STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VECTOR INTRA NATIONAL, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 93-4001

) STATE OF FLORIDA, DEPARTMENT ) OF MANAGEMENT SERVICES, )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this proceeding before Daniel Manry, a duly designated Hearing Officer, of the Division of Administrative Hearings, on October 12, 1993, in Orlando, Florida.

APPEARANCES

For Petitioner: Linda Nunez

President of Vector Intra National, Inc. 2716 Forsyth Road, Suite 116

Orlando, Florida 32792-8845

For Respondent: Cindy Horne

Office of General Counsel Department of Management Services Knight Building, Suite 309

2737 Centerview Drive

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUES

The issue for determination in this proceeding is whether Petitioner should be certified as a minority business enterprise.

PRELIMINARY STATEMENT

By letter dated June 30, 1993, Respondent denied Petitioner's application for certification as a minority business enterprise (an "MBE"). Petitioner timely requested a formal hearing. The matter was transferred to the Division of Administrative Hearings for assignment of a Hearing Officer and assigned to the undersigned on July 28, 1993. A formal hearing was scheduled for October 12, 1993, pursuant to a Notice of Hearing issued on August 6, 1993.

At the formal hearing, Petitioner presented the testimony of one witness. Respondent presented the testimony of two witnesses. Respondent submitted two exhibits and requested official recognition of Florida Administrative Code Rule

60A-2 and two administrative orders. The identity of the witnesses and exhibits and rulings made on the record are described in the transcript of the formal hearing filed with the undersigned on October 29, 1993.

Petitioner did not file proposed findings of fact and conclusions of law.

Respondent timely filed proposed findings of fact and conclusions of law on November 4, 1993. Respondent's proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a Florida corporation, for which all of the outstanding stock is owned by Ms. Linda Nunez. Petitioner is operated as an electrical supply business.

   
   

2. Ms. Nunez operated Petitioner with the assistance of Mr. James Ellis. Mr. Ellis has extensive experience in the electrical supply business. Petitioner sells exclusively to the U.S. Department of Defense.

   
   

3. Petitioner's owner failed to establish any experience beyond sales to the U.S. Department of Defense. Ms. Nunez has no experience or training in the electrical supply business except that which she has gained from the formation and operation of Petitioner. Ms. Nunez has experience in her father's construction business as a tractor operator. Her father subcontracted his electrical work.

   
   

4. Ms. Nunez has experience as a home renovator. Ms. Nunez presented no evidence of any electrical work in this capacity other than basic home repairs.

   
   

5. The only relevant experience Petitioner's owner has in the electrical supply business is that of its president, Ms. Nunez. Ms. Nunez established the business in July, 1992. She has had one year of experience working in the business.

   
   

6. Ms. Nunez has not gained sufficient experience since July, 1992, to warrant certification as an MBE. Ms. Nunez' primary duties include "outside sales," deliveries, and bookkeeping. Mr. Ellis has the primary responsibility for "inside sales." Ninety percent of Petitioner's sales are through inside sales. Mr. Ellis has no ownership interest in or control of Petitioner.

   
   

7. The inside sales person takes product orders from customers and contacts suppliers regarding customer orders. This is the position in which product knowledge is crucial. Ms. Nunez delegates this function to Mr. Ellis.

   
   

8. The outside salesperson makes customer contacts, informs them of the company's existence, and reminds customers of Petitioner's continuing presence as a resource. Extensive product knowledge is not required for the function performed by Ms. Nunez.

   
   

9. Ms. Nunez failed to establish the product knowledge necessary for MBE certification. She could not answer standard technical questions typically asked of other electrical supply firms. During her deposition and testimony, she failed to answer questions regarding items in her own inventory. When asked what she would do when confronted with an order for which she had no product knowledge, she testified that she would research the product by reference to its manufacturer's part number.

10. The State of Florida purchases goods by invitations to bid and purchase orders. For both methods of purchases, a standardized commodities description is used. The commodities description does not contain any reference to a manufacturer's part number. Vendors must have sufficient knowledge to discern what products the bid calls for solely by reference to standardized commodity descriptions.

    
    

11. Petitioner does business only with the U.S. Department of Defense. The U.S. Department of Defense orders by reference to manufacturer's part numbers. Ms. Nunez can look up the number used by the U. S. Department of Defense in a catalog in order to fill the order. She does not use state standardized descriptions to complete her orders for the federal government. Her inability to identify her own inventory by reference to state standard descriptions evidenced the lack of suppliers knowledge for State certification as an MBE.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

13. The burden of proof in this proceeding is on the Petitioner. Florida Administrative Code Rule 28-6.008; Florida Department of Transportation v.

J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

13. Florida Administrative Code Rule 60A-2.005(3)(d)4, states;

. . . The minority owners shall have managerial and technical capability, knowledge, training, education and experience required to make decisions regarding the particular type of work. In determining the applicant' business' eligibility, the Department will review prior employment and educational backgrounds of the minority owners, the professional skills, training and/or licenses required for the given industry, the previous and existing managerial relationship between and among all owners, especially those who are family related, and the time and purpose of management changes. If the minority owners have delegated management and technical responsibilities to others, the minority owners must substantiate that they have caused the direction of the management of the business and each phase of the technical operations of the business through their demonstrable knowledge of and capability in the delegated areas. (Emphasis supplied)

15. Rule 60A-2.005(3)(d)5, Florida Administrative Code, states:

The minority owners shall display independence and initiative in seeking and negotiating contracts, accepting and rejecting bids and in conducting all major aspects of the business in regard to any and all bidding and contracting. In any instance where the minority owners do not directly seek or negotiate contracts, prepare estimates, or coordinate with contracting officials, but claim to approve or reject bids and contractual agreements, the minority owners shall demonstrate that they have the knowledge and expertise to independently make contractual decisions. (emphasis supplied)

As the sole owner of Petitioner, Ms. Nunez failed to show sufficient knowledge under applicable rules.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's request for

certification as a minority business enterprise.

DONE AND ENTERED this 10th day of December, 1993, at Tallahassee, Florida.

DANIEL MANRY

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 December, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4001

Petitioner did not submit proposed findings of fact.

Respondent's paragraphs 1, 9, 10 and 12-15 were rejected as irrelevant, immaterial, or cumulative. The remainder of Respondent's proposed findings of fact were accepted in substance.

COPIES FURNISHED:

William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307

2737 Centerview Drive

Tallahassee, Florida 32399-0950

Sylvan Strickland, General Counsel Department of Management Services Knight Building, Suite 309

2737 Centerview Drive

Tallahassee, Florida 32399-0950

Linda Nunez

President of Vector Intra National, Inc.

2716 Forsyth Road, Suite 116

Orlando, Florida 32792-8845

Cindy Horne

Office of the General Counsel Department of Management Services Knight Building, Suite 309

2737 Centerview Drive

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-004001

Orders for Case No: 93-004001