, the Minority Contracting Committee proposed the following new point category for applicants for the four major
contracts "certified as 51 percent owned, operated and controlled by Blacks, Hispanics, or Women":
Total Potential Category Points Weight Additional Points
Black | 26 x 5 | = | 130 |
Hispanic | 15 x 5 | = | 75 |
Women | 22.5 x 5 | = | 112.5 |
The committee recommended that a weight factor of 5 be established for the MBE participation category. Exhibit F at unnumbered page 2, paragraph D.
The highest score possible on the point system in effect prior to the adoption of the emergency rule on MBE participation was 180 points per evaluator for a firm which had not done School Board work in the last five years, and 185 points for a firm which had done School Board work recently. A firm should not receive points in both categories 6 and 7 according to the instructions for completing these forms. See Exhibit N at 9- 9b of 11.
The largest weight factor used under the previous point system was 4. A weight factor of 4 applies to only category one: "LOCATION OF OFFICE." Exhibit J, attachment B, at page 9 of 20.
The intent in adopting the point scoring system was to award sufficient points to black and women MBEs to so that a black-owned or women- owned firm could be selected the number one applicant, even though its scores in the other categories were lower. Exhibits H at 8, 10 and JJ at 118.
Professional Services Subcommittee Meeting of April 10, 1986
The Minority Contracting Committee's Professional Services Subcommittee met on April 10, 1986. Exhibit K. Blank and three other School Board staff persons attended, as were the following voting members of the Minority Contracting Committee:
Maria Luisa Castellanos Maria Teresa Cruz
Lourdes San Martin Exhibit K.
Maria Teresa Cruz is an engineer with whom San Martin consults and co- ventures. Exhibit WW(1) at 61-62.
Blank expressed concern with the recommendations the Minority Contracting Committee had adopted in the resolution of March 27, 1986 for two reasons: (1) the committee had recommended that the MBE goals be modified when no data existed to support the change, and (2) the committee had proposed a point scoring system which allowed more points for MBE participation than for other factors such as experience and capability. Exhibits J and M at page 1 of 3, at numbered paragraphs 1 and 2; Hearing Transcript, Vol. II at 595-96, 598, 599-600, 605-06.
Blank presented to the subcommittee the following modification of the Minority Contracting Committee's recommended scoring system for certified MBE owned, operated and controlled firms:
Category Points Weight Potential
Black | 10 | x 5 | = | 50 |
Hispanic | 2 | x 5 | = | 10 |
Women | 10 | x 5 | = | 50 |
Exhibit J at page 2 of 3, paragraphs 8(A) and (D); Hearing Transcript, Vol. II at 602. Exhibit K at unnumbered paragraph 1; Hearing Transcript, Vol. II at 345, 597.
The committee's March 27, 1986 resolution allocated more points to blacks and women than to Hispanics. Blank's modified point scoring system also allocated more points to blacks and women than to Hispanics. Blank developed the modifications without the benefit of any studies or statistical data. Exhibit JJ at 6-7.
Castellanos, Cruz and San Martin requested that an emergency meeting of the entire Minority Contracting Committee has convened on either April 14 or April 15 to discuss the full committee's final position on the recommendation regarding MBE participation in the major consultant contracts. The recommendation was scheduled to be presented to the School Board on April 16, 1986. Exhibit K at unnumbered paragraph 2.
Minority Contracting Committee Emergency Executive Committee Meeting of April 14, 1986
The Minority contracting Committee held an emergency meeting on April 14, 1986. The emergency meeting was convened as an executive committee meeting. Exhibits L and JJ.
The committee adopted Blank's proposed modification of the MBE point scoring system and recommended to the School Board that MBE bonus points be awarded as follows:
Blacks | 10 |
Hispanics | 2 |
Women | 10 |
With the exception of Cruz, who did not believe the proposal went far enough, all members present, including San Martin, voted in favor of the recommendation. Exhibits L, JJ at 118-119, 127-30.
When the committee asked the basis of the numbers under his modified point scoring system, Blank stated: "There is really no basis". Exhibits JJ at 7.
The modified point scoring system increased the recommended disparity between points allocated to Hispanics and points allocated to women from 37.5 percent to 40 percent. Hearing Transcript, Vol. II at 602.
San Martin moved to amend the Minority Contracting Committee's resolution to include a provision that the consulting architect be permitted to subcontract. Cruz seconded the motion. Exhibit L at 2. Sandra Riggs, Maria
Louisa Castellanos, Lourdes San Martin and Maria Teresa Cruz voted for the amendment. Exhibit L at 2. The motion failed on a tie vote. Id.
Blank advised the Minority Contracting Committee that, pursuant to state law in order to take effect immediately and to have a duration of 90 days, the committee's recommendation to the School Board would have to be adopted as an emergency rule, rather than adopted merely as a Board resolution. Accordingly, the Minority Contracting Committee's modified resolution was submitted to the School Board as a recommendation for the adoption of an emergency rule. See Exhibit M.
No statistical study of the current level of MBE participation in the consultant contracts or any professional services or other contracts existed at the time the Minority Contracting Committee adopted its March 27, 1986 resolution and April 14, 1986 modified resolution. Exhibit WW(5) at 19; See Exhibit M at page 1 of 3, numbered paragraph 1, Hearing Transcript, Vol. I at 153-54, 164, 177; Vol. II at 596-97, 603- 04.
San Martin did not, at any time prior to or during the vote on the March 27, 1986 resolution or the April 14, 1986 modified resolution, publicly announce an intent to form an ostensibly women-owned firm to compete for the consulting architect contract and did not file with the secretary of the Minority Contracting Committee within fifteen days of the vote, a memorandum of her intent to do so. This is so because at that time she had no such intent. Exhibit WW(1) at 5-6, 77. See also Finding of Fact 90, post.
The School Board Meeting of April 16, 1986
Blank prepared the April 11, 1986 memorandum transmitting the Minority Contracting Committee's proposed emergency rule to the School Board. Exhibit M, Hearing Transcript, Vol. II at 595-98. Blank expressed "two major concerns the [School] Board should consider:
The affirmative action goals of the MBE program
have been established by Board rule at 16 percent for Blacks, 10 percent for Hispanics, 8 percent for Women and 1 percent for other MBEs. A change in these goals at this time, with no new data regarding participation levels, does not appear to be advisable.
The proposed Minority Contracting Committee revisions to the selection process point system are not considered to be in the best interests of the Board. The Committee's proposed system would provide significantly more points for being a minority firm than for previous experience of the firm, or background, experience and capabilities of the firm, or past performance on similar projects. Emphasis is placed on the minority composition to the extent that it could overcompensate for deficiencies in the technical areas, which are so critical to satisfactory performance of these consulting services. It also should be noted that subcontracting of the four services in question is not advisable, and has not been allowed in past contracts. The use of joint
ventures in lieu of subcontracting is allowed, with the exception of the Consulting Architect's contract, and is treated affirmatively in
staff's recommendation. The Consulting Architect contract requires that all services be available in-house from a single firm."
Exhibit M at page 1 of 3.
Blank further stated:
The proposed MBE points system is based on the fact that participation in these four
contracts has historically been dominated by a Hispanic firm, with no Black or Female participation. It is also unlikely that a single Black or Woman owned firm will meet the minimum qualifications for these contracts; therefore, the emphasis on joint ventures.
Id. at page 2 of 3. Despite these reservations, the Board staff recommended adoption of the emergency Rule "applicable only to the four consulting contracts currently being processed." Id. at page 2 of 3.
On April 16, 1986, the School Board adopted Agenda Item 5-38, entitled "Emergency Rule 6Gx13 ER 85-86 No. 6: Selection of Consulting Architect, Engineering Projects Consultants, Architectural Projects Consultants and Uniform Building Code Inspector, AMENDED procedures manual to revise the Professional Services Qualification Form BC-I, which provides additional points for various levels of MBE involvement, applicable only to the four contracts." This emergency rule amended a part of the Procedures Manual - Building Committee Procedures for Selection of Architects, Engineers, Construction Managers, Land Surveyors and Other Consultants or Professional Services Required for Design or Construction of School Facilities, incorporated by reference in Rule 6Gx13-2C- 1.08, to include an eighth category on MBE participation. School Board Exhibit 3, Minutes of the April 16, 1986 School Board Meeting at 4; Exhibit CC.
The School Board adopted the following specific reason for emergency rulemaking:
SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO PUBLIC HEALTH, SAFETY AND WELFARE:
This situation requires immediate action to prevent undue delay in the selection of the major consultants utilized to implement the Board's construction program. Such a delay would have a substantial adverse impact on the public health, safety, and welfare by delaying the delivery of new schools and improvements required to relieve overcrowding and renovations affecting the health, safety, and welfare of students and staff.
Exhibit M at unnumbered page 4; School Board Exhibit 3.
The School Board expressly provided that the emergency rule was to apply only to the four consultant contracts. Id.
Peter Spillis is the principal of Spillis Candela responsible to service the CA Contract. Hearing Transcript, Vol. III at 829. Spillis received a copy of replacement item B-38 on the agenda for the School Board's April 16, 1986 meeting relating to the emergency rule. Hearing Transcript, Vol. II at 879. Spillis was present at the April 16, 1986 School Board meeting when the emergency rule was adopted. Hearing Transcript, Vol. III at 874. The consulting architect is required to attend all School Board meetings. Hearing Transcript, Vol. III at 832.
Peter Spillis did not address the School Board during the Board's April 16, 1986 meeting on the proposed emergency rule on MBE participation. Spillis Candela did not at any time prior to the adoption of the emergency rule, or any time prior to submitting its application for the CA Contract, advise the School Board that it objected to the rule. Hearing Transcript, Vol. III at 880- 81.
Peter Spillis was not aware of the Minority Contracting Committee or the School Board's MBE Program prior to the emergency rule. Hearing Transcript, Vol. III at 878-79. The School Board's staff did not advise Spillis of the existence of the Minority Contracting Committee and did not solicit his input in the development of the MBE Program or the emergency rule. Hearing Transcript, Vol. III at 880.
Spillis Candela has never previously requested the School Board grant it a hearing under Sections 120.54 or 120.56, Florida Statutes, or any School Board rule. Cf. Hearing Transcript Vol. III at 887.
Peter Spillis was concerned about the impact the emergency rule might have on Spillis Candela and expressed those concerns to Blank. Blank assured him that the rule would not affect Spillis Candela because there were no black- owned or women-owned full-service architectural and engineering firms which could take advantage of the emergency rule in competing for the consulting architect contract. Hearing Transcript, Vol. III at 687-88, 733.
The Consulting Architect Selection Process
The emergency rule took effect immediately on April 16, 1986. Exhibit HH; Section 120.54(9)(d), Florida Statutes (1985).
The availability of the consulting architect contract was readvertised and the deadline for submitting applications was extended to May 9, 1986. The readvertisement stated:
The selection process has been amended to include an affirmative action provision for minority firms. This provision will provide additional points in the screening instrument. (50 points maximum).
Exhibit P.
The maximum score possible under the emergency rule was 50 points for each of the nine evaluators, for a total of 450. See Exhibit M, attachment C, page 9b of 11, paragraph 8.
On or before the May 9, 1986 deadline for submitting applications, the School Board received a number of applications for the CA Contract. Among them was a joint venture application composed, in part, of TASC principals Lemuel Ramos, Tony Novo and Jorge S. Azze. They subsequently withdrew that application from consideration. Exhibit WW(3) at 20; Hearing Transcript, Vol. I at 243-44; see also Exhibit WW(4) at 10.
Ramos withdrew the joint venture application from consideration because he was advised that joint ventures could not be considered for the consulting architect contract. Exhibit WW(3) at 19, Hearing Transcript Vol. I at 264-65. After the CA Contract was readvertised with the provision for affirmative action, Ramos decided to submit a second application. Exhibit WW(3) at 19, 21. Ramos was permitted to physically remove the joint venture application from the School Board offices. Exhibit WW(3) at 20-21; Hearing Transcript, Vol. I at 243-44.
TASC
Ramos decided to submit the new application as one from a woman-owned company after he learned of the new School Board rule in the latter part of April, about April 22. Exhibit WW(3) at 18-25. As a result he amended the old joint-venture application with the former joint venturers and added two women as principals, Vivian Salaga, an architect and San Martin, an engineer. Id. at 20- 30, Hearing Transcript Vol. I at 243.
On May 9, 1986, TASC submitted an application for the CA Contract. Exhibit Q. In its application, TASC characterizes itself as a "collaborative" of architects and engineers experienced in working with educational facilities. Exhibit Q at unnumbered page 33, paragraph 10 of Standard Form 255.
Portions of the Ramos-Novo-Azze joint venture application were used in TASC's application. Hearing Transcript, Vol. I at 261-62; 243.
TASC was incorporated by the Secretary of State on May 9, 1986. Exhibit R. Ramos organized TASC as a corporate entity and was its sole subscriber. Hearing Transcript, Vol. I at 245, Exhibit WW(3) at 18; Exhibit WW(2) at 29; Exhibit R; Exhibit VV at page 3 of Articles of Incorporation.
Ramos formed TASC because joint ventures are not permitted for the consulting architect contract. Hearing Transcript, Vol. I at 265, 274; Exhibit WW(3) at 23.
TASC consists of the following principals, who also comprise its board of directors:
Vivian Salaga, President
Lemuel Ramos, Executive Vice President Lourdes San Martin, Vice President Tony Novo, Treasurer
Jorge S. Azze, Secretary Exhibit T at page 1, paragraph 5.
The principals of TASC acting as its board of directors control TASC. Hearing Transcript, Vol. III at 943.
A majority of TASC's board of directors are white Hispanic males. Exhibit S at unnumbered page 3.
San Martin and Salaga each own 26 percent of the stock of TASC. Ramos, Novo and Azze own equal percentages of the remaining stock. Hearing Transcript, Vol. III at 903-04, 926-27; Exhibit S at unnumbered page 3.
The principals of TASC have no agreements to make capital contributions based upon their stock ownership. They have simply been putting money into TASC on an as-needed basis. Hearing Transcript, Vol. I at 267; Exhibits WW(3) at 49-52, WW(4) at 42.
San Martin and Salaga had never met each other until approximately two weeks prior to May 9, 1986. Ramos introduced them to each other at the second organizational meeting of TASC. Hearing Transcript, Vol. III at 902, 928-29.
Ramos also:
Proposed, and the other TASC principals agreed, that San Martin and Salaga be allocated more than 51 percent of TASC's stock to take advantage of the MBE emergency rule, Hearing Transcript, Vol. I at 293-94; Vol. III at 937- 38; Exhibit WW(3) at 23, 25-27;
Provided a temporary address and telephone number for TASC, Hearing Transcript, Vol. I at 246, 254; Exhibit WW(2) at 28-29;
Selected the persons who would form TASC, Hearing Transcript, Vol. I at 245, 247, 275;
Selected TASC's attorneys, Exhibit WW(2) at 29- 30; and
Coordinated the preparation of TASC's application for the CA Contract, Hearing Transcript, Vol. I at 245.
Prior to May 9, 1986, the principals of TASC had never worked together as a group on any architectural and engineering or other project. Hearing Transcript, Vol. I at 242, 262, Vol. III at 932-33, Exhibit WW(5) at 14.
Each of the principals of TASC is also a principal of a separate firm:
Salaga is a registered architect, a full-time professor of architecture at Florida International University and the sole owner of Atelier Architects. Exhibit WW(2) at 3; Hearing Transcript, Vol. III at 896-97, 964. At the time of her deposition in this matter, Salaga described her duties for TASC as less defined than the duties of the other principals. Exhibit WW(2) at 25.
Ramos is a registered architect and owner of Lemuel Ramos & Associates, Inc. Exhibit WW(3) at 3; Hearing Transcript, Vol. I at 240.
San Martin is a registered structural engineer and owner of San Martin Associates, Inc. Exhibit WW(1) at 3-4; Hearing Transcript, Vol. II at 513-14.
Novo is a registered mechanical and electrical engineer and owner of Professional Associated Consulting Engineers, Inc. ("PACE"). Exhibit WW(5) at 4.
Azze is a registered architect and owner of Jorge S. Azze, Architect,
P.A. Azze is also part of a joint venture known as Professional Engineering Specialty Team ("PEST"). Exhibit WW(4) at 3-4.
With the possible exception of Azze, the principals of TASC intend to continue to operate their respective firms, notwithstanding the formation of TASC. Exhibits WW(3) at 42; WW(4) at 36; Hearing Transcript, Vol. I at 252-53, 291; Vol. III at 906-07, 944, 974-75.
The principals of TASC agreed to use the services of each of their separate firms to the extent necessary to service the CA Contract. Exhibits WW(2) at 33-34, 37; WW(3) at 48; WW(4) at 39; WW(5) at 75-76; Hearing Transcript Vol. I at 290-91, 304-306, Vol. III at 973. This agreement was not disclosed in TASC's application for the CA Contract.
TASC did not disclose that the 47 employees listed in its application included the employees of each of the five principals' individual firms and that the principals intended to keep them separately employed by their individual firms, although some employees ultimately might be employed by TASC. Hearing Transcript, Vol. I at 264-65, 307-08; see Exhibit WW(1) at 35-36.
The School Board requires that any persons or firms not providing full-time services be listed in the application as consultants. Hearing Transcript, Vol. III at 799- 800.
The five TASC principals claim to employ the following numbers of personnel:
Salaga (Atelier Architects) has between 4 and 6 employees, Exhibit XX(5) at 3, 11; Hearing Transcript, Vol. III at 897;
Lemuel Ramos & Associates, Inc., has between 15 and 17 employees, Exhibit WW(3) at 4;
San Martin Associates, Inc., has 7 employees, Exhibit WW(1) at 43;
Novo (PACE) has 14 employees, Exhibit WW(5) at 4; and
Jorge S. Azze, Architect, P.A., has 3 employees, Exhibit WW(4) at 5.
The five principals of TASC employ through their separate firms, between 43 and 47 people. Not all are full-time employees.
It is not possible to determine what employees TASC had at the time it submitted its application for the CA Contract. The principals of TASC gave different accounts of the number of persons actually employed by TASC on that date:
Salaga maintained TASC had 47 employees. Hearing Transcript, Vol. III at 921, 972-73.
Ramos testified in deposition that TASC had between 15 and 20 employees, Exhibit WW(3) at 48. Ramos testified at the hearing that he did not count the number of employees TASC had, but that he believed it was 47. Hearing Transcript, Vol. I at 254.
San Martin maintained TASC has 8 employees. Exhibit WW(1) at 15.
Novo maintained TASC has no employees other than the employees of the principals' separate firms. Exhibit WW(5) at 79. Novo stated that TASC hoped to employ between 15 and 20 full-time employees. Exhibit WW(5) at 78; see also Finding of Fact 98d, post.
Azze maintained TASC employs only the principals, but has interviewed three people it hopes to hire. Exhibit WW(4) at 43.
TASC claims in its application (Exhibit Q) that the following persons are among its employees; yet each testified he has no employment agreement with TASC:
John L. Tennison is an architect in Tampa, Florida. He has no employment agreement with TASC. Salaga only discussed with him doing administrative work for TASC, but did not discuss specifically the nature of the administrative work. Exhibit XX(1) at 9.
Miguel A. Manteiga is not employed by TASC. He is employed by Lemuel Ramos & Associates, Inc. Exhibit XX(2) at 9.
Thomas T. Cooper is not employed by TASC. His future employment with TASC depends upon whether TASC is awarded the CA Contract and what type of profit-sharing arrangement and benefits TASC will offer. Exhibit XX(3) at 17, 14-15.
Guillermo Gonzalez is an employee of PACE. He does not have an employment agreement with TASC, but has been told by Novo that if TASC is awarded the consulting architect contract, he will work for TASC. Exhibit XX(4) at 3, 7, 12.
Edmond M. Maurice is an employee of Atelier Architects. Whether he would be employed by TASC was not discussed the first time he met with the principals of TASC: "It was understood." Maurice has agreed to work for TASC at a salary of $50,000 per year as soon as it gets work for him to do. Exhibit XX(8) at 3, 8-9, 12.
Lester F. Clayton is a part-time employee of Lemuel Ramos & Associates, Inc. Clayton made "a verbal commitment to be an employee" of TASC in June, 1986. The agreement was not in effect when TASC's application was submitted to the School Board on May 9, 1986 listing him as "Manager of Consultant Services." Exhibit XX(6) at 3, 13.
TASC has never paid any employee a salary. Hearing Transcript, Vol. I at 254, Vol. III at 916, 946-47; Exhibit WW(4) at 42.
TASC lists in its application the prior experience of the 47 employees it claims in support of its contention that it has had substantial school-related experience. At least a part of the experience listed consists of projects performed by persons who have no employment relationship with TASC. Hearing Transcript, Vol. II at 649-651. See Finding of Fact 98, ante.
The definition of "employee" utilized by TASC in claiming 47 employees is not a definition which is accepted by the School Board staff. Had TASC disclosed the true nature of its relationship with the employees it listed, the School Board staff should have rejected the application as it did the other applications of the firms which disclosed consulting or joint venture
relationships. Hearing Transcript, Vol. III at 986-87, 802-03. Finding of Fact 22, post. Although it had a valid corporate charter, TASC functions like a joint venture, not as a single, integrated architectural-engineering firm.
TASC stated in its application that it had no consultants. Hearing Transcript, Vol. III at 923; Exhibit Q, SF 255, paragraph 6 at 4.
The principals of TASC have an oral agreement that each of them will be paid an equal salary based upon the amount of money TASC makes, plus an equal hourly rate for time expended. Exhibit RR at page 1, paragraph 6; Exhibits WW.
The oral agreement regarding compensation to principals was not disclosed in TASC's MBE Certification Statement, nor was it otherwise communicated to the School Board. Exhibit S at unnumbered page 5, paragraph (b); Hearing Transcript, Vol. II at 551-60.
The existence of an oral agreement to divide salaries equally should have been disclosed in the MBE Certification Statement since such an agreement bears on whether the applicant is actually owned and controlled by minorities. Hearing Transcript, Vol. II at 552-53.
TASC did not have its own office when it filed its application on May 9, 1986. Exhibit WW(3) at 58; Hearing Transcript, Vol. I at 254; Vol. III at 911. TASC also did not have a lease for office space. TASC has since entered into negotiations for lease of 3,000 square feet of office space, but does not have an executed written lease agreement. Exhibit WW(3) at 59; Hearing Transcript, Vol. I at 255-56, Vol. III at 978-979.
TASC has also considered purchasing 15,000 square feet of office space to be allocated as follows:
TASC 5,000
Atelier Architects (Salaga) 1,000 Lemuel Ramos & Associates, Inc. 3,000 San Martin Associates, Inc. 2,000 PACE (Novo) 3,000
Jorge S. Azze, Architect, P.A. 1,000
The office will be on the same floor so that the companies can work together. Hearing Transcript, Vol. I at 289-90; Exhibit WW(4) at 49.
The square footage allocated to TASC is not sufficient to accommodate
47 employees and the School Board's as-built drawings, which the consulting architect is required to store. Hearing Transcript, Vol. III at 982.
At the time it submitted its application for the consulting architect contract, TASC did not have a telephone listed in its name, but used the telephone number of Ramos & Associates, Inc. Exhibit WW(3) at 57. Hearing Transcript, Vol. III at 911-12.
Four of the principals of TASC, Ramos, Novo, Azze and San Martin have provided substantial professional services to the School Board through their separate corporate entities during the preceding five years. Exhibit Q.
TASC was not licensed and did not have a certificate of authorization to practice or to offer to practice architecture on May 9, 1986. Hearing
Transcript, Vol. I at 267- 68. TASC did not so advise the School Board. Hearing Transcript, Vol. I at 269-70.
TASC's submission of a letter of interest and an application for the CA Contract was an "offer" to provide architectural services. Cf. Hearing Transcript, Vol. I at 269.
On June 20, 1986, TASC submitted to the Board of Architecture, Department of Professional Services, an application for certification to practice architecture. Exhibit T.
MBE Certification
On June 11, 1986, TASC submitted a sworn MBE Certification Statement to the School Board as part of the application process for the CA Contract. Exhibit S.
The School Board's MBE staff certified TASC as an MBE owned and controlled at least 51 percent by women. Hearing Transcript, Vol. II at 549.
Minority status is determined by a two-part test of ownership and control. Hearing Transcript, Vol. II at 550-51.
The MBE staff relied upon the information TASC submitted in its certification statement and accepted the information as true. Hearing Transcript, Vol. II at 547-49. It conducted no independent investigation to determine whether TASC was in fact a legal entity other than a joint venture legitimately owned and controlled by women. Hearing Transcript, Vol. II at 560- 62.
The same certification procedures were applied to all MBE applicants, including Spillis Candela. Hearing Transcript, Vol. II at 560.
TASC was the only allegedly black-owned or women- owned entity to apply for the CA Contract. See Exhibit V: BC/I evaluation forms. TASC received the highest possible score of 450 in category 8 for MBE participation. See Exhibit U at unnumbered page 2.
On June 11, 1986, Spillis Candela submitted a sworn MBE Certification Statement to the School Board as part of the application process for the consulting architect contract. Exhibit PP.
Spillis Candela was certified as an Hispanic MBE and received the maximum 90 points available to an Hispanic firm in category 8 for MBE participation. See Hearing Transcript, Vol. II at 562; Vol. III at 721-22; Exhibit U at unnumbered page 2.
Evaluation of the Applications
by the Capital Improvements Committee
School Board staff reviewed the applications for the CA Contract and determined that some applicants disclosed on their applications that they did not have the required full-time architectural and engineering employees in- house. Those applicants were eliminated from consideration. Hearing Transcript, Vol. II at 620-623.
The Capital Improvements Committee reviewed and rated applications on the eight categories listed in Form BC/I and then conducted interviews of the top five applicants for the CA Contract using form BC/II to rate performance at the interview. The Capital Improvement Committee assumed the validity and accuracy of all of the information provided by TASC and undertook no independent investigation of it. Hearing Transcript, Vol. I at 183-84, 187, 644-45.
TASC received identical scores from each of the nine evaluators in the following categories:
Factor | Rating | Weight | Score |
1. Location of Office | 10 | 4 | 40 |
2. Years Firm/Individual 6. Recent Projects with School Board Firm/Individual | 0 10 | 3 | 0 30 |
8. MBE Participation | 10 | 5 | 50 |
See Exhibit U at unnumbered page 2. | |||
125. TASC received a total of | 360 points | in category | 1 for having a Dade |
County office. (40 points x 9 evaluators) Exhibit U at unnumbered page 2. It should not have received those points, for TASC did not have a Dade County office of its own on the date it filed its application. Findings of Fact 106- 108, ante. Hearing Transcript, Vol. II at 651-52.
TASC received 309 points in category 3 for the collective experience of the persons listed as employees in its application. The experience for which TASC received credit is attributable to persons with whom TASC had no employment relationship. Hearing Transcript, Vol. II at 650. TASC received more points than it should have received in category 3, but it is not possible to determine, on the basis of the record, how many fewer points should have been given.
TASC received 134 points in category 4 for staff background and experience, and having all requisite expertise in- house. TASC did not have the staff described in its application on the date it submitted its application, and was not entitled to the points it received in category 4. Hearing Transcript, Vol. II at 645-649.
TASC received 309 points in category 3 for the substantial school- related work claimed by its principals and "employees," including a substantial amount of work done for the School Board in the preceding five years. In category 6, TASC, as an entity, received 270 points for not having done any School Board work in the preceding five years, which is inconsistent. Exhibit U, unnumbered page 2.
On July 8, 1986, School Board staff notified the Capital Improvements Committee that the evaluation of CA candidates was completed. Spillis Candela was listed number two with a total score of 3193. TASC scored only twenty-two more total points than Spillis Candela. Exhibit U. This determination was erroneous for TASC received 360 points it was not entitled to in category 1, and excessive points in categories 3, 4 and 6. The rankings were as follows:
1. TASC 3215
Spillis Candela 3193
Wolfberg, Alvarez
& Associates | 3085 |
4. Harper/Buzinec/Carreno | 3073 |
5. Smith Korach Hayet | |
Haynie Partnership | 2732 |
Staff recommended that the Capital Improvement Committee (1) confirm the rankings at its regular meeting on July 14, 1986, (2) negotiate the consulting architect contract with TASC and (3) make a recommendation to the School Board to approve the contract at its July 23, 1986 meeting. Id.
Blank explained to the Minority Contracting Committee at its July 24, 1986 meeting, that he felt the point scoring system had overcompensated firms for MBE participation. After scoring the applicants using Board form BC/I (the first phase of the selection process), MBEs were listed as number one for all four major contracts. Hearing Transcript, Vol. II at 695-96.
Novo and San Martin did not, as members of the Minority Contracting Committee, at any time prior to their forming TASC or at any time thereafter, file a public disclosure statement in connection with their application for the CA Contract.
The School Board did not, and has not, at any time voted to exempt Novo and San Martin from the conflict of interest provisions of Sections 112.313(3) and 112.313(7), in connection with the CA Contract.
The School Board did not provide the notice of its intended decision to enter into negotiations with TASC for the CA Contract, in the form required under Section 120.53(5)(a), Florida Statutes (1985) to Spillis Candela or any other applicant for that contract.
Subsequent School Board Action
On July 9, 1986, the School Board directed staff to allow Emergency Rule 6Gx13-ER 85-86 No. 6 on MBE participation to expire, and to hold the selection of a consulting architect in abeyance pending the adoption of a new rule on MBE participation, which would treat all minorities equally. Exhibit W at 4, Item D-3.
On July 10, 1986, the Board of Architecture, Department of Professional Regulation, issued TASC a Certificate of Authorization to practice architecture. Exhibit X.
On July 15, 1986, the emergency rule expired by its own terms. See Section 120.54(9)(c), Florida Statutes (1985); Exhibit O.
On July 23, 1986, the School Board rescinded its July 9, 1986 action and directed staff to continue the selection process for the consulting architect as established under the expired emergency rule. Exhibit Z at 4, Item 5-72.
The School Board has stayed negotiating the consulting architect contract with TASC. See Section 120.53(5)(c), Florida Statutes (1985).
The School Board has also stayed the selection process for the other three consultant contracts which were the subject of the emergency rule. Hearing Transcript, Vol. III at 697-98.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has Jurisdiction
TASC maintains the Division of Administrative Hearings has no jurisdiction in this matter because it does not involve a bid protest within the meaning of Section 120.53(5), Florida Statutes (1985), and that if there could be jurisdiction in this situation, the protest of Spillis Candela came too late.
Under the Consultants' Competitive Negotiations Act, an agency evaluates written submissions from those seeking to provide architectural, engineering and other services. The School Board did this by scoring the applicants using form B/C I for all firms, and then requiring presentations from the top five firms. Section 287.055(4)(a), Florida Statutes (1985). After selecting the three most highly qualified firms, negotiations should begin with the firm given the highest evaluation. If the Board and that firm cannot come to terms, negotiations are terminated and the Board seeks to reach agreement with the second, or if necessary, the third most highly qualified firm. Section 287.055(5)(b) and (c), Florida Statutes (1985). Unlike ordinary bid situations, a firm's presentation is not statutorily required to include a price for its services; price is not a necessary element in ranking firms from best to least qualified. An agency may, by rule, make price an element of a presentation which would then be evaluated. City of Jacksonville v. Reynolds, Smith and Hills, 424 So.2d 63 (Fla. 1st DCA 1982), review denied, 433 So.2d 519 (Fla. 1983). The School Board has not chosen to require price as an element to be evaluated in application for the contract at issue.
TASC argues that because the School Board is not evaluating price, the Consultants' Competitive Negotiations Act involves no bid, and the bid protest procedure of Section 120.53(5), Florida Statutes (1985), does not apply. The short answer is that the procedure for resolving protests established in that section of the Administrative Procedures Act says that the procedure applies where "an agency . . . enters into a contract pursuant to the provisions of . . . Chapter 287." The Division of Administrative Hearings has jurisdiction over this matter even though a bid in the usual sense of an offer to provide a service or a commodity at a fixed price is not involved.
Neither is the protest of Spillis Candela time barred. A protest must be filed within 72 hours after posting of a bid tabulation or after receipt of notice of an agency's intended decision. Section 120.83(5)(b), Florida Statutes (1985). The statute also describes in detail the form a valid notice of decision or intended decision must take. The notice must be posted at the location where the bids were open or be mailed by certified mail and must contain the following language:
Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes.
Section 120.53(5)(a)(2), Florida Statutes (1985). The prescribed posting or notification by certified mail of the Board's decision to rank TASC the most qualified firm has not occurred. See Finding of Fact 134, ante. The 72 hour protest period has not begun to run. The earliest time that spill is Candela knew that the Board might treat TASC as the most qualified firm was after the vote taken on agenda item B-72 at the School Board meeting of July 23, 1986.
Finding of Fact 138, ante. Spillis Candela filed its protest on July 25, 1986. Even if a notice which fails to conform with statutory requirements could be treated as beginning the 72 hour protest period, the protest is timely.
Spillis Candela is not Estopped to Protest
The School Board argues that Spillis Candela acquiesced in the manner in which the Board staff scored categories 3, 6 and 7 in this matter, because Spillis Candela used form BC/I in the same way when evaluating individual project architects as part of its duties as the consulting architect to the School Board over the years. School Board submitted evidence that in the past it has awarded points attributable to an individual architect in category 3 for prior work done for the Board and also granted points in category 6 if the applicant firm employing that architect had not done work for the School Board before as a firm. Hearing Transcript, Vol. III at 723. This provides no basis for estoppel. The Board has not placed in evidence any final orders evidencing this past practice as Board policy. Any prior action was free-form action subject to revision in a Section 120.57(1) proceeding. How to treat points granted to project architects in evaluation category 3 and points granted to the firm in category 6 has not been a dispositive point in any evaluation before, at least as far as the record in this matter discloses. The manner in which this point allocation has been made informally does not control the issue in a formal proceeding under Section 120.53(5) or 120.57(1), Florida Statutes, and does not estop Spillis Candela from litigating the issue here. Capeletti Brothers, Inc.
v. State Department of Transportation, 302 So.2d 347 (Fla. 1st DCA 1978). An agency's interpretation of its own rules is entitled to deference when that interpretation is made in a formal proceeding culminating in a final order, because the parties and the agency have had the opportunity to develop and examine alternative interpretations, and after the opportunity for searching inquiry, the agency has made an informed policy choice. The agency's interpretation proffered in the course of a de novo proceeding such as this one, which has never before been adopted by rule or in any final order, is entitled to little if any deference. One of the purposes of this proceeding is to afford the School Board the opportunity to change its mind and adopt a protestor's view of the proper interpretation of the instructions for awarding points using form BC/I. Couch Construction Co., Inc. v. Department of Transportation, 361 So.2d 172, 175-76 (Fla. 1st DCA 1978). Spillis Candela may challenge the policy of granting points to individuals for prior work in category 3 and also granting points to their firms in category 6 for not having done School Board work in the past five years.
TASC is not Entitled to be Considered for the Consulting Architect Contract
No party has challenged the policy of the School Board requiring applicants for the CA Contract to be full service architectural engineering firms, with the ability to provide all necessary services from within the firm rather than by hiring consultants or joint venturing with other firms. See Finding of Fact 62, ante. Nor has any party attacked the rationality of the policy disqualifying joint ventures from consideration for the CA Contract because the Board believes that its consulting architectural firm should have a proven track record of working harmoniously as a firm, something which an ad hoc joint venture cannot show. It is therefore taken as established in this proceeding that the non-rule policy of the Board is an appropriate one.
TASC is not a full service architectural-engineering firm in any recognizable sense. Its principals have never worked together as a firm on any project. The evidence shows they have no clear idea who, other than themselves, are employees of TASC. When the application was submitted to the School Board TASC had no business location of its own in Dade County or anywhere else. Its application constituted an offer to provide architectural services within the meaning of Section 481.219(1), Florida Statutes (1985), but it did not hold at that time a certificate of authorization to offer to practice architecture as required by Section 481.219(1)(b), Florida Statutes (1985). When it submitted its application, it was not "qualified pursuant to law" and was ineligible under Section 287.055(3)(c), Florida Statutes (1985). Cf. Greenhut Construction Co.
v. Henry A. Knott, Inc., 247 So2d 517 (Fla. 1st DCA 1971) (construction company not registered with Construction Industry Licensing Board at time its bid to construct state building submitted ineligible to receive the contract). Despite the corporate charter issued on the date it filed its application, as of the application date TASC would properly be characterized as an undisclosed joint venture illegally offering to provide architectural services. Its application should have been rejected by the staff of the School Board without evaluation.
TASC's Application was Erroneously Scored
Even if TASC was entitled to have its application evaluated, the points awarded to it by the evaluators for the School Board were excessive. TASC should not have received any of the 360 evaluation points given by the evaluators in category 1 for its nonexistent business location in Dade County. Neither should points have been ascribed to TASC for the experience of people disclosed in the application as TASC employees; they were people TASC hoped to
employ in the future. The 134 points given in category 4 to TASC are overstated because the evaluators took the application at face value and assumed the employees listed were current employees of TASC. The 134 points awarded to TASC should be reduced.
The way in which the instructions read for completing category 6 of the evaluation, concerning recent projects, leads to the conclusion that the practice of awarding points for the work of TASC's individual principals in category 3, and also awarding points to TASC as an entity in category 6 for not having done work for the School Board cannot be sustained. The instructions are incorporated by reference in Board Rule 6Gx13- 2C-1.08. They are found in Exhibit N (page 9b of 11). The instructions indicate a dichotomy between the firm which is receiving points in category 6 and the points to be granted under categories 3 and 4 for the experience of the firms or individuals being evaluated. If the individuals receive points in categories 3 and 4, then no points should be awarded in category 6. To do otherwise requires amendment of the evaluation form's instructions through appropriate rulemaking.
TASC's total evaluation was only 23 points higher than the evaluation of Spillis Candela. Three-hundred sixty points awarded to TASC in category 1 must be removed because they were awarded for having a nonexistent Dade County office. This alone it is sufficient to cause Spillis Candela to become the most qualified firm with which the Board should negotiate first, without reducing the points attributable to nonexistent employees in categories 3 and 4 and erasing the points awarded in category 6.
TASC is not Entitled to Minority Business Enterprise Points
TASC was not entitled to certification as a minority business enterprise to receive points in category 8, assuming points could be validly awarded in that category. The School Board ruled defining minority business enterprises specifically excludes joint ventures from the definition.
[Corrected Exhibit EE: Rule 6Gx13-3G-1.01 (II)(A)(1)]. Moreover, Salaga and San Martin had been allocated the majority of the stock in TASC to qualify as a women-owned firm, but a minority business enterprise must also be controlled by women. The Board of Directors who controlled the operations of the entity was made up of a majority of men. The argument that the shareholders control the Board of Directors, and therefore women control the corporation, impermissibly collapses the two part test of ownership and control into a single test of majority stock ownership. There is no basis in this record to conclude that the women actually control TASC. The 450 MBE points awarded to TASC must be disregarded.
Moreover, the emergency rule which amended the School Board's evaluation procedure to include points for minority business enterprises applying for the CA Contract is invalid because there was no emergency which authorized the use of emergency rulemaking procedures to create that category of points. See Final Order, DOAH Case No. 86-3246R, dated December 15, 1986. Spillis Candela had received 90 points as an Hispanic MBE firm in category 8. Spillis loses 90 of its 3193 points while TASC loses 450 of its 3215 points when category 8 MBE points are eliminated. Spillis Candela remains the most qualified firm according to the Board's evaluation procedures.
TASC is not Prohibited from Entering Into a Contract with the School Board
By Section 112.3175, Florida Statutes (1985)
Spillis Candela has argued that School Board is prohibited from entering into negotiations with TASC by Section 112.3175, Florida Statutes (1985), which states:
Any contract which has been executed in violation of this part is voidable:
By any party to the contract.
In any circuit court, by any appropriate action, by:
the commission.
the Attorney General.
any citizen materially affected by the contract and residing in the jurisdiction represented by the officer or agency entering into such contract.
Assuming that a factual basis for invoking this remedial provision had been proven, the statute itself specifies the forum in which the remedy created must be pursued: the circuit court. The Division of Administrative Hearings has no equity jurisdiction to void contracts.
No violation of the Code of Ethics for Public Officers and Employees, Chapter 112, Part III, Florida Statutes (1985), was proven, however. There is no evidence that Tony Novo voted for any resolutions in the Minority Contracting Committee which culminated in the adoption by the School Board of minority business enterprise evaluation points. Lourdes San Martin voted for the proposal made during the March 27, 1986, meeting of the Minority Contracting Committee and voted at the April 14, 1986, meeting for the resolution which led
to the adoption by the School Board of the MBE points, but when she did so she had no intention of taking advantage of those points. See Finding of Fact 61, ante. Only after April 22, 1986, when Ramos had withdrawn the joint venture application he submitted with Novo and Azze for the CA Contract did Ramos approach San Martin (and Salaga) to become involved in the new corporation he formed. That a corporate charter was issued to TASC only on the day its application was submitted, that its certificate of authorization to practice architecture was not issued until July 10, 1986, and that portions of the Ramos- Novo-Azze application (such as the transmittal letter used in the TASC application) found their way into the TASC application indicate that the application was hurriedly assembled between April 22 and May 9, 1986. No principal of TASC had contemplated making a submission under the affirmative action provision enacted in the emergency rule when they were advising the School Board as members of the Minority Contracting Committee. Novo and San Martin did not corruptly use their positions as members of the Minority Contracting Committee to secure the CA Contract in violation of Section 112.313(6), Florida Statutes (1985), because Novo and San Martin had no conflict of interest when they attended Minority Contracting Committee meetings or when they voted. The school Board therefore had no occasion to invoke the exemption provisions of Section 112.313(12), Florida Statutes (1985). San Martin and Novo had no duty to make any disclosures under Section 112.3143(3), Florida Statutes (1985), or Section 112.313(9)(a), Florida Statutes (1985).
There is No Reason Not to Award the Contract to Spillis Candela
Wolfberg, Alvarez submitted no evidence showing why, after the disqualification of TASC or the reduction of points awarded to it, Spillis Candela should not be treated as the most highly qualified candidate to negotiate for the CA Contract. The record supports negotiation of the contract with Spillis Candela without further evaluation by the Capital Improvements Committee or by the School Board of Dade County.
It is RECOMMENDED that the School Board of Dade County:
Enter a Final Order upholding the formal written protest filed by Spillis Candela and Partners, Inc. and
Negotiate pursuant to the provisions of the Consultants' Competitive Negotiations Act with Spillis Candela as the most highly qualified applicant to receive the consulting architect contract.
DONE AND ORDERED this 15th day of December, 1986, in Tallahassee, Florida.
WILLIAM R. DORSEY, JR.
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
FILED with the Clerk of the Division of Administrative Hearings this 15th day of December, 1986.
APPENDIX TO RECOMMENDED ORDER CASE NO. 86-3002BID
The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties.
Rulings of Proposed Findings of Fact Submitted by Petitioner
(Spillis Candela & Partners, Inc.)
The proposed findings of fact for Spillis Candela & Partners, Inc., have generally been accepted in the Recommended Order.
Rulings on Proposed Findings of Fact Submitted by Respondent
(The School Board of Dade County)
1-3. Rejected as statements of law.
Covered in Finding of Fact 16.
Covered in Finding of Fact 123.
Rejected as unnecessary.
Covered in Findings of Fact 16 and 123.
Rejected as unnecessary.
Rejected as unnecessary.
Generally rejected as unnecessary. Footnote 1 is rejected on the grounds that the existence of TASC's corporate charter does not control whether it should be treated as a joint venture given the findings of fact made in paragraphs 89-111.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected for the reasons stated in Conclusions of Law section V.
Rejected as unnecessary.
Rejected for the reasons stated in Conclusions of Law section III.
Covered in Findings of Fact 6, 20 and 67.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as irrelevant.
Rulings on Proposed Findings of Fact Submitted by Intervenor
(The Association of School Consultants)
1-4. Rejected as Conclusions of Law.
Rejected as unnecessary and covered in Finding of Fact 7.
Covered in Finding of Fact 7b.
Covered in Finding of Fact 8.
Covered in Findings of Fact 16 and 64.
Rejected as a restatement of law.
Rejected as unnecessary.
Covered in Findings of Fact 6-8.
Covered in Findings of Fact 1 and 64.
Covered in Finding of Fact 64.
Covered in Finding of Fact 20.
Rejected as unnecessary and inherent in Finding of Fact 20.
Covered in Finding of Fact 18.
Rejected as unnecessary.
Covered in Finding of Fact 20.
Covered in Finding of Fact 67.
Rejected as unnecessary.
21-22. Rejected for lack of transcript citation. See Rule 22I- 6.13(3), F.A.C.
Covered in Findings of Fact 68 and 77.
Rejected as unnecessary.
Covered in Finding of Fact 81.
Covered in Finding of Fact 81.
Rejected as irrelevant.
Covered in Finding of Fact 150.
Rejected as irrelevant.
Covered in Finding of Fact 153.
Rejected for lack of record support.
Covered in Finding of Fact 136.
Rejected as unnecessary.
Rejected as unnecessary.
Covered in Finding of Fact 93.
Covered in Finding of Fact 103. 37-40. Rejected as statements of law.
Covered in Finding of Fact 149.
Rejected as a statement of law.
43 Covered in Finding of Fact 103.
Rejected as irrelevant.
Rejected as irrelevant.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as a conclusion of law.
Rejected for the reasons stated in Finding of Fact 111.
Covered in Findings of Fact 105 and 106.
Rejected as unnecessary.
Covered in Findings of Fact 45-60.
53 Covered in Finding of Fact 45.
Rejected as unnecessary.
Covered in Finding of Fact 17.
Covered in Finding of Fact 27.
Covered in Findings of Fact 67-77.
Rejected as a statement of law.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected for the reasons stated in Finding of Fact 53.
Accepted in Findings of Fact 74 and 90. 63-66. Rejected as conclusions of law.
67-73. Rejected as unnecessary.
74. Rejected for the reasons stated in Findings of Fact 108- 113.
75-80. Rejected as conclusions of law. 81-84. Rejected as irrelevant.
Covered in Finding of Fact 148.
Sentence 1 covered in Finding of Fact 147, sentence 2 rejected as lacking record basis.
Covered in Finding of Fact 75-77.
Rejected as irrelevant.
Rejected as a conclusion of law.
Covered in Finding of Fact 131.
Rejected as unnecessary.
Covered in Finding of Fact 75 to the extent relevant. 93-95. Rejected as unnecessary.
96. Covered in Finding of Fact 136. 97-98. Rejected as unnecessary.
Rulings on Proposed Findings of Fact Submitted by Intervenor
(Wolfberg-Alvarez & Associates)
No findings of fact were submitted by Wolfberg-Alvarez & Associates.
COPIES FURNISHED:
Eugene D. Stearns, Esquire STEARNS, WEAVER, MILLER, WEISSLER,
ALHADEFF & SITTERSON, P.A.
One Biscayne Tower
2 South Biscayne Boulevard Miami, Florida 33131
Phyllis O. Douglas, Esquire
School Board of Dade County, Florida Suite 301
1450 N.E. Second Avenue Miami, Florida 33132
Bernard S Mandler, Esquire SMITH & MANDLER
1111 Lincoln Road Miami Beach, Florida
Gerhardt A. Schreiber, Esquire SCHREIBER, RODON-ALVAREZ, P.A.
430 South Dixie Highway Suite 10
Coral Gables, Florida 33146
Dr. Leonard Britton
School Board of Dade County, Florida Suite 301
1450 N.E. Second Avenue Miami, Florida 33132
Honorable Ralph D. Turlington Commissioner of Education The Capitol
Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
================================================================= THE SCHOOL BOARD OF DADE COUNTY, FLORIDA
SPILLIS CANDELA & PARTNERS, INC., )
)
Petitioner, )
) THE SCHOOL BOARD OF DADE COUNTY, )
) CASE NO. 86-3002BID
Respondent, )
and )
)
THE ASSOCIATION OF SCHOOL )
CONSULTANTS, and WOLFBERG, )
ALVAREZ & ASSOCIATES, )
)
Intervenors. )
)
FINAL ORDER
OF THE SCHOOL BOARD OF DADE COUNTY, FLORIDA
THIS CAUSE having come on for hearing before The School Board of Dade County, Florida, at its regular meeting of February 4, 1987, and the Board having reviewed the entire record in this case, considered the exceptions filed by the Association for School Consultants, and argument of counsel, it is therefore ordered by The School Board of Dade County, Florida, that:
The recommended order of the hearing officer, entered herein, be and the same is hereby adopted as the final order of The School Board of Dade County,
Florida, with the exceptions set forth below:
The finding of fact in paragraph 69 that Peter Spillis was not aware of "the School Board's MBE Program" is rejected as not based upon competent substantial evidence. Hearing Transcript Vol. III at 878-80, cited in the Recommended Order, does not support this finding.
Paragraph 97c is rejected as not based upon competent substantial evidence in that
Ms. San Martin actually testified that TASC had ten employees plus "others. Exhibit WW (1)pp. 15, 16.
The finding in paragraph 128 that granting points in category 3 to the principals and employees of TASC for their previous experience is inconsistent with the granting of points in category 6 because TASC, as an entity, had no recent projects with the School Board, is erroneous and is rejected as not based upon any competent substantial evidence or any evidence at all.
Similarly, the School Board rejects the hearing officer's conclusion of law on page 44, which reads:
"The way in which the instructions read
for completing category 6 of the evaluation, concerning recent projects, leads to the conclusion that the practice of awarding points for the work of TASC's individual principals in category 3, and also awarding points to TASC as an entity in category 6 for not having done work for the School Board cannot be sustained. The instructions are incorporated by reference in Board Rule
6Gx13-2C-1.08. They are found in Exhibit N (page 9b of 11). The instructions indicate a dichotomy between the firm which is receiving points in category 6 and the points to be granted under categories 3 and 4 for the experience of the firms or individuals being evaluated. If the individuals receive points in categories 3 and 4, then no points should be awarded in category 6. To do otherwise requires amendment of the evaluation form's instructions through appropriate rulemaking."
The School Board finds that it is perfectly appropriate and consistent to award points for the experience, public sector and otherwise, of applicants, but to also award points to applicants who have not had the opportunity to obtain recent projects with the School Board.
Granting points to firms which have not worked for the Board recently furthers a policy of equitable distribution of School Board work among the community's professional consultants and is a consideration mandated by the Consultant's Competitive Negotiation Act, 287.055, Fla. Stat. On the other hand, experienced consultants to the School Board's building program assure well built, safe school facilities.
Further, the School Board finds that Spillis' own attorney stipulated, "I don't think the form is incorrect. I don't think there is any problem with the form. I don't think the way it has been applied is incorrect in other cases." Transcript, Vol. III, p. 728.
The exceptions to that recommended order be and are hereby denied. Specifically, the
Board finds that:
The hearing officer's findings that TASC is not entitled to be considered for the Consulting Architect's Contract, due in part to the fact that TASC was not a full-service architectural engineering firm, is fully supported by the record and by the findings of fact.
The hearing officer's conclusion that TASC's application was erroneously scored (due to erroneous information provided by TASC) and that Spillis Candela & Partners, Inc. is in fact the most qualified firm with which the Board should negotiate is supported by the record. TASC did not challenge the qualifica- tions of Spillis Candela & Partners, Inc.
and, therefore, argument or any findings on this issue would be irrelevant to this case.
The hearing officer did not lose jurisdiction to rule on the emergency rule in this case by failing to make his deter- mination within the time limit set forth in Florida Statutes. Western Acc. Company v. State Department of Rev., 472 So.2d 497,
501 N.2 (Fla. 1st DCA 1985)
The School Board rejects the recommend- ation of TASC that it readvertise for appli- cants for the position of Consulting Archi- tect and begin this entire process again rather than enter into negotiations pursuant to the recommendation of the hearing officer.
DONE AND ORDERED this 4th day of February 1987. THE SCHOOL BOARD OF DADE COUNTY, FLORIDA
BY
Chairman
Copies furnished to:
Eugene E. Stearns, Esquire Bernard S. Mandler, Esquire Gerhardt A. Schreiber, Esquire Robert D. Korner, Esquire
Filed with the Clerk of The School Board of Dade County, Florida, this 5th day of February, 1987.
APPEAL OF FINAL ORDER
This Order may be appealed by filing notices of appeal and a filing fee, as set out in section 120.68(2), Florida Statutes, and Florida Rule of Appellate Procedure 9.110(b) and (c), within thirty (30) days of the date of the rendition of this Order.
| Issue Date | Proceedings |
|---|---|
| Dec. 16, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 04, 1987 | Agency Final Order | |
| Dec. 16, 1986 | Recommended Order | School Board misapprehended its own bid specifications, erroneously awarded contract; architectual consulting firm protestor should be awarded contract. |
