STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-6207

) BRIGHT MAINTENANCE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on January 18, 1989, at Fort Lauderdale, Florida before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David J. Busch, Esquire

The Montgomery Building, Suite 131 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657

For Respondent: Joseph Castagna, President

Bright Maintenance Inc.

160 South University Drive, Suite A Plantation, Florida 33324

BACKGROUND

This is a case in which Petitioner is seeking to cancel, pursuant to Florida Administrative Code Rule 13A-1.006(4), a contract with Respondent for janitorial services because of Respondent's alleged failure to perform these services in accordance with the contract. By letter dated October 18, 1988, to Respondent's President, Joseph Castagna, Petitioner formally notified Respondent that it intended to take such action, but that Respondent had the right to a hearing before any final decision was made. Respondent timely requested such a hearing by letter dated October 20, 1988, to Petitioner's Purchasing Director.

On December 13, 1988, the matter was referred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes (1987). At hearing, Petitioner called three witnesses to the stand and offered three exhibits into evidence.

Respondent presented the testimony of two witnesses and also introduced three exhibits into evidence. All six exhibits offered by the parties were received into evidence. At the close of the hearing, both parties presented oral argument summarizing their respective positions.

A court reporter retained by Petitioner recorded the proceedings at hearing; however, no transcript has been filed with the Hearing Officer. On

January 25, 1989, Petitioner timely filed proposed findings of fact and conclusions of law. The proposed findings of fact submitted by Petitioner have been carefully reviewed and are addressed in the Appendix of this Recommended Order.

FINDINGS OF FACT

Based on the evidence received at the January 18, 1989, hearing, I make the following findings of fact:

1. Petitioner occupies 17,500 square feet of office space in two buildings in downtown Fort Lauderdale. One of these buildings is located at 105 East Broward Boulevard. It houses Petitioner's local Job Service of Florida office and the office's approximately 50 employees, including Jo Ann Gibson, who has managed the office since February, 1988, and her assistant, Irving Haber. On an average business day, 200 or so members of the public pass through the building to take advantage of the employment-related services offered by the office.

   
   

2. The other building has a street address of 108 Northeast 1st Avenue. Fourteen employees of the Broward County tax collection field office of Petitioner's Bureau of Unemployment Compensation and their supervisor, Leon Liebman, as well as five other Department employees, work in this building.

   
   

3. The two buildings are a distance of 30 to 35 yards from one another, but they are connected by a covered walkway. Between the two buildings also lies a common parking area for the employees of both buildings. Transients frequently gather in the parking area during non-business hours and often leave behind broken glass and other litter when they depart.

   
   

4. There are four restrooms in each of the buildings: one for female employees; one for male employees; one for female members of the public; and one for male members of the public.

   
   

5. A part-time, OPS Department employee used to work four hours each business day performing janitorial services in and around the buildings. In 1987, Petitioner contracted with Respondent to perform these services. There was dissatisfaction with Respondent's performance; however, no formal complaint was lodged against Respondent during the term of the contract. Therefore, despite its less than satisfactory performance, Respondent was awarded a second one-year contract to perform these services because it was again the low bidder.

   
   

6. This second contract, which Petitioner is now seeking to cancel, expires June 30, 1989. It provides, however, that it "may be cancelled by either party by giving prior written notice of thirty (30) days to the other party." The contract further provides:

   
   

   In the event of violation or breach of terms of this contract or default by the contractor, and in addition to any other remedies provided by terms of this-contract or federal, state or local laws, the Florida Department of Labor and Employment Security reserves the right to recourse to the default procedures and remedies set forth in Rule 13A-1.06(4), Florida Administrative Code.

   
   

   Petitioner is attempting to invoke this latter provision in the instant case.

7. The scope of the services Respondent is required to perform is described in paragraph VI of the contract as follows:

   
   

   Scope: The following tasks are routine janitorial duties to be performed as necessary or as directed by Jo Ann Gibson, Office Manager.

   
   

   DAILY (Monday - Friday)

   
   

   1. OFFICE AREAS

      1. Empty all waste paper containers.

      2. Empty and clean all ash trays.

      3. Dust all tables, desks, filing cabinets and work surfaces.

      4. Dust and remove all finder [sic] prints and marks from ledges, door casings, doors, window sills, walls, ceilings, and glass partitions.

      5. Remove floor and carpet stains (coffee, gum, scuff marks, etc.) and vacuum all carpet.

      6. Sweep and damp mop all non-carpeted areas.

      7. Replace burned out light bulbs (furnished by owner)

      8. Clean heat and air conditioning vents.

      9. Properly arrange office area and turn off lights upon completion of work.

      
      

   2. REST ROOMS AND LOUNGES:

      1. Wipe down urinals, toilets, and plumbing fixtures and cleaner/disinfectant.

      2. Remove dust, fingerprints, and marks from walls, doors, ceilings, mirrors, and stall partitions.

      3. Mop floors with cleaner/disinfectant.

      4. Restock with soap, towels, and tissue paper (furnished by owner).

      
      

   3. STAIRWAYS, HALLWAYS, CORRIDORS, ELEVATORS:

      1. Sweep and mop stairs and landings daily.

      2. Clean and polish all composition flooring.

      3. Remove dust, hand prints, and marks from walls, doors, ceilings, handrails, vents, grills, and bannisters.

      4. Replace burned out light bulbs (furnished by owner)

      
      

   4. OUTSIDE AREAS:

1. Police lawn, flower beds, and parking lot.

2. Remove weeks [sic] as necessary.

3. Sweep sidewalks.

PERIODIC REQUIREMENTS AND SERVICES (Beginning

with contract period)

1. AS NEEDED: (or as directed by Office Manager)

   1. Spot clean carpet.

   2. Replace waste paper container liners.

   3. Spray buff heavy traffic areas.

   4. Strip, seal, and wax all non-carpeted floors and landings.

   
   

2. WEEKLY:

   Company representative to have personal contact with Office Manager.

   
   

3. MONTHLY:

   1. Vacuum all upholstered furniture.

   2. Dust light fixtures and window blinds.

   3. Clean all interior and exterior glass.

   4. Remove all debris from roof.

   
   

4. QUARTERLY:

1. Strip and wax all non-carpeted floors.

2. Shampoo or steam clean, as appropriate, all carpet.

3. Clean and sweep parking lot.

MISCELLANEOUS REQUIREMENTS AND SERVICES

1. Complete supervision of the work

   force by a qualified supervisor furnished by the contractor.

2. Public liability and workers' compensation insurance as required.

3. All cleaning supplies and equipment shall be furnished by the contractor.

4. All rest room supplies (i.e., soap, tissue paper, towels, etc.) shall be furnished by owner.

5. All janitorial storage areas are to be kept clean and neat.

6. Outside doors are to be kept locked while work is in progress, during other than normal business hours.

7. Personnel will not be allowed to bring any items (other than job-related items) into the building.

8. Personnel will not be allowed visitors, children, etc., in the building during the work period.

9. All work shall be completed between tee hours of 5 p.m. and 8 a.m. and weekends.

10. Vendor is liable for security of all building contents during work hours which are defined in item 9. above.

1. During the term of this second contract, except for emptying wastebaskets and ashtrays, and arranging the office and turning off the lights upon leaving, Respondent has failed to perform on a daily basis as required the duties described in paragraph VI A-D of contract. Some of these tasks have been completed only occasionally, oftentimes after a complaint has been made by Gibson, Haber, or some other Department employee. Other tasks have not been done at any time during the contract period. Of particular concern has been the condition of the restrooms. They have been disinfected and cleaned on only an irregular basis.

   
   

2. With respect to the "periodic requirements and services" referenced in paragraph VI the second contract, Respondent has not always, when needed during the term of the contract, spot cleaned carpeted areas, spray buffed heavy traffic areas to remove scuff marks, and stripped, sealed, and waxed non- carpeted areas. During this time frame, Respondent has also failed to dust the light fixtures and clean all interior and exterior glass every month, and to strip all non-carpeted areas and shampoo or steam clean all carpeted areas every three months. Furthermore, neither Castagna, nor any other representative of Respondent has had weekly contact with Gibson as contemplated by the contract.

   
   

3. Regarding the "miscellaneous requirements" set forth in paragraph VI of the contract, specifically those prescribed in subsections 1 and 9 thereof, contract work has frequently been performed in the morning after 8:00 a.m. on business days by an unsupervised employee of Respondent's. In addition, except for disinfectant, Respondent uses Petitioner's, not its own, cleaning supplies. This is done, however, with Gibson's knowledge and consent.

   
   

4. On or about September 26, 1988, Petitioner served on Respondent a written Complaint to Vendor in which it complained about Respondent's "[u]nsatisfactory performance" of its contractual obligations. The complaint contained the following statement:

   
   

   The offices are in deplorable condition. The infrequent and haphazard cleaning of the restrooms could be considered a health hazard. All that is being routinely done is the emptying of waste baskets. Under the daily requirement of the contract, numbers 3, 4, 5, 6 and 8 are completely ignored and none of the Periodic and Miscellaneous requirements are being met.

   
   

   Joe Castagna has been called twice and no one has shown up. A janitor showed about 9:00

   a.m. and emptied waste basket[s], nothing more. The contract states "all work shall be performed between the hours of 5 PM and 8 AM and weekends."

   
   

   Services must be brought into compliance with contractual requirements within ten (10) calendar days of receipt of this complaint, and maintained satisfactorily for the duration of the contract. Failure to do so may result in a declaration of default in accordance with Rule 13A-1.006(4), Florida Administrative Code, cancellation of the contract, reprocurement of these services,

   charging all reprocurement costs and costs of cover to Bright Maintenance Inc. and removing Bright Maintenance Inc. from the bid list of the Department of Labor and Employment Security until such charges are paid.

   
   

5. Following the issuance of this written complaint, there was some improvement in the contractual services provided by Respondent. They did not improve, however, to such an extent that Respondent was in substantial compliance with all of the requirements of the contract. In any event, Respondent's performance soon reverted to its abysmal pre-written complaint level.

   
   

6. Accordingly, in response to Respondent's continuing failure to substantially comply with the terms of its contract, Petitioner, by letter dated October 18, 1988, provided Respondent with written notice of Petitioner's intention to find Respondent in default, cancel the contract, and obtain janitorial services from another source. The services rendered by Respondent subsequent to the issuance of this notice have remained deficient.

   
   

   CONCLUSIONS OF LAW

   
   

7. Florida Administrative Code Rule 13A-1.006(4), which is incorporated by reference in the contract between Petitioner and Respondent, authorizes a state agency, such as Petitioner, which has entered into a contract for commodities or services to find the supplier in default if the supplier fails to meet its contractual obligations, provided the supplier is first given written notice of its deficiencies and at least 10 days after receipt of the notice to correct the deficiencies.

   
   

8. Petitioner provided Respondent with such notice by written complaint dated September 26, 1988, in which it gave Respondent 10 days within which to comply with the requirements of the contract. Inasmuch as Respondent has not remedied the noted deficiencies in its performance under the contract and there is no indication that its deficient performance is legally excusable, a finding of default against it is warranted.

   
   

9. A contracting agency may, pursuant to Florida Administrative Code Rule 13A-1.006(4), cancel its contract with the defaulting supplier, reprocure the commodities or services from another supplier, require that the defaulting supplier reimburse it for any reprocurement costs and costs of cover, and remove the defaulting supplier from the agency's approved vendor list until such time as these costs are paid to the agency. Because Respondent has defaulted, Petitioner is free to take such action in the instant case.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order finding Respondent in

default for failure to meets its obligations under its contract with Petitioner; cancelling the contact; requiring Respondent to pay any reprocurement costs and costs of cover; and removing Respondent from its vendor list until such costs are paid by Respondent.

DONE AND ENTERED in Tallahassee, Leon County, Florida this 10th day of February, 1989.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-6207

The following are my specific rulings on the findings of fact proposed by Petitioner:

1. Accepted and incorporated in this recommended order.

2. Accepted and incorporated.

3. Accepted, but unnecessary, and therefore not incorporated.

4. Accepted and incorporated.

5. First sentence: Accepted and incorporated, except to the extent that it suggests that Respondent has not on a daily basis arranged the furniture and turned off the lights upon leaving the buildings. To the extent that this proposed finding so suggests, it is unsupported by the evidence.

   Second sentence: Accepted and incorporated.

   Third sentence: Accepted and incorporated, except insofar as it reflects that spray buffing has always been done by Respondent when needed; that Respondent has not vacuumed the upholstered furniture each month; and that Respondent has not cleaned and swept the parking lot every three months.

   Insofar as this proposed finding so reflects, it is unsupported by the evidence.

6. Accepted and incorporated, except to the extent that it indicates that Respondent has not kept clean and neat the janitorial storage area. To the extent that this proposed finding so indicates, it is unsupported by the evidence.

COPIES FURNISHED:

David J. Busch, Esquire The Montgomery Building

2562 Executive Center Circle, East Tallahassee, Florida 32399-0657

Joseph Castagna, President Bright Maintenance Inc.

160 South University Avenue, Suite A Plantation, Florida 33324

Hugo Menendez, Secretary Department of Labor and Employment Security

206 Berkeley Building 2590 Executive Center Circle, East

Tallahassee, Florida 32399-2152

Docket for Case No: 88-006207

Orders for Case No: 88-006207