STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SPILLIS CANDELA & PARTNERS, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 86-3246RE
) THE SCHOOL BOARD OF DADE COUNTY, )
)
Respondent, )
and )
)
THE ASSOCIATION OF SCHOOL )
CONSULTANTS, and WOLFBERG, )
ALVAREZ & ASSOCIATES, )
)
Intervenors. )
)
FINAL ORDER
This matter was heard in Coral Cables, 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.
APPEARANCES
For Petitioner: Eugene E. Stearns, Esquire
Spillis Candela & Partners, Inc.
For Respondent: Phyllis O. Douglas, Esquire
School Board of Dade County
For Intervenor, The Association of School
Consultants, Inc.: Bernard S. Mandler, Esquire
For Intervenor,
Wolfberg, Alvarez
& Associates: Oerhardt A. Schreiber, Esquire
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 selection of contractors is governed by the Consultants' Competitive Negotiation Act, Section 287.055, Florida Statutes (1985), and the procedure found in School Board Rule 6Ox13-2C-1.08. 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 consideration of its application and an interview, it was selected the next most qualified firm 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. (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 were put in issue by a protest filed by Spillis Candela after TASC was chosen the most qualified firm to negotiate for the 1986- 1989 CA Contract. The protest was heard with this rule challenge proceeding.
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 proposed findings of fact.
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.
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 6Ox13 ER 85-86 No. 6. The rule challenge was assigned Division of Administrative Hearings Case No. 86-3264R; it was consolidated and heard simultaneously with the bid case. A separate recommended order has been entered in that case.
ISSUES FRAMED BY THE PARTIES
Position of Spillis Candela
School Board Emergency Rule 6Ox13 ER 85-86 No. 6 added to the evaluation procedure for the selection of professional architectural and engineering consultants a new evaluation category (Category 8). It awards evaluation points to applicants owned and controlled by minorities. Spillis Candela contends that the rule is an invalid exercise of delegated legislative authority, violates its constitutional rights to due process and equal protection of the law, and is arbitrary and capricious. It is void ab initio, and category 8 of the evaluation form awarding points to Minority Business Enterprises (MBE) should be eliminated for the following reasons:
No emergency existed to justify adoption of the rule.
An emergency rule is effective for a period of only ninety days and cannot be applied to a three year contract.
The emergency rule expired on July 15, 1986, and could not have been renewed or revived on July 23, 1986, when the School Board applied it to the selection process at issue here.
No statistical or other evidence existed to justify changing the Minority Business Enterprise (MBE) goals established in 1985-86 by the School Board for the four major architectural consultant contracts, among which is the contract at issue
here.
No statistical or other evidence existed to justify adopting the emergency rule's MBE point scoring system, which gave black and women firms 10 evaluation points and Hispanic firms 2 evaluation points per evaluator, multiplied by a weight factor of 5.
The emergency rule was not intended to remedy past discrimination. It was intended to advance the interests of one minority group against another, based upon a perceived need not founded in fact.
The emergency rule constitutes an unconsti- tutional detriment to Spillis Candela based solely upon the ethnic origin of its principals.
Position of the School Board
The School Board contends that Rule 6Gx13 ER 85-86 No. 6 is a valid exercise of the School Board's authority for the following reasons:
An emergency justified adoption of the rule. The Board's current consulting contracts were expiring. A delay in awarding new contracts would delay delivery of new schools and improvements required to relieve overcrowding and delay renovations affecting the health, safety and welfare of students and staff. If the minority point system were not immediately implemented, blacks and women would not have been able to equitably
participate in a selection process which would result in the award of a contract of three years duration.
The emergency rule was enacted solely for the purpose of evaluating competing firms.
It was effective for 90 days. It did not expire until after the competing firms had been ranked in order of preference as provided for in Section 287.055(4), Florida Statutes
(1985). TASC then had the right pursuant to Section 287.055(5)(a), Florida Statutes (1985), to negotiate with the School Board. Negotiations will proceed under the permanent rule.
The emergency rule applied only to evaluation, not to contract administration. It is immaterial that the contracts which will be entered into pursuant to the selection procedure will be of three years duration.
The emergency rule was not revived or renewed on July 23, 1986.
The emergency rule did not change the Minority Business Enterprise (MBE) goals previously established for 1985-86 in School Board Rule 6Gx13-3G-1.02.
No female or black firm had ever held any of the four contracts at issue. That fact, plus the requirement of Section 287.055(3)(d), Florida Statutes (1985), the statistical study previously performed for the School Board and the School Board's MBE goals justified the
MBE point-scoring system, which gave black and women firms 10 points and Hispanic firms
2 points per evaluator, multiplied by a weight factor of 5.
The emergency rule was intended to remedy past discrimination, to help the School Board achieve its MBE goals and to comply with Section 287.055, Florida Statutes (1985), by considering MBE status in the evaluation procedure.
The emergency rule was not intended to preclude Spillis Candela from being selected the best qualified firm to negotiate for the consulting architect contract. Had Spillis Candela been rated higher in other evaluation categories, it would have been rated number one. The rule did not violate Spillis Candela's rights.
Spillis Candela is estopped or has waived the right to challenge now the evaluation procedure in which it willingly participated.
Spillis Candela has been the School Board's consulting architect for many years.
It was aware of the proposal and passage of the emergency rule and did not oppose it through administrative procedures. It immediately filed an application, appeared for an interview, and accepted the extra points to which it was entitled under the emergency
rule as an Hispanic MBE.
Spillis Candela's conduct at all times led the School Board to believe that it was
satisfied with the procedure. Had Spillis Candela opposed the emergency rule at its inception, the School Board may well have changed the rule in a manner acceptable to Spillis, or not passed it at all. The School
Board relied on Spillis' willing participa- tion and did not consider any of the issues Spillis raises. Now rights have accrued to TASC under the Consultants' Competitive Negotiation Act, and the School Board cannot act on Spillis' tardy objections. Spillis is estopped to challenge the rule when it could have timely opposed it, and by participating in the process (and taking the benefit of bonus points) which it now challenges.
In any case, since the rule has now expired, it is too late to challenge the rule.
Position of TASC TASC contends that:
Spillis Candela has waived its right to object to the emergency rule or is estopped from contesting it for failure to object to the enactment of the emergency rule. It was present and was afforded an opportunity to be heard at the meeting in which the rule was adopted. It then proceeded through the selection process under the emergency rule.
It also unduly influenced the School Board on July 9, 1986, to stop the process and cannot now take advantage of the delay it wrongfully induced.
The emergency rule did not change the goals of the Dade County School Board.
A sufficient emergency existed to justify the enactment of the emergency rule.
The emergency rule was promulgated to comply with the School Board's policy of encouraging minority participation which had been established in February of 1985 and the affirmative action goals set at that time. It was also promulgated to further comply with Section 287.055(3)(d) and (4), Florida Statutes (1985).
The emergency rule is not effective beyond ninety days and may, as a matter of law, be applied to a contract, the term of which is
in excess of ninety days.
Both the bid protest and rule challenge are time barred by Rule 28-5.111, F.A.C., [Model Rules of Procedure]. IV. Position
of Wolfberg, Alvarez
The proposed recommended order submitted by Wolfberg, Alvarez filed in the rule challenge proceeding raises issues more appropriately dealt with in the consolidated bid protest proceeding, and are addressed in that Recommended Order.
It is not necessary to deal with all the issues raised by the parties, however, because the dispositive issue is the lack of an emergency which would authorize the use of emergency rulemaking proceedings.
FINDINGS OF FACT
The General Procedure for Selection of Architects and Engineers by the School Board
Section 287.055, Florida Statutes (1985), the Consultants' Competitive Negotiation Act, sets the procedure by which school districts, and other state and local governmental agencies must select architects, engineers and other related professionals. Section 287.055(3)(d) provides:
Each agency shall adopt administrative procedures for the evaluation of professional services, including, but not limited to, capabilities, adequacy of personnel, past record, experience, whether the firm is a certified minority business enterprise as defined by the Florida Small and Minority Business Assistance Act of 1985, and such other factors as may be determined by the agency to be applicable to its particular requirements. When securing professional services, an agency shall endeavor to meet the minority business enterprise procurement goal set forth in Section 287.042.
(Emphasis supplied.)
An agency evaluates written submissions by applicants and may require public presentations regarding their qualifications, approach to the project and ability to furnish the required services. After to this evaluation:
The agency shall select , in order of preference, no fewer than three firms deemed to be the most highly qualified to perform to the required services. In determining whether a firm is qualified, the agency shall consider such factors as the ability of professional personnel; whether a firm
is a certified minority business enterprise; past performance; willingness to meet time and budget requirements; location; recent, current, and projected workload of the firms; and the volume of work previously awarded to each firm by the agency, with
the object of effecting an equitable distribution of contracts among qualified firms, provided such distribution does not violate the principle of selection of the most highly qualified firms. Section 287.055(4)(b), Florida Statutes (1985). (Emphasis added.)
When the order of preference has been established
The agency shall negotiate a contract with the most qualified firm for professional services at compensation which the agency determines
is fair, competitive, and reasonable. Section 287.055(5)(a), Florida Statutes (1985). If
the agency is unable to negotiate a satisfactory contract with that firm, it is then required to go on to negotiate with the next most qualified firm until the list is exhausted.
The School Board has incorporated by reference and made a part of School Board Rule 6Ox13-2C-1.08 an 11-page document entitled "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". Exhibit DD. This document complies with the Consultants' Competitive Negotiation Act. It contains two forms for use in evaluating applicants for architectural and engineering consulting services. Form BC-I contains seven categories for assessment. Exhibit N, page 9 and School Board's Exhibit 2. These categories include location of office, years the firm or individual has been established, the experience of the firm or individual, the background and experience of staff, capabilities of the organization, recent projects with the School Board (this category is designed to give points to firms which have not worked for the School Board in the past), and an evaluation of previous or current performance on School Board work. These factors are legitimate considerations pursuant to the Consultants Competitive Negotiation Act; Petitioner has not challenged the appropriateness of the form. Hearing Transcript, Vol. III, page 728.
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 6Ox13-3O-1.01(II)(E) at page 3 of 5, and 6Ox13-3O- 1.04, unnumbered paragraph 2 at page 1 of 6.
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 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 4b, 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(111) (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)(s)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 6Ox13-3O-1.02(IV).
The School Boards 1985-86 Annual MBE Coals
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 6Ox13-3O-1.02(II)(B)(3) at pages 2-3 of 4; Hearing Transcript, Vol. I at 159; Exhibit H at 3-4.
Annual goals remain in effect until modified by School Board rule. Corrected Exhibit EE: Rule 6Ox13-3O-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.
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 providing for affirmative action were adopted by the School Board for construction and purchase of commodities, however. 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, the administrators in charge of the Board's construction program, 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 the 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. Exhibit JJ at 116.
VIII, 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.
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 consulting architect is a major consultant upon whom the School Board relies heavily.
IX. The Emergency Rule
Only in the spring of 1986, did the Minority Contracting Committee begin to address affirmative action in consulting contracts. At a meeting on March 27, 1986, when the 1986-89 CA Contract had already been advertised, the committee adopted a resolution which was forwarded to the School Board, Exhibit
I. The resolution acknowledged that the Board was currently advertising for the selection of the consulting architect, the architectural projects consultant, the engineering projects consultant and the Uniform Building Code inspector, and that these were three-year contracts. The committee stated its belief that the
goals which had been established in School Board Rule 6Ox13-3O-1.02, were obsolete, although the committee had conducted no study of its own which led to that conclusion. It recommended new temporary contracting goals of 14 percent black, 12 percent women and 8 percent Hispanic. Exhibit I; Hearing Transcript, Vol. II at 519. The committee also recommended that an eighth category be added to Form BC-I to give applicants credit for MBE participation as follows:
Weight Points Factor | Total Possible Points | ||
Black | 26 x 5 | = | 130 |
Women | 22.5 x 5 | = | 112.5 |
Hispanic | 15 x 5 | = | 75 |
The primary concern of the Committee was that Spillis Candela had held the CA Contract, the largest of these four contracts for many years, and no black or female owned and controlled forms had ever held any of these four contracts. Hearing Transcript, Vol. III at 603.
A compromise was reached with the committee after School Board staff met with the Minority Contracting Committee's Professional Services Subcommittee on April 10, 1986, and the full Minority Contracting Committee on April 14, 1986. The staff believed the committee proposal would allocate an excessive number of evaluation points for minority status. The compromise was embodied in an agenda item on the School Board meeting agenda for April 16, 1986, which recommended the adoption of an emergency rule which would add an eighth category to Form BC-I for MBE participation. Instructions provided with the form allowed each evaluator to grant extra points which would be weighted as follows:
Weight Total Possible
Points | Factor | Points | |||
Black | 10 | x | 5 | = | 50 |
Women | 10 | x | 5 | = | 50 |
Hispanic | 2 | x | 5 | = | 10 |
The School Board Meeting of April 16, 1986
Sam Blank of the School Board staff prepared an 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 is Executive Assistant Superintendent, Office of Facilities Management, and is responsible for the Board's construction program. Hearing Transcript, Vol. II at 323. He expressed two major concerns about the compromise proposal 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 partici- pation 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.
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 B-38, entitled "Emergency Rule 6Ox13 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 6Ox13-2C- 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.
REASONS WHY PROCEDURE USED IS FAIR UNDER THE
CIRCUMSTANCES: Because the current contract [sic] for Professional Services expires June 30, 1986, and the current selection procedures do not provide for equitable participation by MBE firms.
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 5-38 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.
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 CA 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 HE; Section 120.54(9)(d), Florida Statutes (1985).
The availability of the CA 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. The 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.
On June 11, 1986, Spillis Candela submitted a sworn MBE Certification Statement to the School Board as part of the application process for the CA 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
The Capital Improvements Committee of the School Board 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 Committee selected Spillis Candela the number two firm with 3193 points, TASC was selected number one, with 3215 points, and Wolfberg-Alvarez was the number three firm with 3085 points. Exhibit U. XIII. 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 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 B-72.
The School Board has stayed negotiating the CA Contract with TASC pending the disposition of the bid protest. 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.
The School Board has continued the current CA Contract with Spillis Candela on a month-to-month basis pending the disposition of this rule challenge and the related bid protest. Hearing Transcript, Vol. III at 833.
CONCLUSIONS OF LAW
The Challenge to the Emergency Rule is Not Moot
The emergency rule expired on July 15, 1986. The decision of the School Board to apply the emergency rule to the evaluation process, assumedly because the rule was effective on the date the applications were submitted, renders this a continuing controversy. See Finding of Fact 41, ante.
Spillis Candela Has Not Waived Its Right to Challenge the Emergency Rule
The School Board and TASC have argued that by:
failing to object to the emergency rule at the meeting when the rule was adopted, and
filing an application, participating in the evaluation process and receiving MBE points as an Hispanic firm, Spillis Candela has forfeited any right to maintain a challenge to the emergency rule under Section 120.56, Florida Statutes (1985).
It is not necessary to exhaust any administrative remedy to challenge an agency finding that there is an immediate danger to the public welfare which necessitates immediate adoption of a rule. The statutory language that
the agency's finding of Immediate danger, necessity, and procedural fairness shall be judicially reviewable
found in Section 120.54(9)(a)(3), Florida Statutes (1985), has been held to authorize the filing of a proceeding for review directly in the District Court of Appeal, without any prior proceeding before the Division of Administrative Hearings or before a circuit court. Times Publishing Company v. Florida Department of Corrections, 375 So.2d 304, 305 (Fla. 2nd DCA 1979) (Times Publishing I); Times Publishing Company v. Florida Department of Corrections,
375 So.2d 307, 309 (Fla. 1st DCA 1979) (Times Publishing II); Postal Colony Company, Inc. v. Askew, 348 So.2d 338, 339 (Fla. 1st DCA 1977).
A public hearing on a proposed emergency rule is not required. The agency may follow "any procedure which is fair under the circumstances and necessary to protect the public interest." Section 120.54(9)(a), Florida Statutes (1985). There is no statutory requirement, if an emergency rule is adopted by a collegial agency head at a public meeting, that a party aggrieved by the proposed emergency rule appear and oppose it to preserve the right to challenge the agency's finding of immediate danger, necessity, or procedural fairness. The School Board's contention that if Spillis Candela's objection to the substance of the rule had been made known, it might have enacted a different rule is unavailing to bar a procedural challenge to the adequacy of the circumstances the agency published as the justification for emergency rulemaking procedures. Neither is that defense available to prevent a substantive challenge to the rationality of the emergency rule.
That Spillis Candela applied for and received certification as an Hispanic minority business enterprise and also received MBE points under the emergency rule also does not bar this action. Review of agency determinations to act by emergency procedure insures that dispensing with the normal period of publication and opportunity for public hearing occurs only in those narrow circumstances where the time inherent in publication and comment on a proposed rule would be seriously damaging to the public interest, and the agency may then take "only that action necessary to protect the public interest" using emergency
procedures. Section 120.59(9)(a)(2), Florida Statutes (1985). Times Publishing Company II, 375 So.2d at 310. Legislative policy to restrict emergency procedures to emergency situations is not served by creating a requirement that only a person who has received no benefit from the substance of an emergency rule may challenge it. As an Hispanic firm, Spillis Candela received MBE points but was eligible for fewer points than firms owned and controlled by blacks or women. Spillis Candela's ineligibility for as many points as black or female enterprise affects Spillis Candela in a sufficiently substantial way that it may maintain this proceeding under Section 120.56(1), Florida Statutes (1985).
Finally, Spillis Candela should not be denied access to administrative procedures because it did not oppose at the public meeting, in its capacity as the School Board's consulting architect, the proposal that MBE points be added to the criteria used to select architects and engineers. Of course, allocation of too many points for minority status could cause that status to override evaluation of technical competence. The question before the School Board, viz., whether to grant additional evaluation points for minority status is, at bottom, not a technical architectural question but a political one. Cf., Hearing Transcript, Vol. III, page 888, lines 11-18. The decision not to address the Board on the emergency rule at the April 16, 1986, meeting does not bar this action.
No Emergency Justified Emergency Rulemaking
The School Board's Statement of Emergency is Inadequate.
An agency which engages in emergency rulemaking does so at the risk that the grounds stated at the time of the adoption of the emergency rule will be found inadequate to support emergency action. Section 120.54(9)(a)(3), Florida Statutes (1985). The agency statement published when the emergency rule is promulgated may not be supplemented, even if additional facts sufficient to support emergency action are offered in the course of a proceeding challenging the emergency rule. Times Publishing Company I at 306. A statement that delay in awarding the CA Contract will have the effect of delaying the delivery of new schools and other improvements required to relieve overcrowding appears in the School Board's notice of intended action. That statement does not indicate how or why a delay in the selection of the four consultants (among which is the consulting architect), would delay the delivery of any new schools or improvements. Without a statement of facts explaining how delay in selection would lead to delays in delivery of buildings it is not possible to assess whether the Board's action was "only that action necessary to protect the public interest" as Section 120.54(9)(a)(2) requires. See also, Times Publishing Company II at 310. Specific factual statements are also essential to evaluate the "reasons for concluding that the procedure used is fair under the circumstances" as Section 120.54(9(a)(3) requires. A state of facts might have existed on April 16, 1986, which would have supported emergency action with respect to some but fewer than all four of the major architectural-engineering contracts. This cannot be determined from the conclusory statement made by the Board in support of its emergency action. Moreover, the ability of the Board to extend the CA Contract pending this decision shows that, as to that contract, the lesser action of extending the contract to allow for adoption of MBE evaluation points by regular rulemaking was an option available to the Board without the necessity for emergency rulemaking.
The Emergency the School Board Relied Upon Arose from an Avoidable Administrative Failure to Act.
The Omnibus Education Act which authorized consideration of minority business status when purchasing consulting services became effective on June 25, 1984. The Board created the Minority Contracting Committee on July 25, 1984. That Committee received a schedule for development of rules on January 31, 1985, which contemplated delivery of recommendations to the School Board on minority consultants which could have been adopted by ordinary rulemaking at the Board's meeting of July 24, 1985. For whatever reasons, the committee's recommendations were not forwarded to the Board as scheduled. The Committee's very failure to act was bootstrapped into a justification for emergency addition of minority business enterprise considerations into the evaluation of the applicants for the four major consulting contracts after the contracts had already been advertised. Enhancing the opportunity of minority groups which have historically suffered discrimination to compete for major contracts is a worthy goal, as the legislature found in the Omnibus Education Act. Postal Colony Co. v. Askew, 348 So.2d 338 (Fla. 1st DCA 1977), teaches that pursuit of a worthy goal is not sufficient to justify emergency rulemaking, however.
In Postal Colony emergency rules were adopted to guide development in the Green Swamp, an area of critical state concern. The statute creating areas of critical state concern required that development rules become effective within 12 months after designation or the designation terminated. Section 380.05(9), Florida Statutes (1985). In order to avoid loss of the designation, the Governor and Cabinet sitting as the Administration Commission adopted regulations for the Green Swamp by emergency rule. The Commission found that unless the Green Swamp was protected there would be an immediate danger to the water supply in central Florida. 348 So.2d at 342. The rules were stricken by the Court of Appeals because the emergency did not arise from development of wetlands which threatened the water supply "but rather by an avoidable administrative failure to make the necessary regulations effective within the time allowed." Id.
An analogous situation is presented here. The failure of the School Board to have incorporated minority business enterprise factors into the procedure which it had adopted by rule governing evaluation of applications for the CA Contract will not support emergency rulemaking. The Board, its staff, and the Minority Contracting Committee had adequate time to proceed by regular rulemaking. See also, Krajenta v. Division of Workers' Compensation, 376 So.2d 1200 (Fla. 1st DCA 1979), where the court overturned an agency's finding of public danger which had been predicated on the assumption that rules promulgated by the former Division of Labor of the Department of Commerce for administration of the workers' compensation program had become ineffective when that Division was replaced by the Division of Workers' Compensation of the Department of Labor and Employment Security. The absence of rules on the day the new Division was created was not an emergency. The Division could work under the prior rules until new rules were adopted by normal rulemaking. The ability of the School Board to extend the current contract pending the outcome of the bid protest and rule challenge generated by the attempt to take emergency action demonstrates that there is no emergency, and that extension of the existing contract for a sufficient period to permit ordinary rulemaking would have permitted the Board to evaluate the applicants under a regularly adopted rule incorporating appropriate incentives for minority competition.
CONCLUSION
Emergency Rule 6Gx13 ER 85-86 No. 6 is invalid because there was no immediate danger to the public welfare which would support emergency rulemaking.
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 16th day of December 1986.
APPENDIX TO FINAL ORDER CASE NO. 86-3256R
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 on Proposed Findings of Fact submitted by Petitioner (Spillis Candela & Partners, Inc.)
Adopted in the Introduction.
Adopted in the Introduction.
Adopted in the Introduction.
Adopted in the Introduction.
Covered in Finding of Fact 19.
Covered in Finding of Fact 38.
Covered in Procedural Background.
Covered in Procedural Background.
Covered in Statement of the Issues.
Covered in Finding of Fact 4.
Covered in Finding of Fact 5.
Rejected as unnecessary.
Covered in Finding of Fact 6.
Covered in Finding of Fact 7.
Covered in Finding of Fact 8.
Covered in Finding of Fact 9.
Covered in Finding of Fact 10.
Covered in Finding of Fact 11.
Covered in Finding of Fact 12.
Covered in Finding of Fact 13.
Covered in Finding of Fact 14.
Covered in Finding of Fact 15.
Covered in Finding of Fact 17.
Covered in Finding of Fact 18.
Covered in Finding of Fact 19.
Covered in Finding-of Fact 16.
Covered in Finding of Fact 20.
Covered in Finding of Fact 19.
Covered in Finding of Fact 20.
Rejected as unnecessary.
Covered in Finding of Fact 22.
Covered in Finding of Fact 21.
Rejected as unnecessary.
Covered in Finding of Fact 21.
Covered in Finding of Fact 21.
Covered in Finding of Fact 31.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Covered in Finding of Fact 21.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Covered in Finding of Fact 21.
Rejected as unnecessary.
Covered in Finding of Fact 21.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Covered in Finding of Fact 23.
Covered in Finding of Fact 23.
Covered in Finding of Fact 23.
Rejected as unnecessary.
Rejected as unnecessary.
Covered in Finding of Fact 23.
Covered in Finding of Fact 23.
Rejected as unnecessary.
Rejected as unnecessary.
Covered in Finding of Fact 23.
Rejected as unnecessary.
Covered in Finding of Fact 24.
Covered in Finding of Fact 24.
Adopted in Finding of Fact 25.
Adopted in Finding of Fact 26.
Rejected as unnecessary.
Adopted in Finding of Fact 27.
Covered in Finding of Fact 28.
Covered in Finding of Fact 28.
Covered in Finding of Fact 28.
Covered in Finding of Fact 29.
Adopted in Finding of Fact 80.
Rejected as unnecessary.
Adopted in Finding of Fact 31.
Adopted in Finding of Fact 32.
Adopted in Finding of Fact 33.
Adopted in Finding of Fact 33.
Covered in Findings of Fact 23 and 34.
Covered in Finding of Fact 38.
Covered in Finding of Fact 39.
Adopted in Finding of Fact 40.
Adopted in Finding of Fact 41.
Adopted in Finding of Fact 42.
Adopted in Finding of Fact 43.
Rejected as unnecessary.
Rulings on Proposed Findings of Fact Submitted by Respondent (The School Board of Dade County)
Adopted in Finding of Fact 1.
Adopted in Finding of Fact 2.
Adopted in Finding of Fact 2.
Adopted in Finding of Fact 3.
Covered in Findings of Fact 7 and 8.
Covered in Finding of Fact 6.
Covered in Finding of Fact 9.
Covered in Finding of Fact 9.
Covered in Finding of Fact 15.
Covered in Finding of Fact 21.
Covered in Finding of Fact 22.
Covered in Finding of Fact 23.
Rejected as unnecessary.
Covered in Finding of Fact 23.
Rejected as unnecessary.
Rejected as unnecessary.
Covered in Findings of Fact 21 and 26.
Sentence 1 covered in Finding of Fact 44, sentence 2 rejected as unnecessary.
Covered in Finding of Fact 28.
Covered in Finding of Fact 29.
Covered in Findings of Fact 36 and 37.
Rejected as irrelevant.
Rejected as irrelevant.
Covered in Procedural Background.
Covered in Finding of Fact 40.
Rulings on Proposed Findings of Fact Submitted by Intervenor (The Association of School Consultants)
1. Covered in Finding of Fact | 1. |
2. Covered in Finding of Fact | 2. |
3. Covered in Finding of Fact | 2. |
4. Covered in Finding of Fact | 2. |
5. Rejected as unnecessary. | |
6. Covered in Finding of Fact | 10. |
7. Covered in Finding of Fact | 9. |
8. Covered in Finding of Fact | 3. |
9. Rejected as irrelevant. | |
10. Rejected as unnecessary. |
Covered in Finding of Fact 7.
Rejected as unnecessary.
Rejected as unnecessary.
Covered in Finding of Fact 20.
Rejected as unnecessary.
Rejected as unnecessary.
Covered in Finding of Fact 21.
Rejected as unnecessary.
Rejected as unnecessary.
Covered in Finding of Fact 28.
Rejected-as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Covered in Findings of Fact 23 and 25.
Rejected as unnecessary.
Covered in Finding of Fact 29.
Rejected as unnecessary.
Rejected as unnecessary.
Covered in Finding of Fact 40.
Covered in Finding of Fact 29.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Covered by inference in Findings of Fact 36 and 37.
Rejected as unnecessary.
Rejected as unnecessary.
Rulings on Proposed Findings of Fact Submitted by Intervenor (Wolfberg-Alvarez & Associates)
The proposed findings of fact consist of legal argument and are rejected on the basis. See also the Recommended Order entered in Case No. 86-3002BID.
COPIES FURNISHED:
Eugene E. 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
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules Of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk Of The Division Of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court Of Appeal, First District, or with the District Court Of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
| Issue Date | Proceedings |
|---|---|
| Dec. 16, 1986 | Final Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 16, 1986 | DOAH Final Order | Board's failure to include Minority Business Enterprise (MBE) factors for award of contract doesn't support subsequent emerergency rule with MBE factors because no danger to public welfare. |
