STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANVILLE-FINDORFF, INC., )

)

Petitioner, )

)

vs. ) Case No. 98-5111BID

) MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Respondent, )

)

and )

)

PASS INTERNATIONAL, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 19 through 21, 1999, in Miami, Florida, before Patricia Hart Malono, the duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Neil Flaxman, Esquire

Neil Flaxman, P.A.

550 Biltmore Way, Suite 780 Coral Gables, Florida 33134

For Respondent: Twila Hargrove Payne, Esquire

Johnny Brown, Esquire

School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400

Miami, Florida 33132

For Intervenor: David L. Swimmer, Esquire

Michael C. Spring, Esquire David L. Swimmer, P.A.

8525 Southwest 92nd Street, Suite B-4 Miami, Florida 33156

STATEMENT OF THE ISSUE

As set forth by the parties in the Prehearing Stipulation and in their proposed recommended orders, the issue in this case is whether the bid submitted by Pass International, Inc., on the Booker T. Washington Middle School Project No. A-0557 is responsive with respect to compliance with the Minority/Women Business Enterprise Assistance Levels subcontracting requirement contained in the Invitation to Bid.

PRELIMINARY STATEMENT

Danville-Findorff, Inc. ("Danville-Findorff"), submitted to the Miami-Dade County School Board ("School Board") a Petition in Accordance with School Board Rule 6Gx13-8C-1.064, which was dated October 9, 1998. In the Petition, Danville-Findorff protests the School Board's intention to award the contract for the Booker T. Washington Middle School Project No. A-0557 ("BTW project") to Pass International, Inc. ("Pass"), as the lowest responsive bidder. Danville-Findorff takes the position that Pass's bid was non-responsive because it was not in compliance with the Special Provision for Compliance with M/WBE (Minority/Women Business Enterprise) Assistance Levels Participation ("Special Provision") included in the Invitation to Bid on the BTW project.

Specifically, Danville-Findorff states the following as the factual basis for its protest:

1. Pass International submitted an unlicensed subcontractor at the time of bid.

   
   

2. Acestarz Corp., Inc., was not certified at the time of bid.

   
   

3. Although Acestarz Corp., Inc., did have a letter from MDCPS [Miami-Dade County Public Schools] authorizing [it] to bid projects, however, this option is not outlined in the specifications and further not intended to authorize unlicensed persons to perform work prior to certification outside the restrictions of the Florida statutes [sic].

   
   

4. It is in our opinion and belief that Pass International personnel qualified Acestarz Corp., Inc. as a general contractor. The fact that Pass International employee Joseph Mijares, (footnote omitted), whose resume and contractor's license was part of Pass Inter- national's submittal . . . and also acted as qualifier for Acestarz Corp., Inc. created a control over Acestarz Corp., Inc. by Pass International at the time of the bid.

   Section 489.105(4), Fla. Stat. 1998 provides:

   
   

   "Primary qualifying agent" means a person who possesses the requisite skill, knowledge, and experience, and has the responsibility, to supervise, direct, manage and control the contracting activities of the business organization with which he or she is connected; who has the responsibility to supervise, direct, manage, and control construction activities on a job for which he or she has obtained the building permit; and whose technical and personal qualifications have been determined by investigation and examination as provided in this part, as attested by the department.

   Since the qualifying agent of Acestarz Corp., Inc. (Mijares) has control over both contracting and construction of the minority sub-contractor (Acestarz Corp. Inc.) and Pass International, Inc. had control over Mijares as a result of the employee/employer relationship, in reality Pass International, Inc. had complete control over Acestarz Corp. Inc. This arrangement totally violates [the] School Board's long established rules that the minority (in this case a black enterprise) be at least 51% owned and controlled by the minority persons (black enterprise) as well as basic conflict of interest principles.

   
   

5. That Acestarz Corp., Inc. was not able and qualified at the time of bid nor have they ever performed work of this nature as a licensed contractor in this state or county.

   
   

6. That due to the fact that Acestarz Corp., Inc. was not a bonafide contractor that Pass International, Inc. had a clear monetary advantage over Danville-Findorff, Inc. in that they are directly controlling a subcontractor price substantially under actual prices intentionally just to meet the goals wherein they did not have to commit to minority subcontractors as outlined in the bidding documents.

   
   

7. That Pass International did not submit a M/BWE [sic] application (Form 3920) with the letter of intent for Acestarz corp., inc. [sic] as outlined in the specification, as Acestarz Corp., Inc. was not previously certified.

   
   

8. That Pass International represented that Acestarz Corp., Inc. was available and qualified when submitting their letter of intent, when in fact they were not.

[Emphasis in original]

By letter dated November 12, 1998, the School Board transmitted the matter to the Division of Administrative Hearings

for assignment of an administrative law judge pursuant to Section 120.57(3), Florida Statutes (1997). The Petition in Intervention of Pass International, Inc., was filed with the Division of Administrative Hearings on November 16, 1998, and intervention was granted by order entered December 2, 1998. The

formal hearing on this bid protest was held on January 19 through 21, 1999, pursuant to the parties' waiver of the time periods included in Section 120.57(3)(e), Florida Statutes (1997), during a telephone conference held on November 24, 1998.

During the hearing, Danville-Findorff presented the testimony of Henry Louden, a former vice-president of Pass; Joseph Akoni, president of Acestarz, Inc.; Joseph Robert Mijares, former employee of Pass and qualifier for Acestarz; Patricia Freeman, director of the School Board's Division of Business Development and Assistance; and Dana Sheldon, president of Danville-Findorff. Petitioner's Exhibits 1 through 16 were offered and received into evidence. The School Board presented the testimony of Patricia Freeman, and Respondent's Exhibits 1 and 3 through 14 were offered and received into evidence. Pass presented the testimony of Joseph Akoni and Patricia Freeman, and Intervenor's Exhibits 1 through 21 were offered and received into evidence. Official recognition was taken of the Special Provision for Compliance with M/WBE Contracting Assistance Levels; School Board Rules 6Gx13-3G-1.01, 1.02, 1.03, 1.04, and

1.05; and Chapter 10 of the Code of Metropolitan Dade County, Florida.

During the hearing, Pass contested Danville-Findorff's standing as follows:

I don't believe, and I'm submitting that Danville-Findorff does not have standing to contest that information, does not have standing to contest whether or not the School Board through its MBE program did a proper or improper job of examining items 21A through F [criteria used to determine if an M/WBE is qualified to do the work proposed in the bid]. That's our position with regard to standing.

(Transcript, vol. III at 45.) Ruling on the standing issue was deferred, pending receipt of legal memoranda setting forth the precise issue raised by Pass and presenting argument relating to the propriety of Pass's raising the standing issue at hearing and to the substance of Pass's argument that Danville-Findorff does not have standing to raise the issue identified by Pass. Pass filed a Memorandum of Law Regarding Danville's Standing to Challenge the School Board of Miami-Dade County's Decision to Grant Acestarz, Inc. Temporary M/WBE Status; Danville-Findorff filed Petitioner's Reply Memorandum of Law on the Standing Issue; and Pass filed a reply in support of its position that Danville- Findorff lacks standing to raise the issue stated above.

In its memorandum, Pass identifies the issues raised by its challenge to Danville-Findorff's standing as follows:

1. Whether Petitioner raised the issue of the School Board's review of Acestarz' qualifications in the Pre-Trial Stipulation.

2. Whether Petitioner has standing to challenge the School Board's review of Acestarz' qualifications in deciding to grant it temporary M/WBE status.

3. Whether Pass International, Inc. can raise the issue of standing at the protest hearing, where Pass failed to include the issue of standing in the Pre-Hearing Stipulation. Stated another way, whether Pass waived the issue of standing.

4. If Pass did not waive the issue of standing, whether Petitioner has standing to challenge Pass's review of Acestarz' qualifications as a subcontractor.

The first and second issues apparently concern the letter Ms. Freeman sent to Acestarz dated June 1, 1998, in which she granted Acestarz permission to submit proposals on School Board projects while its application for certification as an M/WBE was pending. Regardless of whether it previously raised the issue of the School Board's review of Acestarz' qualifications, Danville- Findorff does not have standing to challenge the propriety of the School Board’s allowing uncertified and, in Acestarz’ case, unlicensed M/WBE subcontractors to submit proposals and bid on School Board projects.1 With respect to the third and fourth issues, it is unnecessary to decide whether Pass waived its right to challenge standing by not raising it until well into the final hearing because Pass has failed to provide any credible basis to support a conclusion that Danville-Findorff has no standing to challenge Pass's review of Acestarz' qualifications as a subcontractor.

A transcript was filed with the Division of Administrative Hearings on February 18, 1999. The parties submitted proposed

findings of fact and conclusions of law on March 12, 1999, which have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing, on the contents of the Pre-Hearing Stipulation, and on the entire record of this proceeding, the following findings of fact are made:

1. At all times material to this proceeding, the School Board was a duly-constituted School Board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida, pursuant to Article IX of the Florida Constitution and to Section 230.03, Florida Statutes.

2. Acestarz, Inc., was organized as a Florida for-profit corporation on September 2, 1997. Joseph Akoni, an African American male, owns 100 percent of the stock of Acestarz and acts as its president.

3. In an agreement executed April 19, 1998, Joseph Robert Mijares, a Hispanic, agreed to act as Acestarz' qualifying agent and to apply for Acestarz's certification of authority as a general contractor. At the time, Mr. Mijares was an employee of Pass, and he acted as project manager on a number of Pass construction projects, both large and small. Mr. Mijares notified Pass of his agreement with Acestarz a few days after it was executed.

4. Mr. Mijares held a state general contractor's certification. As qualifying agent, Mr. Mijares submitted the application for certification for Acestarz to the Florida Department of Business and Professional Regulation, Construction Industry Licensing Board, on April 23, 1998. A Temporary Authorization License was issued to Mr. Mijares on August 5, 1998, which authorized Acestarz to practice contracting through Mr. Mijares as its qualifying agent pending the processing and receipt of the permanent certification. By its terms, the temporary license was to expire on October 5, 1998.

5. On or about June 1, 1998, Acestarz submitted a Certification Application to the School Board requesting certification as an African American M/WBE. In a letter dated June 1, 1998, Patricia Freeman, Director of the Division of Business Development and Assistance, notified Mr. Akoni that the application had been received. In the letter, Ms. Freeman stated:

   In the interim [while the application is pending], you may bid as a prime, or subcontractor, on future Dade County Public Schools contracting opportunities, set aside for, or requiring M/WBE participation.

   Should you be deemed the apparent low bidder or a subcontractor thereto, your application will be processed before contract award.

   Prime contractors who utilize subcontractors that are pending, but subsequently are deemed ineligible for certification, will be allowed to make a substitution, within the same racial or gender category as the firm being substituted.

6. The School Board's BTW project is a competitive design- build project involving the conversion of Booker T. Washington Middle School into a high school. In order to submit a bid on the BTW project, prospective bidders were required to submit

   pre-qualification proposals for evaluation in August 1997. Pass and Danville-Findorff, among others, submitted pre-qualification proposals. After the School Board administrative staff evaluated the proposals, three firms, including Pass and Danville-Findorff, were pre-qualified to bid on the BTW project.

7. On or about June 9, 1998, the School Board issued an Invitation to Bid on the BTW project. The bid specifications instructed the bidders to submit a lump-sum bid for all design and construction services required to complete the BTW project. The bid specifications further provided that the bids were to be submitted on or before July 28, 1998, and that, thereafter, the bids would be opened, read, and tabulated. According to the bid specifications, the "[a]ward of the contract will be made to the lowest responsible bidder for the actual amount bid." The time for submitting bids was extended to August 4, 1998.

8. Included as part of the Invitation to Bid on the BTW project is a Special Provision for Compliance with M/WBE Subcontracting Assistance Levels Participation ("Special Provision"). The purpose of the Special Provision is to "ensure that Minority/Women Business Enterprises are afforded maximum

   opportunity to participate in School Board work." Section II.A., Special Provision.

9. An M/WBE is defined in Section I.A.12. of the Special Provision as follows:

   Any legal entity which is organized to engage in commercial transactions and which is at least fifty-one (51) percent owned and controlled by minority persons. Minority person means a person who is a citizen or lawful permanent resident of the United States and who is:

   
   

   1. An African American, a person having origins in any of the Black racial groups of Africa;

      
      

   2. An Hispanic, a person of Spanish or Portuguese culture, including, but not limited to persons with origins in Mexico, South America [sic] Central America, or the Caribbean Islands, regardless of race;

      
      

   3. A Woman.

      
      

10. Pursuant to the Special Provision, M/WBE assistance levels for one or more minorities are to be specified for all School Board projects. The assistance level for African American M/WBEs was established at eight percent of the total price bid on the BTW project.

11. Section III.A. of the Special Provision provides in pertinent part:

    SUBMITTALS

    
    

    
    

    As a condition of responsiveness, all bid submittals shall contain the documents and information required below. . . .

    1. Sealed bids must contain a completed FORM FM 4828, BREAKDOWN OF PROJECT COST AND SUBCONTRACTORS/ CONSULTANT LIST, stipulating the name, and price for each Subcontractor, including the M/WBE category for those listed to meet the M/WBE subcontracting Assistance Level requirements.

       
       

    2. Letters of Intent (Attachment C-FM 4829) for listed M/WBEs used to meet the M/WBE subcontracting Assistance Levels must be presented by the apparent low bidder, to the Department of Contract Management, . . . within two (2) days (by no later than 2:00 p.m.) after the date, and time and location specified in the LEGAL ADVERTISEMENT AND THE INSTRUCTIONS COVERING OPENING OF BIDS. Letters of Intent prices must not be less than the amount listed on Form FM 4828, Breakdown of Project Cost and M/WBE Subcontractor/Consultant List. Letters of Intent for M/WBEs not listed on FM-4828, will not be considered in determining Compliance, unless the listed M/WBE becomes Unavailable.

       
       

    3. M/WBE Certification Applications (FM-3920) must accompany the Letters of

       Intent for all M/WBEs utilized to meet the Assistance Levels who are not certified nor pending certification as M/WBE's [sic] Dade County Public Schools at the time of bid submission.

       
       

    4. All bids, will be publicly opened, read, and tabulated in the School Board Auditorium, or other designated area, Dade County School Board Administration Building, by an authorized representative of the School Board.

       
       

    5. The submittal of the apparent low bidder being considered for award will be presented to the Division of Business Development and Assistance for an M/WBE subcontracting Compliance Review, in accordance with Section IV. of the SPECIAL PROVISION FOR COMPLIANCE WITH M/WBE SUBCONTRACTING ASSISTANCE LEVELS PARTICIPATION. If the apparent low Bidder is found to be nonresponsive or in Noncompliance, the

    Department of Contract Management shall notify the second low bidder . . . .

    Failure to submit the completed Form FM 4828 submittals at the bid opening may result in the bid being found nonresponsive.

    
    

12. Both Pass and Danville-Findorff submitted sealed bids for the BTW project on August 4, 1998. The bid packages were opened on August 5, 1998. Pass had submitted the lowest lump-sum bid at $13,900,000, and Danville-Findorff had submitted the second lowest bid at $13,979,000.

13. Pass submitted a Form FM 4828 with its bid in which it identified Acestarz and Manny & Lou as the M/WBEs that Pass intended to use to meet the eight-percent African American subcontracting assistance level. The listings on the Form

    FM 4828 submitted by Pass indicated that Acestarz would perform work in categories 9.01 through 9.06 for a price of $500,000 and that Manny & Lou would perform work in category 15.04 for a price of $700,000. Without Acestarz' $500,000 proposal, Pass's bid would not meet the eight-percent African American M/WBE assistance level.

14. Section III.B.4. of the Special Provision provides as follows:

    The listing of a M/WBE Subcontractor [on Form FM 4828] by the Bidder shall constitute a representation by the Bidder that the listed Subcontractor is available and qualified, and a commitment by the Bidder that if it is awarded the contract, it will enter into a subcontract with the Subcontractor for the type of work, at a minimum of the price set forth in its submission.

15. "Qualified" is defined in Section I.A.21. of the Special Provision as follows:

    A subcontractor is potentially Qualified to do specific work if at a minimum it meets all of the following criteria:

    
    

    1. It has or is able to obtain any and all bonds, insurance and licenses required to do such work and was duly informed by the Bidder that a bond, insurance or license was required and said Subcontractor included the cost associated with same in the bid quotation;

       
       

    2. It has the necessary experience, financial ability, organization, technical qualifications, skill and facilities to do such work;

       
       

    3. It is able to reasonably comply with the performance schedule needed for such work;

       
       

    4. It does not have an unsatisfactory record of integrity, judgment or performance;

       
       

    5. It is able to meet the applicable equal employment opportunity requirement if stipulated, and

       
       

    6. It is not otherwise ineligible to perform such work under applicable law and regulations.

    
    

    It is the general contractor's responsibility to determine whether a subcontractor is qualified to do the work or portion thereof. Nothing delineated herein shall be interpreted to waive the requirement that the subcontractor be legally licensed and certified at the time it is scheduled to perform such work.

16. Prior to listing Acestarz on Form FM 4828, Henry Louden, who prepared Pass's bid package on the BTW project, did

    not ask Mr. Akoni about Acestarz' licensure status, the number of employees on its payroll, its financial capacity, or the type of equipment it had. Prior to submitting Pass's bid package,

    Mr. Louden mentioned to Mr. Akoni that he needed to look at bonding requirements because, when doing public work, subcontractors sometimes were required to provide bonds.

    Mr. Louden did not, however, inform Mr. Akoni of any licenses Acestarz might need to do the work proposed or of the insurance that Pass required its subcontractors to carry.

17. The extent of Mr. Louden's knowledge about Acestarz prior to submitting Pass's bid package was described in the following two exchanges:

    Q. [By Mr. Flaxman] What did you know as it related to his [Joseph Akoni's] construction, his portion of construction, things of that nature prior to your [sic] submitting his name to the School Board?

    
    

    A. [By Mr. Louden] His experience?

    
    

    Q. Everything. Whatever you knew about him.

    
    

    A. About his whole firm, then?

    
    

    Q. Yes.

    
    

    A. Joe Akoni came to our office, inquired about bidding work with us, identified areas that he was familiar with, in construction areas that he is familiar with, and subsequent to that, I guess, he got together with Mr. Mijares in my office, and after that discussion, Mr. Mijares --

    
    

    * * *

    
    

    THE WITNESS: Okay. Mr. Mijares got involved with Ace Starz [sic]. Ace Starz

    looked at a couple jobs in our office. Ace Starz submitted some bids to us on other jobs. Ace Starz was interested in submitting prices for the Booker T. Washington job. We provided plans to him. We reviewed the plans together, identifying the scope that we needed them to furnish to us, . . . .

    
    

    Q. . . . . Is there anything else you knew about Ace Starz, Inc. as it related to the construction of the project [prior to submitting Pass's bid package]?

    
    

    A. No.2 And, again,

    Q. (By Mr. Swimmer) Did you meet or did someone else on behalf of Pass meet with Mr. Akoni prior to Mr. Akoni giving a price on behalf of Ace Starz [sic] to go over the scope of work?

    
    

    A. [By Mr. Louden] Yes.

    
    

    Q. And did you discuss with him scope of work at that time?

    
    

    A. Yes.

    
    

    Q. And did you come away from that meeting with a sense of qualifications and ability of Ace Starz and Mr. Akoni

    
    

    [Objection by Mr. Flaxman.]

    
    

    MR. SWIMMER: Then, let me ask you -- I'll rephrase the question.

    
    

    BY MR. SWIMMER:

    
    

    Q. Did you reach a belief as a result of your interaction with Mr. Akoni regarding his capacity, his ability with regard to construction of the items for which he was pricing?

    
    

    A. Yes.

    
    

    Q. And what was that conclusion?

    A. His pricing and understanding of what we were requesting, from what I felt was necessary, in order to achieve -- to submit a price to me when we went through the plans, after he submitted the pricing, we reviewed it and it was consistent with what I was looking for, with other sub prices that we received.

    
    

    Q. Did you go through the plans with him, with Mr. --

    
    

    A. Yes.

    
    

    Q: Did Mr. Akoni mark up the plans to describe the work which would be the scope of his price?

    
    

    A. I'm sure he did. I don't recall what he marked, whether he marked it. I identified specifically which areas he needed to

    price 3

18. On August 4, 1998, the date that bid packages on the BTW project were submitted to the School Board, Acestarz was not licensed by the state Construction Industry Licensing Board pursuant to Chapter 489, Florida Statutes, or by Miami-Dade County pursuant to Chapter 10 of the Code of Metropolitan Dade County, Florida.

19. Once Pass was notified by the School Board that it had submitted the low bid, Pass timely submitted Letters of Intent from each of the three subcontractors it intended to use to meet the M/WBE assistance levels for the BTW project, as required by Section III.A.2. of the Special Provision. An application for certification for Acestarz was not submitted with Pass's bid package because Acestarz's certification application had been

    filed with the Division of Business Development and Assistance on June 1, 1998, and was still pending.

20. Pass was determined to be the lowest responsive bidder and its bid package was forwarded to the Division of Business Development and Assistance for a compliance review to be conducted pursuant to the Special Provision.4 In Section I.A.4. of the Special Provision, "compliance" is defined as "[t]he condition existing when a successful bidder has met and implemented the requirements of this Provision." In

    Section I.A.6. of the Special Provision, "compliance review" is defined as "[a] review to determine whether the successful Bidder is in Compliance with these Provisions." "Successful Bidder" is defined in Section I.A.24. as "[t]he Bidder to which the contract is awarded."

21. Even though the above-quoted sections of the Special Provision specify that a compliance review is done for the "successful" bidder after the contract for the project is awarded, the M/WBE compliance review is actually done before the contract is awarded in accordance with the procedures set out in Section IV. of the Special Provision. Section IV.A. provides in pertinent part:

    DETERMINATION OF COMPLIANCE

    
    

    Subsequent to bid opening and prior to award, the M/WBE Compliance Administrator will conduct a review of the bid submittals in order to determine Compliance with the Provision as follows:

    1. Fulfillment of Established Assistance Levels

    
    

    If the total price for work to be performed by M/WBE Subcontractors as indicated in either the Breakdown of Project Cost and Subcontractors/Consultant List or Letters of Intent is sufficient to fulfill the established Assistance Levels, in each race/ethnic/gender category, the Compliance Administrator will issue a written Notice of Compliance to the Bidder.

22. Pursuant to these provisions, the compliance review involves consideration of the cost breakdown for each M/WBE subcontractor listed by the lowest responsive bidder on the Form FM 4828; whether each subcontractor listed is a certified

    M/WBE, has an application for certification pending, or has filed a certification application with its Letter of Intent; and whether the price of the work to be done by each M/WBE subcontractor meets or exceeds the assistance levels specified in the bid documents. Ms. Freeman, in her capacity as Compliance Administrator, was responsible for conducting the compliance review of Pass's bid package.

23. On August 14, 1998, before the compliance review had been completed but after Pass had been identified as the lowest responsive bidder, Danville-Findorff sent a notice of bid protest to Julio Alvarez in the School Board's contract administration section protesting the award of the contract for the BTW project to Pass. The August 14 notice of protest includes virtually the same factual allegations as those set out in the Petition which initiated these proceedings. Danville-Findorff supplemented the

    allegations contained in its August 14 notice of protest in letters dated August 19, 1998, and September 1, 1998, which included additional information regarding Joseph Mijares, the qualifying agent for Acestarz.

24. On August 18, 1998, Pass sent to the School Board via facsimile an M/WBE Subcontractor/Consultant Letter of Intent executed by G. Family Ent., Inc., a certified M/WBE, in which that company agreed to perform the same scope of work that Acestarz had agreed to perform in its Letter of Intent submitted to the School Board on August 6, 1998.5 G. Family Ent., Inc., agreed to do the work for $500,000, the same price specified by Acestarz.

25. Although the School Board never issued a formal response to Danville-Findorff's August 14 notice of protest, the issues raised were resolved when Ms. Freeman issued a Notice of Noncompliance dated August 26, 1998, in which she stated that, based on her analysis of Acestarz' status, Pass's bid did not meet the eight-percent assistance levels for African American M/WBEs established for the BTW project. Ms. Freeman's conclusion was based on a finding that Acestarz' $500,000 proposal could not be credited toward the African American assistance levels required for the BTW project because "ACESTARZ was neither qualified as a construction company on bid day, nor can it be certified as an M/WBE." Ms. Freeman refused to authorize Pass to substitute another M/WBE subcontractor for Acestarz because "it

    can only be assumed that Pass was fully aware of ACESTARZ' status."

26. When it received the Notice of Noncompliance, Pass timely requested a meeting with Ms. Freeman, as permitted in Section IV.B.2. of the Special Provision. The meeting was held on August 28, and, on September 4, 1998, Ms. Freeman issued a Final Notice of Noncompliance in which she reiterated her conclusion that Pass's bid was not in compliance with the African American M/WBE assistance levels required for the BTW project.

    In the final notice, Ms. Freeman stated:

    
    

    ACESTARZ was not qualified to perform construction services of any nature at the time of bid. Not only did it not hold a State license but it was denied a County license without first obtaining the requisite local or state licenses. Therefore, it was not eligible or qualified to bid as a prime or a subcontractor.

    
    

    * * *

    
    

    In conclusion, Pass not only listed an unqualified firm, but one that was not legally organized to conduct business as a construction company. Therefore, Pass cannot be credited for including ACESTARZ to meet the M/WBE requirements, on this project.

    
    

    * * *

    
    

    To your request for immediate authorization to allow Pass to substitute [another M/WBE subcontractor for] ACESTARZ,"[6] please be advised that Pass . . . made" the same request on August 12, 1998, Please

    be advised that, other than certified M/WBEs, prime contractors are only credited for listing subcontractors, that meet all legal requirements, but fail to be certified for reasons determined by the Division, in

    accordance with M/WBE Certification requirements. ACESTARZ was not legally qualified to engage in the construction business at the time of bid opening, and withdrew its M/WBE Certification Application."[7] Therefore, a substitution for the firm cannot be allowed.

    
    

27. Section IV.C.5. of the Special Provision provides that the Final Notice of Noncompliance "shall be final and conclusive. The Compliance Administrator shall recommend that the Compliance Review procedure be initiated with respect to the next lowest responsive Bidder, or all remaining bids may be rejected and the project readvertised." A compliance review was not initiated for Danville-Findorff because, on September 4, 1998, Pass delivered its Formal Written Protest to the School Board. Pass stated in the protest that "the stated basis for declaring Pass International, Inc. to be not in compliance with the M/WBE subcontracting requirements set forth in the notice of August 26, 1998, is clearly in error." Specifically, Pass challenged

    Ms. Freeman's conclusion that Acestarz was not qualified to do the work specified in the Form FM 4828 because it was not licensed at the time Pass submitted its bid.

28. The issues raised in Pass's protest were resolved when Ms. Freeman sent Pass a letter dated September 29, 1998, entitled "RESCISSION OF NOTICES OF NONCOMPLIANCE" for the BTW project.8 Ms. Freeman rescinded the Final Notice of Noncompliance because, at the recommendation of the School Board's legal counsel, she reconsidered the definition of the term "qualified" contained in

    Section I.A.21. of the Special Provision and determined that, under this definition, Acestarz "is considered a qualified subcontractor for purposes of M/WBE Compliance." Specifically, Ms. Freeman concluded that, pursuant to Section I.A.21. of the Special Provision, it was not the responsibility of the Division of Business Development and Assistance to determine whether Acestarz was qualified to do the work included in Pass's bid submittal. Rather, according to Ms. Freeman, it was Pass's responsibility.

29. In addition, Ms. Freeman concluded that, pursuant to Section I.A.21. of the Special Provision, an M/WBE does not need to be licensed or certified at the time the bid is submitted. Rather, it need be licensed to do the work and certified as an M/WBE Subcontractor in the appropriate category at the time it performs the work under the contract.

30. During her re-evaluation of the notices of noncompliance, Ms. Freeman also decided that it was improper to conclude during the compliance review that Acestarz was not certifiable as an African American M/WBE. A compliance review to determine whether M/WBE assistance levels are met by a bidder is done pursuant to the criteria set out in the Special Provision; the decision to grant or deny an application for M/WBE certification is based on an evaluation of the application pursuant to the standards established in School Board Rule 6Gx13- 3G-1.05. As a result, Ms. Freeman advised Pass in the

    September 29 letter that, as "the next step in the process," the Division of Business Development and Assistance would complete its review of Acestarz' certification application.9

31. Some of the criteria for certification specified in School Board Rule 6Gx13-3G-1.05 are the same as or similar to the minimum criteria for an M/WBE subcontractor to be qualified pursuant to Section I.A.21. of the Special Provision.

32. In a letter dated October 23, 1998, entitled "DENIAL OF MINORITY/WOMEN BUSINESS ENTERPRISE (M/WBE) CERTIFICATION,"

    Ms. Freeman advised Joseph Akoni that the documents he submitted failed to show that he "has the capability, knowledge, training, education, and experience needed, to independently guide the future and destiny of Acestarz' construction activities." (Emphasis in original.) Ms. Freeman also observed that, as a matter of statutory law, Acestarz' Hispanic qualifying agent, Robert Joseph Mijares, "has the responsibility to supervise, direct, manage and control the contracting and construction activities of Acestarz." Ms. Freeman concluded: "In summary, Acestarz's construction activities appear, at best, to be managed and controlled jointly by an African American and a non-African American. Therefore, the firm failed to establish eligibility for certification as African American-owned and controlled business, as prescribed by School Board rules." A copy of this denial notice was sent to Pass.

33. Acestarz appealed the decision to deny its application for certification as an African American M/WBE. Ms. Freeman's decision was affirmed by the Certification Appeals Committee, and, in a letter dated November 20, 1998, Ms. Freeman sent to Acestarz' attorney the "FINAL MINORITY/WOMEN BUSINESS ENTERPRISE (M/WBE) CERTIFICATION DENIAL NOTICE."

34. Section III.D. of the Special Provision specifies that, if an M/WBE listed on Form FM 4828 is "determined not to be certifiable, [the M/WBE] must be substituted with another certified or certifiable M/WBE before award." Accordingly, on December 11, 1998, Pass proposed to use TCOE Corporation, a certified African American M/WBE, as a substitute for Acestarz, to do the same scope of work for $550,000. The request to substitute TCOE had not been granted or denied at the time of the final hearing.

    Summary

    
    

35. With respect to the first and second factual issues raised in Danville-Findorff's formal bid protest, the evidence presented is sufficient to establish that Acestarz was neither licensed nor certified as an African American M/WBE at the time Pass submitted its bid on the BTW project. This is irrelevant, however, to a determination of whether Pass's bid is in compliance with the bid specifications because, pursuant to Section I.A.21. of the Special Provision, an M/WBE subcontractor

    need be licensed and certified only "at the time it is scheduled to perform" work under the contract.

36. With respect to the third issue raised in its formal bid protest, Danville-Findorff presented evidence during the hearing regarding the licensing requirements for construction contractors found in Chapter 489, Florida Statutes, and in Chapter 10, Code of Metropolitan Dade County. Its apparent aim in presenting this evidence was to establish that, because Acestarz was not licensed by the state or the county, Acestarz could not submit a proposal to Pass for inclusion in its bid on the BTW project under the definition of "contracting" in the statute and in the code provision. In essence, Danville-Findorff is attempting to challenge the provision in Section I.A.21. of the Special Provision which requires that an M/WBE subcontractor be licensed at the time it is scheduled to perform work on the project. Danville-Findorff may not do so in this proceeding:

    The notice of protest challenging the specifications contained in an invitation to bid must be filed within seventy-two hours "after the receipt of . . . intended project plans and specifications in an invitation to bid or request for proposals, and the formal written protest shall be filed within 10 days after the date the notice of protest is filed." Section 120.57(3)(b), Florida Statutes (1997). Danville-Findorff protested only the School Board's intention to award the contract to Pass, and the protest was filed after the bids were opened.

37. With respect to the fourth issue raised in Danville- Findorff's formal bid protest, the evidence is uncontroverted that Joseph Mijares, an employee of Pass until October 1998, acted as the qualifying agent for Acestarz, as that term is defined in Section 489.105(4), Florida Statutes. Danville- Findorff's purpose in presenting this evidence is apparently to establish that Mr. Mijares exerts complete control over Acestarz by operation of this statute. According to Danville-Findorff, this level of control by a Hispanic violates School Board Rule 6Gx13-3G-1.05.I. which requires that an African American M/WBE be fifty-one percent "owned and controlled, in form and in substance" by African Americans. The issue of control is, however, not relevant to a determination of whether a bidder is in compliance with the terms of the Special Provision. Rather, the issue of control is relevant only to a determination of whether an application for certification as an African American M/WBE should be granted or denied pursuant to School Board Rule 6Gx13-3G-1.05.

38. With respect to the sixth issue raised in its formal bid protest, Danville-Findorff presented no credible evidence to establish that it was placed at a competitive disadvantage with regard to its bid on the BTW project because an employee of Pass acted as qualifying agent for Acestarz for purposes of Acestarz' application for licensure as a general contractor.

39. With respect to the seventh issue raised in Danville- Findorff's formal bid protest, the evidence is uncontroverted that Acestarz did not submit an application for certification as an African American M/WBE with its Letter of Intent. This was unnecessary pursuant to Section III.A.3. of the Special Provision because Acestarz' application for certification was submitted on or about June 1, 1998, and was pending at the time Pass's bid was submitted.

40. With respect to the fifth and eighth issues raised in its formal bid protest, Danville-Findorff presented sufficient evidence to establish with the requisite degree of certainty that, at the time the bid package was submitted, Pass did not satisfy the eight-percent assistance level for African American M/WBE participation on the BTW project:

    1. Pass did not satisfy the responsibility imposed on it in Section I.A.21. of the Special Provision to determine whether Acestarz was "qualified" or "potentially qualified” to do the work it had proposed to do on the BTW project. Mr. Louden, the Pass employee who prepared the Pass's bid package for the BTW project, did not possess adequate information regarding Acestarz or its president, Mr. Akoni, to determine whether Acestarz satisfied the criteria set out in Section I.A.21., which are the minimum criteria that must be met by a subcontractor to be "potentially Qualified to do specific work." In addition,

       Mr. Louden failed to make any meaningful inquiry into the qualifications of Acestarz.

    2. Because Pass lacked adequate information regarding Acestarz' qualifications and failed to make meaningful inquiry to ascertain Acestarz' qualifications at the time Pass submitted its bid package, Pass could not, in good faith, represent to the School Board that Acestarz was "qualified" or “potentially qualified” at the time the bid was submitted, which it did pursuant to Section III.B.A. of the Special Provisions when it listed Acestarz on the Form FM 4828.9

    3. Because Pass did not conform to the requirements of Section I.A.21. and Section III.B.4. of the Special Provision when it listed Acestarz as a "qualified" or “potentially qualified” African American M/WBE subcontractor, it was not entitled to use Acestarz to meet the African American M/WBE assistance levels for the BTW project at the time it submitted its bid. Furthermore, under these circumstances, Pass cannot substitute another subcontractor for Acestarz because that option is available pursuant to Section III.D. of the Special Provision only upon the denial of the application for certification of an M/WBE which was not certified at time the bid was submitted.

41. Because Pass's bid does not meet the assistance levels established for African American M/WBEs set out in the Special Provision for Compliance with M/WBE Subcontracting Assistance Levels Participation, Pass's bid was not in compliance with the

    Special Provision at the time it was submitted. Therefore, Pass's bid is not responsive to the bid specifications for the BTW project.

42. The award the contract for the BTW project to Pass would be contrary to the bid specifications and would be arbitrary in light of the facts found herein.

    CONCLUSIONS OF LAW

    
    

43. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Section 120.57(1), Florida Statutes (1997).

44. Danville-Findorff, the second lowest bidder on the BTW project, filed a bid protest pursuant to Section 120.57(3), Florida Statutes, challenging the intention of the School Board to award the contract for the project to Pass as the lowest responsive bidder. Section 120.57(3)(f) provides in pertinent part:

    In a competitive procurement protest, other than a rejection of all bids, the administrative law judge shall conduct a de novo proceeding to determine whether the agency's proposed action is contrary to the agency's governing statutes, the agency's rules or policies, or the bid specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious. . . .

45. "A capricious action is one taken without thought or reason or irrationally. An arbitrary decision is one not

    supported by facts or logic." Agrico Chemical Co. v. Department of Environmental Regulation, 365 So. 2d 759, 763 (Fla. 1st DCA 1978). The inquiry to be made in determining whether an agency has acted in an arbitrary or capricious manner involves consideration of "whether the agency: (1) has considered all relevant factors; (2) has given actual, good faith consideration to those factors; and (3) has used reason rather than whim to progress from consideration of these factors to its final decision." Adam Smith Enterprises v. Department of Environmental Regulation, 553 So. 2d 1260, 1273 (Fla. 1st DCA 1989).

46. Because Danville-Findorff has challenged the School Board's intent to award the contract for the BTW project to Pass, it has the burden of proving "a ground for invalidating the award." State Contracting and Engineering Corp. v. Department of Transportation, 709 So. 2d 607, 609 (Fla. 1st DCA 1998);

    Section 120.57(3)(f), Florida Statutes ("Unless otherwise provided by statute, the burden of proof shall rest with the party protesting the proposed agency action."). Because there is no statute providing otherwise, the findings of fact in this proceeding "shall be based upon a preponderance of the evidence." Section 120.57(1)(h), Florida Statutes.

47. This is a de novo proceeding, which the court in State Contracting described as follows: "The judge may receive evidence, as with any formal hearing under section 120.57(1), but the object of the proceeding is to evaluate the action taken by

    the agency.” 709 So. 2d at 609. The court cites Intercontinental Properties, Inc. v. State Department of Health and Rehabilitative Services, 606 So. 2d 380, 386 (Fla. 3d DCA 1992) for the definition of a de novo hearing in bid protest proceedings prior to the 1996 revision of Chapter 120, Florida Statutes: A de novo proceeding

    simply means that there was an evidentiary hearing during which each party had a full and fair opportunity to develop an evidentiary record for administrative review purposes. It does not mean, . . . that the hearing officer [now administrative law judge] sits as a substitute for the Department and makes a determination whether to award the bid de novo. Instead, the hearing officer sits in a review capacity, and must determine whether the bid review criteria set forth in [Liberty County v.] Baxter’s Asphalt [and Concrete, Inc., 421 So. 2d 505 (Fla. 1982)] have been satisfied.

    Of course, since the 1996 revision to Chapter 120, the bid review criteria are those set forth in Section 120.57(3)(f), as quoted above.

48. The proposed agency action that is the subject of this proceeding is the School Board's announced intention to award the contract for the BTW project to Pass. On the basis of the facts found herein, such an award would be contrary to the bid specifications for this project. The Special Provision for Compliance with M/WBE Subcontracting Assistance Levels clearly contemplates that only qualified M/WBEs may be used to fulfill the M/WBE assistance levels and that the bidder must determine

    that the M/WBE Subcontractors are qualified before it submits its bid.

49. The School Board interprets Section IV. of the Special Provision as limiting the scope of the compliance review to nothing more than a calculation of the price of the work to be done by each M/WBE listed on the Form FM 4828 as a percentage of the total bid price to confirm that the assistance levels specified for the project are met by the M/WBEs listed. This interpretation is clearly erroneous because it renders nugatory the requirement that the listed M/WBEs be qualified to do the work at the time the bid is submitted, and it is contrary to the declaration in Section I.A.6. of the Special Provision that a compliance review encompasses a determination of whether the bidder “is in Compliance with these Provisions.” (Emphasis added.)

50. The School Board cites State Contracting as a factually similar case which supports its interpretation of the scope of the compliance review under the Special Provision. In State Contracting, the rule at issue, Department of Transportation Rule 14-78.003, Florida Administrative Code, specifies, among other things, the information which must be provided with a bid in order for the bid to be deemed responsive with regard to the participation level for Disadvantaged Business Enterprises (“DBE”). Rule 14-78.003(2)(b)3. provides that a bidder must

    submit with its bid DBE Utilization Form which shows that the DBE contract goals have been met. Rule 14-78.003(2)(b)3.c. provides

    A DBE Utilization Form will be deemed complete if it lists the prime contractor’s name, the project number(s), and the name of the DBE, describes the type of work to be performed by the DBE, states the total amount claimed as credit for the subcontract, and contains the signature of the DBE’s representative. . . .

51. The Department of Transportation interprets this rule as limiting the inquiry into whether the DBE goal has been met to an examination of the face of the DBE Utilization Form, and the Department concluded in its final order that the information contained on the DBE form was sufficient to meet the requirements of the rule regarding DBE participation. The court in State Contracting upheld the Department’s interpretation of its rule and agreed with the Department’s determination that “the [administrative law] judge had exceeded the scope of his authority in the de novo [bid protest] proceeding by substituting his interpretation of the rule for the agency’s interpretation.” 709 So. 2d at 609. As a result, the court concluded that the administrative law judge could not consider evidence submitted at the hearing on the bid protest to test the accuracy of the representation on the DBE Utilization Form that the DBE participation goals were met.

52. Contrary to the School Board’s argument, the instant case and State Contracting are not factually similar. The requirements of the Special Provision relating to M/WBE

    assistance levels are significantly different from the requirements of the Department of Transportation Rule 14-78.003. Most importantly, the DBEs listed on the DBE Utilization Forms, with one limited exception,11 must be certified as DBEs prior to their being allowed to submit proposals to prime contractors bidding on Department of Transportation projects. Pursuant to the School Board's Special Provision, however, an M/WBE listed on the Form FM 4828 need not be certified at the time the bid is submitted. The bidder does not, however, risk going below the M/WBE assistance levels because it has listed an M/WBE which is found ineligible for certification because, if the M/WBE’s application for certification is denied after the bid is submitted, the bidder is automatically allowed to substitute another M/WBE. The bidder is not, therefore, the guarantor of the certifiability of an M/WBE; that decision is made by the director of the Division of Business Development and Assistance in accordance with the criteria set forth in the School Board’s rules.

53. On the other hand, because the listing of an M/WBE on the Form FM 4828 constitutes the bidder’s “representation” that the M/WBE is qualified to do the work, the bidder is in essence required under the Special Provision to provide assurances that the M/WBEs listed on the Form FM 4828 are qualified at the time the bid is submitted. This requirement is the only assurance the School Board has that a bidder is making a good faith effort to

    comply with the M/WBE assistance levels established for the project.

54. It is essential that a bidder inquire with due diligence into an M/WBE’s qualifications before it submits its bid. If the bidder has not made such a good faith inquiry, it will be impossible for the bidder to satisfy the requirements set forth in Section V.B.1. and 2. of the Special Provision, which are the only sections in the Special Provision governing substitutions for unqualified M/WBEs. For example, if the bidder which has been awarded a contract finds out after the contract is awarded, but before the subcontract is executed, that an M/WBE is not qualified, another M/WBE can be substituted only if the bidder

    demonstrates to [the Owner’s Representative’s] satisfaction that, as a result of a change in circumstances beyond its control of which it was not aware and could not reasonably have been aware until subsequent to the date of award of the contract, a Subcontractor has become not Qualified, . . . the Successful Bidder shall be excused from executing such subcontract and will be allowed to substitute the Subcontractor with another M/WBE within the same race/ethnic/gender category for a price not less than that identified for the substituted M/WBE Subcontractor.

    Section V.B.1., Special Provision (emphasis added). A bidder that has not made a good faith inquiry into the M/WBE’s qualifications can never meet the standard established for a substitution when an M/WBE turns out to be unqualified to do the work.

55. The court in State Contracting reiterated the rule set forth in Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So. 2d 716, 719 (Fla. 1983), that an agency’s interpretation of its own rule should be “entitled to great weight and should not be overturned unless clearly erroneous.” In the instant case, the School Board’s interpretation of the Special Provision as limiting the compliance review to a facial examination of the Form FM 4828 is clearly erroneous for the reasons stated.

56. This is not to say that the Compliance Administrator must make an independent inquiry into the qualifications of all M/WBEs listed on Form FM 4828 as a matter of course. Rather, it is reasonable for the Compliance Administrator to presume that the bidder has made the necessary inquiries to enable it to represent, in good faith, that the M/WBEs listed are qualified to do the work at the time the bid is submitted. However, when a dispute arises regarding the qualifications of an M/WBE listed by the apparent low bidder, the Compliance Administrator has an obligation to evaluate all factors relevant to the bidder's compliance with Section I.A.21. of the Special Provision. See Adam Smith Enterprises, 553 So. 2d. at 1273.

57. The School Board is required to consider all relevant factors in awarding the contract for the BTW project, including the findings of fact derived from the evidence submitted in this proceeding. On the basis of the facts found herein, Danville-

Findorff has proven by a preponderance of the evidence that the award of the contract for the BTW project to Pass would be arbitrary. The evidence presented at the hearing establishes with the requisite degree of certainty that Pass's representation that Acestarz was qualified to do the work proposed was not based on a meaningful inquiry into whether Acestarz satisfied the minimum criteria for qualification. As a result, Pass did not comply with the requirements of the Special Provision at the time its bid was submitted, and Pass cannot, therefore, apply the

$500,000 proposal by Acestarz toward the African American M/WBE assistance levels for the BTW project. Accordingly, Pass’s bid on the BTW project is not responsive to the bid specifications for the BTW project because Pass did not comply with the M/WBE assistance levels specified for the project.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board reject the bid of Pass International, Inc., as non-responsive to the bid specifications and that a compliance review be initiated with respect to the next lowest responsive and responsible bidder.

DONE AND ENTERED this 14th day of April, 1999, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1999.

ENDNOTES

1/ See paragraph 35.

2/ Transcript, volume I at 80-82.

3/ Transcript, volume I at 121-22.

4/ The Division of Business Development and Assistance is responsible both for performing compliance reviews to determine if M/WBE assistance levels have been met and for reviewing and granting or denying applications for M/WBE certification. The Division Director is also the Compliance Administrator.

5/ In her letter of August 26, 1998, discussed in paragraph 25, Ms. Freeman stated that Pass had requested authorization to substitute another M/WBE for Acestarz on August 12, 1998, eight days after it had represented that Acestarz was qualified to do the work specified on the Form FM 4828 and five days before Acestarz withdrew its application for certification as an African American M/WBE.

6/ Pass orally requested permission to substitute another African American M/WBE for Acestarz at the compliance meeting held on September 1, 1998, and formally requested such permission in a letter dated September 2, 1998.

7/ In a letter to Ms. Freeman dated August 17, 1998, Joseph Akoni withdrew Acestarz' application for certification as an African American M/WBE after being advised by Ms. Freeman that it

could not be certified as an African American M/WBE because it had an Hispanic qualifying agent.

8/ The September 29, 1998, letter rescinding the notices of noncompliance sent to Pass on August 26 and September 4, respectively, has been treated by all parties to this proceeding as the equivalent of a Notice of Compliance. After the September 29 rescission letter, the School Board apparently would have awarded the contract for the BTW project to Pass, but for Danville-Findorff's filing of its notice of protest.

9/ In a letter dated September 1, 1998, Mr. Akoni withdrew the withdrawal of Acestarz application for M/WBE certification and requested that the Division of Business Development and Assistance continue processing the application he had submitted on or about June 1, 1998.

10/ Even assuming that it would be appropriate to make a determination in this proceeding regarding Acestarz’ actual or potential qualifications to do the work on the BTW project, such a finding cannot be made because the evidence by Danville- Findorff was insufficient to establish that Acestarz was unqualified and the evidence submitted by Pass was insufficient to establish that Acestarz was qualified.

11/ This exception applies when an incorrect DBE subcontractor has been listed on the form. Such a listing

will be considered to contain a technical error which can be corrected by submission of a corrected DBE Utilization Form when one of the two following conditions occurs:

* * *

(II) The subcontractor shown on the DBE Utilization Form was previously certified as a DBE, but the certification expired before the DBE Utilization Form was submitted to the Department. To meet this criterion, the subcontractor shown on the DBE Utilization Form must have been listed as a DBE in the Department’s DBE Directory at least one time within the last three consecutively published DBE Directories preceding the date the DBE Utilization Form was submitted to the Department.

Rule 14-78.003(2)(b)3.d., Florida Administrative Code.

COPIES FURNISHED:

Neil Flaxman, Esquire Neil Flaxman, P.A.

550 Biltmore Way, Suite 780 Coral Gables, Florida 33134

Twila Hargrove Payne, Esquire Johnny Brown, Esquire

1450 Northeast Second Avenue Suite 400

Miami, Florida 33132

David L. Swimmer, Esquire Michael C. Spring, Esquire 8525 Southwest 92nd Avenue Suite B-4

Miami, Florida 33156

Tom Gallagher Commissioner of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Roger O. Cuevas Superintendent

Miami-Dade County School Board

1450 Northeast Second Avenue, No. 403

Miami, Florida 33132-1308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

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Docket for Case No: 98-005111BID

Orders for Case No: 98-005111BID