The Issue Whether petitioner was required or entitled to enroll in the Florida Retirement System at any time prior to March of 1989?
Findings Of Fact In the winter of 1979, petitioner DeWayne Manuel began performing building inspection services for Gulf County. He had responded to a newspaper advertisement entitled "JOB OPPORTUNITY," which stated, "Work will be under supervision of Building Inspector . . . Equal Opportunity Employer." Respondent's Exhibit No. 9. On the recommendation of E. F. "Red" Gunn, then head of Gulf County's Building Department, the Board of County Commissioners engaged him "temporarily" as a building inspector on March 13, 1979. Testimony of Manuel and Gortman. In the view of Commissioner Jimmy O. Gortman, Mr. Manuel was treated no differently than any other county employee. But Gulf County's Building Department was funded from permit fees, rather than from general county revenues. The building department was not "on the ad valorem tax budget." Testimony of Gortman; Stipulation. For the period March 13, 1979, to September 30, 1979, Gulf County paid petitioner $1,525.52. For the fiscal year ended September 30, 1980, Gulf County paid petitioner $3,840.83. Effective December 1, 1980, petitioner became responsible for all building inspections in Gulf County, not just those on projects north of the intracoastal canal. Petitioner's Exhibit No. 1A, Book 11, pp. 366-7. For the fiscal year ended September 30, 1981, Gulf County paid petitioner $13,319.83. For the fiscal year ended September 30, 1982, Gulf County paid petitioner $22,188.00, which represented permit fees from which a telephone expense of $24.00 a month, aggregating $288.00, had been deducted. Before the fiscal year ended September 30, 1982, Gulf County had deducted no expenses from permit fees, in calculating petitioner's compensation. Deposition of McCroan. At a county commission meeting on January 11, 1983, Mr. Gunn gave "an oral report on . . . problems" "with Building Inspector DeWayne Manuel's job performance," "fired Building Inspector Manuel and then resigned himself." Petitioner's Exhibit No. 1A, Book 12, p. 305. But, before the meeting concluded, "Mr. Gunn agreed to continue working as Building Official . . . and he then rehired Mr. Manuel as Building Inspector." Id., p. 306. When the county commission met on May 24, 1983, Mr. Gunn resigned, effective June 1, 1983, and "recommended the Board hire DeWayne Manuel as the Building Official." Petitioner's Exhibit No. 1A, Book 12, p. 381. At the same meeting, the Board voted unanimously to accept this recommendation. Id. For the fiscal year ended September 30, 1983, Gulf County paid petitioner $18,894.40. At its meeting on September 13, 1983, the "Board agreed to pay DeWayne Manuel . . . $1,130 per month as long as funds are available from the Building Permit Revenues," Petitioner's Exhibit No. 1A, Book 12, p. 447, thereby "capping" his compensation from the Building Department for the first time. Perhaps because he also served an eight- or nine- month stint as acting mosquito control director, however, Gulf County paid petitioner $41,985.28 during the fiscal year ended September 30, 1984. Testimony of Manuel; Deposition of McCroan. On November 13, 1984, the Board voted to pay "DeWayne Manuel $35,540 per year on a contract basis." Petitioner's Exhibit No. 1A, Book 13, p. 215. Although the Board voted changes in his rate of compensation thereafter, his income no longer depended on Building Department collections. For the fiscal year ended September 30, 1985, Gulf County paid petitioner $36,532.01; and for the fiscal year ended September 30, 1986, Gulf County paid petitioner $39,011.98. McCroan Deposition. During calendar year 1986, Gulf County paid petitioner $39,315.91. During calendar year 1987, Gulf County paid petitioner $41,929.77. During calendar year 1988, Gulf County paid petitioner $44,891.75. Respondent's Exhibit No. 6 to Deposition of Lister. On May 24, 1988, in response to audit criticisms, the Board entered into its first written contract with petitioner, which provided: Revenue source - All monies received from the sale of all types of building permits and interest earned on funds received from the sale of building permits in Gulf County shall be the revenue source for all costs and expenses of the Building Inspection Department. Separation of Costs and Expenses The Board of County Commissioners (Gulf County) shall pay or provide the following expenses or resources out of the above mentioned revenue source: secretary, office space, office supplies, administrative costs for operation of department utilities, telephone expenses (except for telephone expenses listed in Section II. B. 1. below) errors and omissions insurance coverage and a contract price of $40,905.00 to the Building Official for FY 87-88 (paid monthly). Contract price is calculated in the following manner. A $40,000.00 figure was established by the Board of County Commissioners for FY 86-87 (Book 14 Page 119). The contract price was increased for FY 87-88 by the same amount that all other Court House employees received, $455.00. In FY 87-88 the contract price was increased by $405.00 represents 2% of $22,500.00 which was estimated to be the salary after the deduction of expenses (listed in section B. 1., 2., 3., and 4. below). Building Official - Out of the $40,905.00 contract price, the Building Official is to pay the following: Basic (monthly) mobile telephone expenses In-county travel expenses All benefits (i.e. F.I.C.A., retire-ment, vacation, health and life insurance) All income tax withholdings Contracted services to be performed by the Building Official Be available (in office, on inspections, in meetings, or etc.) a minimum of 40 hours per week. Be responsible for the operations of the Building Department. Be responsible for all inspections required by the Standard Building, Plumbing, Mechanical, Gas, Swimming Pool, and the National Electric Codes, as well as such other codes which may be adopted in Gulf County. Be responsible for the duties of the Local Administrator as defined in the Gulf County Flood Ordinance. Such other duties as may be directed by the Board of County Commissioners of Gulf County. This agreement shall expire September 30, 1988 and may be cancelled at an earlier date by either party for good cause, by giving thirty (30) days notice. Respondent's Exhibit No. 8 to Lister Deposition. The contract provisions reflected the relationship that had existed between petitioner and Gulf County for some time before it was actually signed. Later the same year, petitioner's status was called into question. On September 27, 1988, Mr. Manuel was a topic of discussion at the County Commission meeting. Chairman Birmingham stated that he is satisfied with the present system, and stated that if the Building Department contract is not valid, he will vote to hire Mr. Manuel as a full-time County employee. Commissioner Branch stated that he has no problem with Mr. Manuel, and stated that he is very dedicated to Gulf County. Commissioner Traylor also stated that Mr. Manuel has done a fine job. After discussion, Chairman Birmingham requested that Attorney Rish check to see if different arrangements need to be made concerning this position (make him a permanent County employee, etc.). Upon inquiry by Ms. Arnold about the contract ending on September 30, 1988, and about being able to apply for the job, Attorney Rish stated that anyone could apply at any time. Upon further inquiry by Ms. Arnold about Mr. Manuel having a life-time contract, Chairman Birmingham stated that, as far as he is concerned, Mr. Manuel has the job unless he messes up. Petitioner's Exhibit No. 1A, Book 15, pp. 698-9. Two additional entries in board minutes reflect pertinent developments on February 14 and 28, 1989, respectively: Commissioner Gortman moved that the Board hire Building Inspector Manuel as a permanent County employee, under the direction of the Board (to negotiate salary, travel, etc.), effective March 1, 1989. Chairman Birmingham gave the Chair to Vice Chairman Peters, and seconded the motion. After discussion about the history and the financial situation of the Building Department, Commissioner Creamer stated that he would like an opportunity to discuss this matter with Mr. Manuel before making a decision. Chairman Peters stated that he is under the same impression as Commissioner Creamer, and he is also concerned about whether or not the job should be advertised. Upon inquiry by Commissioner Gortman, Attorney Rish reported that it would be legal for the Board to hire Mr. Manuel as a regular County employee, if Mr. Manuel is agreeable (he also stated that he will need to read the existing contract). After discussion, the motion passed with the following vote: Commissioners Birmingham, Creamer Gortman, and Parker voted yes. Chairman Peters voted no. Chairman Peters returned the Chair to Commissioner Birmingham. Chairman Birmingham then requested that Commissioner Gortman and Commissioner Parker work out the details of Mr. Manuel's duties and his salary, travel, etc., and report back to the Board at the next regular meeting. Upon inquiry by Commissioner Gortman, Attorney Rish reported that the Board has no problem with breaking the contract, if Mr. Manuel has no problem with it. . . . Commissioner Gortman moved that the Board hire DeWayne Manuel as a County employee with duties as Building/Fire Official (putting the Building Department under the direction of the Board) for the remainder of this fiscal year at $16,380.00 - salary, $1,230.00 - social security, and $2,356.00 - retirement, which totals $19,966.00 plus $.17 per mile for in-County travel not to exceed $4,760.00, which will give a grand total of $24,726.00 (to re-negotiate next fiscal year). He also included in his motion that Mr. Manuel will work 40 hours per week (and on weekends, if needed) under this salary, doing the Building Department work plus anything the Board directs him to do. Commissioner Gortman stated that Mr. Manuel is to have 10 years seniority, and is to be allowed to participate in the State retirement program (he will have to pay any back retirement). Upon inquiry by Commissioner Creamer and after discussion about the rate per mile for other County employees. Commissioner Gortman also included in his motion that the Board pay all County employees $.17 per mile for in-County travel and that the revenue from the inspections will go into the Building Inspector's budget. Commissioner Parker seconded the motion. Commissioner Peters stated that he feels this job should be advertised. Commissioner Parker stated that Mr. Manuel has been working without a contract since September and if he has worked this long without a contract, he should have the benefit of the doubt. The motion then passed with the following vote: Chairman Birmingham and Commissioners Creamer, Gortman, and Parker voted yes. Commissioner Peters voted no. Jean Arnold discussed that she is opposed to the Building Department funds not being controlled in the past, and is opposed to Mr. Manuel being the Building Inspector. . . . On March 1, 1988, there was no change in petitioner's hours, duties, job description or the number of people working in the Gulf County Building Department. The separate fund containing building permit fees was abolished, and petitioner began to be paid from general revenues, including ad valorem taxes. He also enrolled as a regular member of the Florida Retirement System on March 1, 1989. Testimony of Gortman and Birmingham. Gulf county prepared and filed 1099 forms reflecting moneys paid petitioner for the years 1985 through 1988, and for the first two months of 1989. Before 1985, the county did not prepare either a W-2 form or a 1099 form or otherwise report petitioner's income to the Internal Revenue Service. The only W- 2 form the county produced for him covered the period from March 1, 1989, until he left Gulf County's employ on September 30, 1989. Asked why she had not produced W-2 forms for petitioner before March 1, 1989, Donna R. McCroan, the county payroll clerk, explained that "[h]e had not gone through my payroll system, and that unless you run them through - - put his figures through my payroll system, my figures wouldn't balance." Deposition of McCroan, pages 14 and 15. At different times, Gulf County paid petitioner weekly, bi-weekly and monthly. Petitioner was listed as a vendor, rather than as an employee, for some time before March 1, 1989. At first, petitioner received compensation equivalent to the building permit fees Gulf County took in, during the pertinent period, on account of construction permitted in Gulf County, north of the intracoastal canal. Eventually added to this sum was a fraction of the fees Gulf County collected on behalf of Wewahitchka and Ward Ridge; and fees from permits issued for Gulf County south of the canal. Originally, petitioner's compensation was never based on invoices he submitted. For each pay period, the county clerk's office prepared a voucher listing the building permits that issued during that pay period. Petitioner's Exhibits Nos. 6 and 7. Because applicants for building permits paid fees as or before permits issued, before inspection services were needed, petitioner's compensation varied from period to period, not with the number of inspections or other work that he performed, but with the number of building permits "pulled." At no time was he paid for inspections as piecework. At county expense, petitioner was trained as a building inspector. He performed building inspection services under Mr. Gunn's supervision until the latter's retirement. Petitioner was obliged to follow the methods of inspection prescribed by the building code, but free to determine whether or not code requirements were met in a particular case. He had to use certain receipt and other forms, and keep records in a prescribed fashion to facilitate audits. No written job descriptions defined the duties of Building Department employees. Even when petitioner answered to Mr. Gunn, the Board of County Commissioners sometimes assigned him tasks directly, in areas unrelated to the building department. Petitioner helped obtain a permit from the state Department of Environmental Regulation for the county landfill, dealt with the state Department of Transportation on questions concerning bridges, dealt with the state Department of Corrections in connection with the county jail, secured a mosquito control grant and various other grants for Gulf County, and performed other jobs as directed. When working on things other than building inspections, the county commissioners often told him "exactly what to do." Testimony of Birmingham. When Gulf County hired him, Mr. Manuel sold his Western Auto Store and, beginning in April of 1979, devoted 40 hours or more a week to county duties. He never took vacations. His compensation was not reduced the only time he missed work for illness. Except for time in the field, he did all his work on Gulf County's "premises," in an office the county supplied. Gulf County provided not only an office but, eventually, a secretary and other building inspectors. Petitioner supervised these county employees. The county paid workmen's compensation premiums for petitioner, furnished office supplies and equipment, including a computer; and equipment for use in the field, including piling boring equipment and an electrical inspection tool known as a Megger. Until petitioner acquired a mobile telephone, Gulf County paid all telephone expenses the Building Department incurred. Afterwards, it paid telephone expenses except for the basic mobile telephone charge. Gulf County reimbursed petitioner for travel out of the county on the same basis that it reimbursed all county employees. Building inspection services petitioner or county employees under his supervision performed for Wewahitchka or Ward Ridge occurred under the terms of intergovernmental agreements, and on behalf of Gulf County. Otherwise, petitioner performed no building inspection or other services for any person or entity other than Gulf County while he worked for the county. Upon Mr. Gunn's departure, petitioner assumed supervisory responsibilities for the Gulf County Building Department, and served as department head.
Recommendation It is, accordingly, RECOMMENDED: That respondent grant petitioner regular membership in the Florida Retirement System for the period April 1, 1979, to February 28, 1989. DONE and ENTERED this 1st day of November, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 3, 4, 5, 6, 7 and 8 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 1 and 2 refer to a county ordinance not in evidence. Petitioner's proposed finding of fact No. 9 pertains to a subordinate matter. Respondent's proposed findings of fact Nos. 1, 4 through 8 and 10 through 16 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 2, the fees were for building permits, not for inspections as such. With respect to respondent's proposed finding of fact No. 3, the evidence showed he took sick leave. With respect to respondent's proposed finding of fact No. 9, there was testimony that the County's payroll clerk prepared the vouchers. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, FL 32399-1560 De Wayne Manuel P.O. Box 7593 Daytona Beach, FL 32116 De Wayne Manuel 212 Tapper Drive P.O. Box 305 Port St. Joe, FL 32456 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
Findings Of Fact Respondent Rubin Wilson holds General Contractor's License No. RG 0019093. He is employed full time at the Pensacola Naval Base, and works evenings and weekends as a building contractor. Amos and Julia Smith entered an oral contract with Respondent in September, 1977, for construction of a house on their property at the northwest corner of Bobe and 16th Avenue in Pensacola. The Smith paid Wilson $4,000 as a down payment on a total agreed price $20,000. The parties disagree as to how the remaining $16,000 was to be paid. The Smiths understood that on completion of the house they would make a further $1,000 payment and obtain $15,000 in financing from Mutual Federal Savings and Loan. Wilson contends the Smiths were to pay the remaining $1,000 personal payment during the pendency of construction and secure financing whereby Wilson could receive "draws" as he progressed on the project. Respondent obtained a building permit in November, 1977. He requested a foundation inspection in May, 1978, and a slab inspection in November, 1978. He did some framing work in January, 1979, and had some materials delivered to the site in March, 1979. Thereafter, Wilson did no further work on the project which was about ten percent complete. In April, 1979, the Smiths sought to obtain a written contract from Respondent but were unsuccessful. They brought suit against Wilson in May, 1979, to terminate the oral contract and recover their down payment. Wilson counterclaimed for $6,600 and the suit was dismissed with prejudice by agreement of the parties. The house was eventually completed by a second contractor at a substantially higher cost to the Smiths.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found not guilty of violating Subsection 468.112(2)(h) Florida Statutes (1978 Supp.). It is further RECOMMENDED that the Administrative Complaint be dismissed. DONE AND ENTERED this 16th day of June, 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1981. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 R. M. McDavid, Esquire 103 North DeVilliers Street Pensacola, Florida 32501
The Issue Whether Respondent's intended rejection of all responses to its solicitation of "qualifications" from entities interested in contracting with Respondent to perform construction management at risk services in connection with a project at Fort Lauderdale High School is illegal, arbitrary, and/or dishonest, as alleged by Petitioner.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a district school board responsible for the operation, control and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Fort Lauderdale High School) and for otherwise providing public instruction to school-aged children in the county. As authorized by Florida Administrative Code Rule 6A- 1.012, Respondent has "establish[ed] purchasing rules" (denominated as "policies"). Respondent's Policy 3320 contains Respondent's "Purchasing Policies." Part III of Respondent's Policy 3320 prescribes "Purchasing Policies" for Respondent's Facilities and Construction Management Division, and it provides, in pertinent part, as follows: All additions, modifications, and alterations to School Board properties shall conform with the State Requirement for Educational Facilities (SREF), Florida Building Code (FBC) and the laws of the State of Florida. School Board administrators shall obtain assistance in preparing bid specifications and applicable building permit(s) from the Facilities and Construction Management division for these items. Part VIII of Respondent's Policy 3320 addresses the subject of "protests arising from the competitive solicitation process" and incorporates the protest procedures found in Section 120.57(3), Florida Statutes. Respondent's Policy 7003 is entitled, "Pre- Qualification of Contractors and Selection of Architects, Engineers, Design Builders, Construction Managers, and Total Program Managers Pursuant to the Consultants Competitive Negotiation Act." It provides, in pertinent part, as follows: The School Board shall pre-qualify bidders for construction contracts, and, publicly announce, in a uniform and consistent manner, each occasion when construction and/or professional services are required to be purchased in compliance with governing statutes and regulations. The Superintendent shall establish procedures for the pre-qualification of contractors and selection of architects, engineers, design- builders, construction managers and total program managers consistent with this policy, applicable statutes and State Requirements for Educational Facilities (SREF). Rules The School Board authorizes the Superintendent to: Receive applications for Contractor Pre- Qualification on the attached application form in compliance with FS 1013.46 and SREF 4.1(8), as amended. . . . * * * 4. Designate an evaluation committee of eleven (11) voting members for the purpose of Pre-Qualification of contractors and selection of architects, engineers, design builders, construction managers and total program managers. * * * The committee shall make recommendations to the Superintendent regarding the pre- qualification of contractors. The Superintendent shall make recommendations to the Board: Along with a report from the committee containing findings of fact indicating the proposers' compliance with the procurement requirements and scoring criteria and the Board shall have the final approval of such recommendations. The Contractor Pre-Qualification Application Form "attached" to Policy 7003 contains the following description of the contractor pre-qualification process: The School Board ("Board") through the Superintendent or his/her designee, shall pre-qualify all "contractors" for construction contracts, and any other contracts that require a certificate issued pursuant to Chapter 489, Florida Statutes, including, but not limited to, all bidders, construction managers, design-builders, job- order contractors, term contractors, and all other types of contractors on an annual basis or for a specific project according to the rules set forth in the State Requirements for Educational Facilities (SREF) Section 4.1(8). Contractors shall be pre-qualified on the basis of the criteria set forth in SREF and included in the foregoing application form. In addition to the foregoing criteria the applicant shall provide the Dun and Bradstreet report indicated in the application. The evaluation committee shall be as set forth in Board Policy 7003. The applicant shall complete the form in its entirety and submit all required documents by the deadline set forth in the public announcement. Separate applications shall be submitted for each desired contracting category. The School Board of Broward County shall receive and either approve or reject each application for prequalification within sixty (60) days after receipt of application in its entirety and all required documents. Approval shall be based on the criteria and procedures set forth in SREF. The Board shall issue to all pre-qualified contractors a certificate valid for one (1) year from the date of approval or for the specific project(s). That certificate shall include the following: A statement indicating that the contractor may bid, propose, or otherwise be considered, on the specific project(s) or for this specific time period. A statement establishing the total dollar value of the work the contractor will be permitted to have under contract with the Board at any one time. The maximum value shall not exceed the contractor's bonding capacity or ten (10) times the net quick assets. A statement establishing the maximum dollar value of each individual project the contractor will be permitted to have under contract with the Board at any one time. The maximum value of each project may be up to twice the value of the largest similar project previously completed but shall not exceed the Contractor's bonding capacity or ten (10) times the net quick assets. A statement establishing the type of work the contractor will be permitted to provide. The expiration date of the certificate. It shall be the responsibility of the contractor to renew annually certificates not for a specific project. Financial statements or written verification of bonding capacity on file with the Board shall be updated annually. Failure to submit a new statement or verification of bonding capacity within thirty (30) days written notice by the Board shall automatically revoke a pre-qualification certificate. 1. Pre-qualified contractors may request a revision of their pre-qualification status at any time they believe the dollar volume of work under contract or the size or complexity of the projects should be increased if experience, staff size, staff qualifications, and other pertinent data justify the action. These procedures are in accordance with requirements set forth in Section 4.1 of the State Requirements for Educational Facilities. As the parties stipulated in Admitted Fact 6, "[o]n May 20, 2008, [Respondent] approved the Request for Qualifications No. 2008-030-FC (RFQ) entitled 'Construction Management at Risk Services for Districts 2, 3 and 4 Projects (Cooper City High School - Project No. 1931-99-02; Fort Lauderdale High School – Project No. 0951-27-01; Margate Elementary School – Project No. 1161-26-01; and Northeast High School – Project No. 1241-27-01),' and authorized the public announcement of the RFQ." "[In] [t]he summary explanation and background [section of] the Agenda Request Form [for this agenda item, it was] stated that the 'Facilities and Construction Management staff recommend[ed] the procurement of construction services utilizing Construction Management at Risk delivery method due to the complexity, scope and scale of the projects.'" This "delivery method" is to be distinguished from the "hard bid" or "design/bid/build" method of procurement, where a contractor is hired only after "the construction documents are completed." Under the "Construction Management at Risk delivery method," contrastingly, the construction manager typically assists in the development and "complet[ion]" of the "construction documents," offering advice and recommendations to maximize quality and cost efficiency. As a result, it is "not uncommon" for there to be post-solicitation changes in a project's scope and budget when this "delivery method" is employed. As the parties stipulated in Admitted Fact 7, "[a]t the time of [Respondent's] approval of the RFQ, the portion of the RF[Q] pertaining to [the FHS Project] had an advertised Proposed Construction Budget of $29,150,340 and a project scope which was described [in RFQ] as follows: 'Concurrent replacement in two phases to include: Phase I – Construct a 3- story Administration Classroom Building of 68,940 GSF to include Administration, 3 general classroom[s], 5 resource rooms, 4 Science Labs and related spaces, a 4-classroom ESE Suite, 1 Business Technology Lab, 1 Family and Consumer Science (ProStart) Lab, 1 Health Occupations Lab, 1 Pre-Law Public Service Education Lab, Custodial spaces, Textbook Storage and Student, Staff and Public Restrooms. Demolish Buildings 1, 2, 3, 4, 11, 12, 13 and 14.'" Phase II of the project was, at the time, described in the RFQ as follows: "Construct Parent drop off & pick up area and Staff/Visitor Parking; Construct Regional Athletic Facility; Renovate Building 8 into Science Labs; Demolish existing tennis courts & replace with 6 tennis courts; Demolish Swimming Pool; Construct basketball courts; Resurface Student Parking." These descriptions represented the "initial concept" of the FHS Project (the design of the project having been then only in the "conceptual stage" of development). Respondent wanted to have the benefit of the input and advice of a construction manager (working together with the architect selected for the project) in developing the project's design beyond the "conceptual stage." As the parties stipulated in Admitted Facts 12 through 19, "[b]etween the initial public release of the RFQ and the submission of proposed qualifications, [Respondent] issued seven (7) addenda revising the RFQ's terms and conditions," with "Addendum No. 4 chang[ing] the scope of the [FHS Project] component of the RFQ as follows": Delete the scope in Phase I to demolish Building #4. Delete the scope in Phase II to construct basketball courts and to resurface student parking. Revise the words "replace with 6 tennis courts" to be the words "construct five (5) tennis courts." Clarify phasing: In Phase I, demolish the existing track and athletic field and relocate existing baseball field. Clarify scope: In Phase II, for the staff parking construct a 3-story parking structure including required access road work. Clarify scope: Phase II includes renovation of existing courtyard to provide ADA access to existing gymnasium and auditorium. (Emphasis, by bolding, supplied in original). Addendum No. 6 "[r]evised the [RFQ's] Submittal Due Date to read 'No later than 2:00 p.m. on September 3, 2008.'" As the parties stipulated in Admitted Fact 20,"[a]fter [the] issuance of Addendum No. 7 to the RFQ, the scope of the [FHS Project] component of the RFQ was described as follows [with strike-throughs and underlining indicating, respectively, post-issuance deletions and additions]: Concurrent replacement in two phases to include: Phase I – Construct a 3-story Administration Classroom Building of 68,940 GSF to include Administration, 3 general classroom[s], 5 resource rooms, 4 Science Labs and related spaces, a 4-classroom ESE Suite, 1 Business Technology Lab, 1 Family and Consumer Science (ProStart) Lab, 1 Health Occupations Lab, [1 Pre-Law Public Service Education Lab], Custodial spaces, Textbook Storage and Student, Staff and Public Restrooms. Demolish the existing track and athletic field and relocate existing baseball field. Demolish Buildings 1, 2, 3, 4, 11, 12, 13 and 14. Phase II – Construct Parent drop off & pick up area and a 3-story parking structure including required road access work for Staff Parking and /Visitor Parking[.] Construct Regional Athletic Facility[.] Renovate building 8 into Science Labs[.] Demolish existing tennis courts & replace with 6 tennis courts construct five (5) tennis courts. Demolish Swimming Pool. Renovate existing courtyard to provide ADA access to existing gymnasium and auditorium. Construct basketball courts. Resurface Student Parking." As the parties stipulated in Admitted Facts 10 and 11, on August 26, 2008, the date that Respondent issued its final addendum to the RFQ (Addendum No. 7), it also issued a Revised Public Announcement publicizing the issuance of the RFQ (as revised by the seven addenda). The Revised Public Announcement read, in pertinent part, as follows: In order to supplement the expertise of the Facilities and Construction Management Department, the Superintendent of Schools, pursuant to Florida Statutes, announces that The School Board of Broward County, Florida, is in need of Construction Management Services, related to new construction and renovations of educational facilities. Pursuant to this request for qualifications, The Board will consider contracts with one of more proposers to provide these services. Services under this contract include, but are not limited to the following items and shall be in accordance with SREF [State Requirements for Educational Facilities] 1999 Chapter 4: Bid and award activities including managing bidder listing, addendum, bidding, proposals, schedule of values, contracts, guaranteed maximum price, value engineering, and bonds. Construction activities including managing meetings, contract administration, monitoring procedures, contract records, inspections, non-conformances, owner- supplied equipment, testing, project accounting, and construction services. Warranty activities including managing claims and periodic inspections. Provide other basic services as required. Refer to the Request for Qualifications for more detailed project scopes. * * * RFQ No. 2008-30-FC Project Nos. 0951 27 01/P000687 Fort Lauderdale High School (proposed construction budget $29,150,340): Phase replacement in 2 phases to include: Phase I - Demolish selected buildings, tennis courts, swimming pool, track and athletic field. Construct a 3-story Administration Classroom Buildings[2] of 68,949 GSF; parent drop off/pick-up area and visitor parking; 5 tennis courts. Relocate existing baseball field. Phase II - Demolish selected building. Construct a 3-story parking structure including required access road work; Regional Athletic Facility. Renovate existing courtyard for ADA access to Gym and Auditorium. Renovate Building 8 into Science Labs. * * * Award: Project will be awarded by Facility. Proposed Construction Budget: Includes all costs inclusive of the Construction Manager's fees, Cost of Work, and any other costs related to construction. Minimum Selection Criteria: Will include the following as a minimum, (refer to document RFQ, Article X Submittal Requirements for expanded list of selection criteria): The company's history, structure, personnel, licenses, and experience. Related projects similar in scope or amount completed by the company, including name of client or its representative. Financial information such as balance sheet and statement of operations and bonding capacity. Project management, scheduling and cost control systems the company uses for similar projects. Proposed minority business involvement in the project. . . . Cost control, value engineering techniques and constructability reviews. Description of litigation, major disputes, contract defaults and liens in the last five (5) years. Interview. Confirmation of references. Consideration of the volume of work previously awarded to each firm, 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 qualified firms. * * * The completed RFQ response must be delivered . . . . NO LATER THAN 2:00 PM SEPTEMBER 3, 2008 * * * Qualifications Selection Evaluation Committee (QSEC): After submission, proposers will be evaluated by the Qualification Selection Evaluation Committee (QSEC) based upon the above minimum criteria. The QSEC will select no less than three (3) proposers, ranked in order of tabulated score. The QSEC will recommend the finalist(s) for award of contracts to Construction Managers to the Superintendent. The Superintendent shall either recommend award of contract(s) to the finalist(s) selected by the QSEC or recommend rejection of all proposals to the Board. After the Board approves the recommendations of the QSEC the Board will authorize the Superintendent, or designee, to negotiate a contract for services for fees to provide direct management of the Construction Management at Risk Contract. Recommendations by the Qualification Selection Evaluation Committee do not guarantee a contract will be awarded by the Board. Award of a contract does not guarantee that work will be issued. Fees will be negotiated in accordance with Board Policy 7003 and Section 287.055, F.S. Article I of the RFQ (as revised) listed "General Requirements" that "proposers [had to] meet" "[i]n order to be considered." As the parties stipulated in Admitted Fact 21, Article I.D. of the RFQ (as revised) provided, in pertinent part, as follows: All proposers must be prequalified according to 1013.46 F.S., SREF 4.1(8), and Board Policy 7003 at the time of submittal due date to this RFQ. Article I.H. of the RFQ (as revised) provided as follows: The School Board of Broward County, Florida reserves the right to reject any or all responses, to waive technicalities, or to accept the proposal that, in its sole judgment, best serves the interest of The School Board of Broward County, Florida. Article II of the RFQ (as revised) described the "Selection Process." As the parties stipulated in Admitted Fact 22, Article of the RFQ (as revised) "was entitled 'Proposal Review by Staff' and stated as follows": Facilities and Construction Management Division staff will conduct a review of the proposer's submittal to determine whether the proposer meets the terms of this RFQ, requirements of the Florida Statutes, State Requirements for Educational Facilities regulations, Florida Building Code, and any other code, statute, or standard applicable at the time of response. Facilities and Construction Management Staff will provide information to the QSEC Members showing payments made by the district to the proposing firms over the past three (3) years. Non-compliant proposals will be recommended to the committee for rejection. As the parties stipulated in Admitted Fact 23, Article of the RFQ (as revised) "was entitled 'Shortlist Selection' and stated as follows": The QSEC Members will assign points to each proposer, for each facility, based upon the Selection Criteria below and attached Selection Criteria Score Sheet in the shortlist evaluation process. Each QSEC Member shall assign points for each proposer according to the selection criteria and rank them according to their scores. The proposer receiving the most points by a QSEC Member will be considered the first choice of that QSEC Member. The firm that receives the most first choice votes from the committee will be the top-ranked proposer. The second-ranked proposer will be the proposer that receives the most points, other than the proposer who was already selected as the top-ranked, and so on. In the event of a tie a voice vote will be taken until the tie is broken. If the voice vote is not unanimous, then a roll-call vote will be taken. The selection process will establish a "shortlist" for each facility/project of not less than three (3) proposers and no more than five (5) proposers submitting proposals. Shortlist selection will be done by each facility. Article II.E. of the RFQ (as revised) called for "[p]resentations" to be made to the QSEC by the shortlisted proposers. As the parties stipulated in Admitted Fact 24, Article II.G. of the RFQ (as revised) "was entitled 'Final Selection' and stated as follows": The QSEC will interview and rank the shortlisted firms. The QSEC will assign points to each proposer, for each facility, utilizing the Selection Criteria and point schedule included with the Selection Criteria Score Sheet to finalize the selection. Note, M/WBE staff will provide scores for M/WBE categories. However, such scores are recommendations by M/WBE staff and may be adjusted by individual QSEC Members. Each QSEC Member shall assign points for each proposer according to the selection criteria and rank them according to their scores for each project/facility. The proposer receiving the most points by a QSEC Member will be considered the first choice of that QSEC Member. The proposer that receives the most first choice votes from the committee will be the top-ranked proposer. The second-ranked proposer, will be the proposer that receives the most points, other than the proposer who was selected as the top-ranked proposer, and so on. In the event of a tie a voice vote will be taken until the tie is broken. If the voice vote is not unanimous, then a roll- call vote will be taken. The QSEC will recommend the finalist(s) for award of contract to Construction Manager to the Superintendent. The Superintendent shall either recommend award of contract(s) to the finalist(s) selected by the QSEC or recommend rejection of all proposals to the Board. After the Board approves the recommendations of the QSEC the Board will authorize the Superintendent, or designee, to negotiate a contract with the top-ranked firm according to Section 287.055, F.S. The Board shall have final approval of such recommendations. Final selection will be done by each facility. Article II.H. of the RFQ (as revised) contained the "Minimum Selection Criteria." This provision read as follows: Minimum Selection Criteria: Will include the following as a minimum, (refer to this document Article XI Submittal Requirements for expanded list of selection criteria): The company's history, structure, personnel, licenses, and experience. Related projects similar in scope or amount completed by the company, including name of client or its representative. Financial information such as balance sheet and statement of operations and bonding capacity. Project management, scheduling and cost control systems the company uses for similar projects. Proposed minority business involvement in the project (refer to this document Article I, J for requirements). Cost control, value engineering techniques and constructability reviews. Description of litigation, major disputes, contract defaults and liens in the last five (5) years. Interview. Confirmation of references. Consideration of the volume of work previously awarded to each firm, with the object of effecting an equitable distribution of contracts among qualified firms, provided such distribution does not violate the principle of section of the most qualified firms. As the parties stipulated in Admitted Fact 25, Article III of the RFQ (as revised) "[was] entitled 'Competitive Negotiations' and state[d] as follows": After the QSEC ranks the firms, recommends the finalist(s) to the Superintendent, and the Superintendent recommends the finalist(s) to the Board[,] [t]he Superintendent, or designee will negotiate a contract for services for fees to provide direct management cost of the CM and Guaranteed Maximum Price (GMP). The CM contract shall maintain an "open book" project accounting process, with any savings returned to the Board. Should the negotiations not result in a contract with the finalist at a price determined by both parties to be customary, fair, competitive, and reasonable, negotiations with that firm shall be formally terminated. The Superintendent, or designee, shall undertake negotiation with the second most qualified firm and thereafter, if necessary, with the third firm. Should the Board be unable to negotiate a satisfactory contract with any of the selected firms, additional firms will be selected in accordance with the above- described procedure. Negotiation should continue in accordance with Section 287.055, F.S., or until the Board determines not to proceed and to re-advertise and repeat the process. Article IV of the RFQ (as revised) addressed the "Scope of Services." It simply provided as follows: "Refer to attached Agreement Between Owner and Construction Manager for requirements." Article 3 of the "attached Agreement Between Owner and Construction Manager" (Sample Contract) enumerated the "Construction Manager's Services." Those services to be performed by the hired construction manager during the "Pre-Design Phase" were described in Article 3.2 of the Sample Contract as follows: The Construction Manager shall review project requirements, educational specifications, on and off-site development, survey requirements, preliminary budget, and make value engineering and constructability recommendations for revisions to the Owner and Project Consultant in the form of a written report prior to the final payment for this phase. The Construction Manager shall, subject to Owner's approval and compliance with existing Owner completion schedule, establish a preliminary master project schedule identifying all phases, Critical Path elements, responsibilities of the Owner, Project Consultant, outside agencies, third parties and any other impacts which would affect project schedule and progress and update them monthly throughout the duration of the contract. When the project includes renovation or expansion of an existing Facility, the Construction Manager will assist the Construction Team in preparing an analysis package outlining the condition of the existing Facility, existing structure, existing finishes, and existing equipment, code deficiencies, energy use, and life expectancy of other building systems by providing constructability, value engineering, and cost estimates recommendations. The package should contain the Construction Manager's recommendations, cost estimates and preliminary schedules. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for this phase. The Construction Manager shall prepare detailed cost estimates and recommendations to Owner and Project Consultant at S.D. (Schematic Design), D.D. (Design Development), C.D. (50% and 100% Construction Documents) phases of the project. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for each phase. The Construction Manager shall provide project delivery options for the design, bid, and bid packaging of the project for efficient scheduling, cost control and financial resource management. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for this phase. The Construction Manager shall utilize information and reporting systems to provide the Owner with monthly reports containing accurate and current cost controls, work status, including but not limited to Work narrative, Work completed/anticipated, short term and long term schedules, estimated expenditures, and project accounting systems of the project at all times. Such information shall be provided to the Owner and Project Consultant in the form of a written report, prior to final payment for this phase. The Construction Manager shall prepare a report with the Project Team's participation which shall describe, as a minimum, the Work plan, job responsibilities, and written procedures for reports, meetings, inspections, changes to the project, building systems, and delivery analysis and other relevant matters. Such information shall be provided to the Owner and Project Consultant prior to final payment for this phase. The Construction Manager shall provide market analysis and motivation for subcontractor interest and recommendations for minority business participation. This shall include analysis of the Construction Manager's historical data for subcontracting, communication with contractor and trade organizations requesting participation, review of the Owner's M/WBE data, advertising, outreach programs, mailings to all prospective bidders identified by these actions, and reporting of all of the for[e]going to the Owner. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for this phase. The Construction Manager's personnel to be assigned during this phase and their duties and responsibilities to this project and the duration of their assignments are shown on Exhibit D to the General Conditions. All required reports and documentation shall be submitted and approved by the Owner as pre-requisite to progress payments to the Construction Manager by the Owner during this phase. Those services to be performed by the hired construction manager during the "Design Phase" were described in Article 3.3 of the Sample Contract as follows: The Construction Manager will be required to attend all project related meetings and include a summary of the meeting of its monthly report to the Owner as specified in Document 01310. The Construction Manager will periodically review to the best of their abilities all Contract documents for constructability and compliance with applicable laws, rules, codes, design standards, and ordinances. Such information shall be provided to the Owner and Project Consultant in the form of a written report in the format as noted herein prior to final payment for this phase (Refer to exhibits G and H). The Construction Manager will be required to work with and coordinate [its] activities with any additional consultants, or testing labs and others that Owner provides for the project and report all findings as specified in Document 01310. The Construction Manager shall review all Contract documents for the new and existing buildings and/or building sites and provide value engineering recommendations to minimize the Owner's capital outlay and maximize the Owner's operational resources. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for this phase. All such recommendations shall be acknowledged and incorporated into the construction documents by the Project Consultant unless otherwise authorized by the Owner in writing. The Construction Manager will review construction documents and the new and existing buildings conditions and/or building site to reduce to the best of [its] abilities conflicts, errors and omissions and shall coordinate with the Project Consultant in order to eliminate change orders due to errors, omissions and unforeseen conditions. The Construction Manager shall periodically update the master project schedule and make recommendations for recovery of lost time. Such information shall be provided to the Owner and Project Consultant in the form of a written report prior to final payment for this phase. The Construction Manager will coordinate with the Project Consultant and provide to the Project Construction Team permitting applications and requirements for the projects. The Construction Manager will periodically update cost estimates and make recommendations to keep the project within the FLCC. AT COMPLETION OF THE CONSTRUCTION MANAGER'S REVIEW OF THE PLANS AND SPECIFICATIONS, EXCEPT ONLY AS TO SPECIFIC MATTERS AS MAY BE IDENTIFIED BY APPROPRIATE WRITTEN COMMENTS PURSUANT TO THIS SECTION, CONSTRUCTION MANAGER SHALL WARRANT, WITHOUT ASSUMING THE PROJECT CONSULTANT'S RESPONSIBILITES, THAT THE PLANS AND SPECIFICATIONS ARE CONSISTENT, PRACTICAL, FEASIBLE AND CONSTRUCTIBLE. CONSTRUCTION MANAGER SHALL WARRANT THAT THE WORK DESCRIBED IN THE PLANS AND SPECIFICATIONS FOR THE VARIOUS BIDDING PACKAGES IS CONSTRUCTIBLE WITHIN THE SCHEDULED CONSTRUCTION TIME. DISCLAIMER OF WARRANTY: THE OWNER DISCLAIMS ANY WARRANTY THAT THE PLANS AND SPECIFICATIONS FOR THE PROJECT ARE ACCURATE, PRACTICAL, CONSISTENT OR CONSTRUCTIBLE OR WITHOUT DEFECT. .10. The Owner may select certain projects for expediting using fast-track construction. When this option is exercised, in writing, by SBBC, it shall be implemented in accordance with the following: A. Design/Construction documents as noted herein shall be submitted by the Consultant for review and approval by SBBC (including Building Code review and Building permit issuance for 100% completion documents), the Construction Manager and others, as applicable, having jurisdiction: Foundation/Structural/LCCA/Site and Off- Site Package-100% Documents A separate 50% completion progress set (for information only) of Building Finish Package drawings shall also be submitted which shall show all of the major characteristics of the project utilities and service, detailed site and floor plans, elevations, section, schedules, etc. Construction may begin after approvals and building permit is obtained for above package. Building Finish Package-100% Documents As mutually agreed by the parties in writing. .11 Guaranteed Maximum Price (GMP): Upon completion of the design phase [construction documents 100% complete] and prior to the bidding and award phase, the Construction Manager shall present to the Owner the GMP for the Owner[']s review and approval in accordance with Article 6 of this Agreement.[3] Those services to be performed by the hired construction manager during the "Bidding and Award Phase" were described in Article 3.4 of the Sample Contract as follows: At this stage the Construction Manager assumes the leadership responsibility for the project team. Upon obtaining all necessary approvals of the Construction Documents including a Building Permit as required by FBC and Owner approval of the latest Statement of Probable Construction Cost, the Construction Manager shall obtain bids and commence awarding construction contracts. The Owner will have the drawings and specifications printed for bidding purposes, either through its open Agreements with printing firms or as a reimbursable service through the Project Consultant, or as set forth in Article 26.03.08 in the General Conditions of this CM Agreement. The Construction Manager shall review the Owner[']s records of pre-qualified contractors, including Minority/Women Business Enterprises (M/WBE) and prepare a list of those recommended for work pursuant to this contract. The Owner reserves the right to reject any or all subcontractors recommended for approval. The Construction Manager shall maintain a list of all potential bidders, including M/WBEs and those who are approved as pre-qualified. The Construction Manager shall prepare and issue the bid packages to cover the scope of the Work for this contract. The Construction Manager, in coordination with the Owner, shall schedule pre-bid conferences as required and issue a written summary of the conference(s). Solicitation of Bids: .1 The Construction Manager shall enter into Contracts with the firm who submits the lowest, responsive and responsible bid. The Construction Manager shall advertise according to SBBC policies as amended from time to time for bids on Documents 00101 at least three (3) times, seven (7) days apart, and with the third (3rd) advertisement prior to a pre-bid conference if applicable and at least seven (7) days prior to the bid opening. Written proposals based on drawings and/or specifications shall be submitted to the Construction Manager. The written proposals shall be opened at the usual location for bid opening. A tabulation of the results shall be furnished by Construction Manager to the Owner. .6 The Construction Manager and Owner shall open at the Construction Manager location and evaluate at least three bids, if possible, for each portion of the Work solicited. The Construction Manager shall also make recommendations to the Owner for award to the lowest, responsive, and responsible bidder. A recommendation for award to other than the lowest bidder shall be justified in writing. Those services to be performed by the hired construction manager during the "Construction Phase" were described in Article 3.5 of the Sample Contract as follows: The Construction Manager shall fully comply with the provision[s] of the Owner's Project Manual, including but not limited to Division 0 and 1, and the attached General Conditions of this contract. In the event of a conflict between this Agreement and such documents the agreement shall control. The Construction Manager shall provide the minimum staffing level as set forth in Exhibit C-F for this project. The Construction Manager shall maintain and prepare monthly updates for all project schedules, including Critical Path elements, provide written progress reports, describe problems and corrective action plan(s) and conduct briefings as required by the Owner. Such information shall be provided to the Owner and Project Consultant in the form of a written report with progress payments requests. The Construction Manager may self perform certain construction work when it benefits the Owner, results in cost and time savings, and is pre-approved by the Owner in writing. The Construction Manager shall coordinate project close-out, operation, and transition to occupancy. The Construction Manager shall coordinate with the Project Consultant to provide complete project records including project manual and electronic Computer Assisted Drafting (CAD) drawings corrected to show all construction changes, additions, and deletions. (Construction Manager shall note all changes on the as-builts for the Project Consultant to reflect on the drawings and CAD disc.) The Construction Manager shall coordinate with the Owner's staff to prepare the Certificate of Final Inspection. The Construction Manager shall obtain and review all warranties, operation and maintenance manuals and other such documents, for completeness, have them corrected if necessary and submit them to the owner. The Construction Manager shall complete all punch list items generated by the Building Code Inspector (BCI), the Owner, the Project Consultant and any others having jurisdiction over the project during its inspections. Those services to be performed by the hired construction manager during the "Warranty Phase" were described in Article 3.6 of the Sample Contract as follows: The Construction Manager shall provide a minimum one (1) year warranty and shall coordinate and supervise the completion of warranty Work during the warranty period. Construction Manager shall participate with the Owner in conducting of warranty inspections held on the sixth (6th) and eleventh (11th) months after occupancy. Construction Manager shall deliver as-built drawings, warranties and guaranties to the Owner. Where any Work is performed by the Construction Manager's own forces or by subcontractors under contract with the Construction Manager, the Construction Manager shall warrant that all materials and equipment included in such work will be new except where indicated otherwise in Contract Documents, and that such Work will be free from improper workmanship and defective materials and in conformance with the Drawings and specifications. With respect to the same Work, the Construction Manager further agrees to correct all work found by the Owner to be defective in material and workmanship and not in conformance with the Drawings and Specifications for a period of one year from the Date of Owner Occupancy of the Project or a designated portion thereof or for such longer periods of time as may be set forth with respect to specific warranties contained in the trade sections of the Specifications or by Florida Law. The Construction Manager shall collect and deliver to the Owner any specific written warranties given by others as required by the Contract Documents. The Construction Manager shall provide a Warranty Summary Report at the end of the 6- month warranty period and 11-month warranty period. This report shall provide at a minimum: Description of each warranty item during the period. Date item reported to Construction Manager. Date item corrected. If more than one trip required, document each. Description of action taken to cure warranty item. Obtain signature of school principal or designee acknowledging warranty items have been completed. Other pertinent information, if applicable. Article V of the RFQ (as revised) provided the following information with respect to "Fees and Pricing": Successful proposers shall negotiate a fee for providing construction management services during the design phase and subsequently shall negotiate a GMP for construction services during the bidding and construction phase. Architectural/Engineering firms will develop Contract documents under separate contract with the Board. As the parties stipulated in Admitted Fact 26, Article VII of the RFQ (as revised) "[was] entitled 'Board's Right to Reject' and state[d] in part as follows": The Board reserves the right to reject any and all proposals and readvertise the project(s) at any time prior to Board approval of the recommended proposer(s) and the negotiated agreement(s). All costs incurred in the preparation of the Proposal and participation in this RFQ process shall be borne by the proposers. Proposals submitted in response to this RFQ shall become property of the Board and considered public documents under applicable Florida law. The District reserves the right to accept or reject any and all submittals, or to waive any technicalities or formalities when and if it is in the best interests of the District. Rejection: A submittal shall be rejected for failure to comply with one or more of the following requirements: The proposer is not licensed or registered in the State of Florida to provide the proposed services. The submittal shall be rejected if not received by The School Board of Broward County, Florida by the specified deadline. Not Applicable. Article XI of the RFQ (as revised) discussed "Submittal Requirements" and contained the following provisions concerning "Related Projects Similar in Scope (to this RFQ)" and "References": Related Projects Similar in Scope (to this RFQ): List educational projects of related scope and size. Provide name and location of project, project owner, project owner name, address phone and contact person, project cost, current project status, firm[']s key personnel assigned to the project. . . . L. References: Provide a list of all projects, clearly stating name of project, using Construction Management at Risk, completed or in progress within the last five (5) years from due date of this RFQ. If Proposer[']s firm also has offices outside the tri-county area (meaning Broward, Miami-Dade, or Palm Beach), then at a minimum provide references for all Construction Management at Risk projects in the tri-county area. List projects that are 75 percent or greater of the construction budget statement in the Public Announcement for each listed project. Provide the address, telephone numbers and contact person(s) listed as references for each project. . . . As the parties stipulated in Admitted Fact 27, "[o]n or about September 3, 2008, [Respondent] received proposed qualifications to provide construction management at risk services for [the FHS Project] from 13 vendors including Petitioner." Among the other "vendors" submitting "proposed qualifications" were Elkins Constructors, Inc., the Morganti Group, Inc., and W. G. Mills, Inc. As the parties stipulated in Admitted Fact 28, "[i]n accordance with the terms and conditions of the RFQ [as revised] and [Respondent's] governing statutes, rules and policies, Respondent's Qualifications Selection and Evaluation Committee ('QSEC') recommended the rejection of certain proposers for their failure to comply with [Respondent's] pre-qualification requirements or limits." There were three such "proposers": Elkins Constructors, Inc.; the Morganti Group, Inc.; and W. G. Mills, Inc. At the time of the "submittal due date to this RFQ [as revised]," neither Elkins Constructors, nor the Morganti Group, was "prequalified according to 1013.46 F.S., SREF 4.1(8), and Board Policy 7003" for any project. W. G. Mills, on the other hand, was "prequalified" for certain projects, but only within the following limits: a "[p]er [p]roject [l]imit [of] $25,000,000 [and an] [a]ggregate [l]imit [of] $250,000,000." The "advertised Proposed Construction Budget" of the FHS Project was $29,150,340, which was more than W. G. Mills' "[p]er [p]roject [l]imit [of] $25,000,000." As of the date "proposed qualifications" were due, there were 11 prequalified firms, including W. G. Mills, who had a "[p]er [p]roject [l]imit" of between $17,000,000 and $26,000,000. These firms were not eligible to be awarded the contract for the FHS Project because the project's "advertised Proposed Construction Budget" was in excess of their "[p]er [p]roject [l]imit." W. G. Mills was the only one of these 11 prequalified firms to respond to the RFQ (as revised). As the parties stipulated in Admitted Fact 29, "[i]n accordance with the terms and conditions of the RFQ [as revised] and [Respondent's] governing statutes, rules and policies, [the] QSEC next evaluated and short-listed the remaining proposers. It thereafter received presentations from the short-listed proposers and, after scoring those short-listed proposers, recommended Petitioner . . . to [Respondent] as the proposer with whom to negotiate a contract for services for fees to provide direct management cost of the construction manager and the project's guaranteed maximum price ('GMP')." As the parties stipulated in Admitted Fact 30, "[o]n October 7, 2008, [Respondent] approved [the] QSEC's selection of Petitioner . . . as the vendor with whom negotiations would be had for [the] Fort Lauderdale High School component of the RFQ [as revised] and 'authorized negotiations for Construction Management at Risk Services.' The scope of Construction Management at Risk services was [as noted above] included within the RFQ [as revised]. The summary explanation and background portion of the agenda item to authorize negotiations stated that the 'Superintendent's designees will negotiate the selected Constriction Management at Risk Services fees for the projects and recommend award of contracts at a future School Board Meeting.'" As the parties stated in the "Statement of the Controversy" section of their Joint Pre-Hearing Stipulation, "[n]egotiations between [Respondent] and [Petitioner] occurred between October 2008 [following Respondent's approval of the QSEC's selection of Petitioner] and December 2009." In December 2009, Cubellis, the architectural firm working on the FHS Project for Respondent, was "experiencing some financial difficulties" and there was uncertainty as to whether it would "be able to continue [on] the project." As a result, negotiations between Respondent and Petitioner were halted. Eventually, Cubellis "assigned [its] contract [with Respondent] to somebody else" (specifically, Manuel Synalovski Associates, LLC), but negotiations between Respondent and Petitioner never resumed. Petitioner's last written contract proposal was dated December 10, 2009. It was based on a proposed construction budget of $18,297,367 and provided for the following "Negotiated Contract Terms": Construction Manager Fees: Pre-Design Not Applicable Design Not Applicable Bidding & Award $37,685 Construction Phase Fee $1,172,370 Warranty $35,000 Overhead $289,200 Profit $185,385 General Conditions $659,846 Total $2,379,489 Above Fees based on scope of work issued "Project Scope" document dated 11/5/2009 per 11/9/2009 letter from M. Decker. CM Performance and Payment Bonds and GL Insurance are included based on budgeted contract amount of $18,297,367. Builders Risk, Contingency, and Subcontractor insurance costs are not included in the fees and will be shown in the schedule of values as separate line items as a cost of work. Should the cost of work increase Bonds and GL insurance fees are to be adjusted at insurance providers' invoiced amount. Overhead, profit and bond allowances for Change Orders: 10% Substantial Completion: 570 Final Completion in General Conditions 25.01.02: 600 Construction Phase Fee and General Conditions in 25.01.02: $3,050 per Consecutive Calendar Day Liquidation Damages for Substantial Completion: $1,000 per Consecutive Calendar Day Liquidation Damages for Final Completion: $600 per Consecutive Calendar Day This contract proposal was made following a December 8, 2009, negotiation session at which Denis Herrmann, Respondent's Director of Design and Construction Contracts, had stated that he had negotiated a construction management at risk contract for another project the previous day where the "Construction Manager Fees" were 13.8 percent of that particular project's proposed construction budget. Mr. Herrmann had relayed this information to Petitioner's representatives at the meeting to give them "a flavor for the range [Respondent was] talking about, not to give them a [specific] number [or percentage] that would be acceptable." The "Construction Manager Fees" proposed by Petitioner in its December 10, 2009, offer were slightly less than 13.8 percent of the $18,297,367 proposed construction budget (but they did not cover any "Pre-Design"-related or "Design"-related work). While Respondent has never, in writing, specifically rejected Petitioner's December 10, 2009, offer, neither has ever formally accepted it. As the parties stipulated in Admitted Facts 45 and 48, respectively, Respondent's "Superintendent of Schools has not placed an item on [the School Board] agenda recommending that [Respondent] enter into a contract with [Petitioner] concerning the RFQ [as revised]," and "[Respondent] has not approved a contract with [Petitioner] concerning [the] RFQ [as revised]." It has been two years since "[Respondent] approved [the] QSEC's selection of Petitioner . . . as the vendor with whom negotiations would be had." Significant changes impacting the FHS Project have occurred over that period of time. Respondent now finds itself in the midst of an "unprecedented budget crisis," making it especially imperative that it "take every [possible] step to maximize the purchasing power of the public's dollars." A precipitous decline in revenue available for capital projects (due, in large measure, to a decline in property values, coupled with a reduction in the capital outlay millage rate) has required Respondent to eliminate or scale back various planned projects. The FHS Project is among the projects that have been scaled back. As the parties stipulated in Admitted Fact 31, "[p]rior to, during and subsequent to its negotiations with [Petitioner], [Respondent] determined on several occasions that the project scope of the [FHS Project] needed to be further adjusted, ultimately resulting [in] the following project scope [with strike-throughs and underlining indicating, respectively, deletions and additions]": Concurrent Replacement in two phases to include: Demolish existing swimming pool (buildings 15 and 16). Demolish existing tennis courts and replace with 6 tennis courts. Demolish Buildings 1, 2, 3, 4, 11, 12, 13, and 14. Construct basketball courts. Construct Regional Athletic Facility. Construct (2) 3-story buildings (1 – Administration & 1 - Classroom) of approximately 68,940 GSF combined to include Administration, 3 general classrooms, 5 resource rooms, 4 science labs and related spaces, 4-classroom ESE suites, 1 Business Technology lab, 1 Family and Consumer Science (ProStart) lab, 1 Health Occupations Lab, 1 Pre-Law Public Service Education Lab, Custodial spaces, Textbook Storage, and Student, Staff and Public Restrooms. Remodel Renovate existing Science Building (building 8). Construct Parent Drop Off and Pick Up area and Staff/Visitor Parking. Resurface Student Parking. Construct New Student parking area on the West side of the site to increase parking capacity by 92 spaces. Modify existing temporary bus loop to meet SREF code and ADA standards; modifications will include barricades and covered sidewalk. Redesign courtyard to meet current ADA standards.' As the parties further stipulated in Admitted Fact 31, "[t]he project scope was revised five (5) times between October 7, 2008 and December 2, 2009[,] [and Petitioner] was notified of the changes in scope and acknowledged the same." "[R]evis[ions]" have also been made to the project's budget. Respondent's "5-Year Plan" allocates funding for all costs (including, but not limited to, construction costs4) associated with each of Respondent's funded capital projects. As the parties stipulated in Admitted Fact 32, "[Respondent] adopts and revises its 5-Year Capital Improvement Plan ('5-Year Plan') each year." As the parties further stipulated in Admitted Fact 33: [Respondent's] 5-Year Plan adopted for Fort Lauderdale High School for Fiscal Years 2009-10 to 2013-14 eliminated the $39,491,259 previously budgeted as "Capacity Additions" . . . . Instead, the 2009-10 to 2013-14 Five Year Plan provided $21,050,000 for Capacity Additions . . . . Respondent's current "5-Year Plan" (for the Fiscal Years 2010- 2011 to 2014-2015), which was adopted on September 7, 2010, allocates $22,366,085 to the FHS Project (as scaled back). The dour economic conditions responsible (in part) for the drop in tax revenues available to fund Respondent's capital projects have also led to increased competition in the construction industry and a resultant decline in construction prices. This increased competition is particularly pronounced "in the procurement area of hard bidding." During "the peak of the construction boom," before the downturn in the economy, it was not atypical for Respondent, when it "hard bid" a construction project, to get just one or even no bids in response to the solicitation. Now, Respondent "expect[s] to see between half a dozen [and] a dozen or more bidders." Moreover, recently, winning bids on "hard bid" projects have been, on average, well below these projects' advertised proposed construction budgets. Respondent has not experienced the same overall cost-savings results when it has used the "Construction Management at Risk delivery method." Given the market conditions that exist today, Respondent estimates that the construction costs for the FHS Project (as scaled back) would be no more than $16,950,000 and possibly as little as approximately $13,000,000 (if a "hard bid" were used). These amounts are considerably less than the "Proposed Construction Budget of $29,150,340" that had originally been "advertised." There are prequalified firms (including W. G. Mills) which were not eligible to be awarded the contract under the RFQ (as revised) because their "[p]er [p]roject [l]imit" was less than $29,150,340, but which would now be able to bid on a scaled-back FHS Project were it to be readvertised (with a proposed construction budget of $16,950,000). Another (and perhaps the most significant) difference between the circumstances existing at present and those that existed two years ago (vis-à-vis the FHS Project) is that the design of the project (as scaled back) has advanced to the point that, with a few revisions,5 the construction documents for the project will be 100 percent complete.6 As a result, Respondent no longer has a need for most, if not virtually all, of the "pre-design" and "design" services, described in Articles 3.2 and 3.3 of the Sample Contract, that, back in 2008, it had wanted a construction manager to perform. In April 2010, Respondent's Office of the Chief Auditor issued a report (April 2010 Audit Report) critical of Respondent's use of the "Construction Management at Risk delivery method" in connection with 14 projects "which were included in the Construction Management at Risk Kitchen/Cafeteria RFQ No. 2006-12-FC." The report read, in pertinent part, as follows: The projects included in RFQ No 2006-12-FC were sufficiently completed by the Architect/Engineer firm(s) prior to being advertised as CM at Risk construction projects. The inability [of] any CM firm to provide "professional services" and scheduling of both design and construction phases represents a deviation from the intent of Florida Statutes, SREF and the School Board's CM at Risk contract.[7] In nearly every executed CM at Risk agreement in the Kitchen/Cafeteria program, the Pre- Design and Design phase responsibilities of the CM were stricken from the contract. That is a further representation that the input required by a prospective CM to qualify for the committee selection process was not, nor was it intended to be provided. F.S. 1013.45(1)(c) also states that the use of the CM at Risk delivery method " . . . shall not unfairly penalize an entity that has relevant experience in the delivery of construction programs of similar size and complexity by methods of delivery other than program management." All of the projects in the Kitchen/Cafeteria program were originally intended to be "hard-bid" but were changed to the CM at Risk delivery method. One project was removed from the group prior to the due date of submittals for RFQ No. 2006-12-FC. That hard bid project, Margate ES, cost approximately $5.6 million, including nearly $466,226 in change orders, which was approximately $3.3 million less, on average, than the fourteen (14) projects that remained in RFQ No. 2006-12- FC. Due to the change in delivery method, general contracting firms could have been "unfairly penalized" by the decision to use the CM at Risk delivery method, as many local general contractors have the relevant experience in the delivery of construction programs of similar size and complexity by methods other than the CM at Risk delivery method.
Recommendation We recommend that Facilities & Construction Management discontinue developing construction procurement packages (i.e. RFQ and RFP) for award of CM at Risk agreements when construction management services requested are associated with reused, prototypical or otherwise sufficiently developed construction documents. Kitchen/Cafeteria program data indicates that the benefits associated with the CM at Risk delivery method were not realized using prototypical designs, as the program resulted in over $24 million in avoidable fees while circumventing applicable laws and regulations. On May 10, 2010, Mr. Herrmann sent a letter to Respondent's General Counsel requesting, in light of the April 2010 Audit Report, a "legal opinion related to the award of a Construction Manager at Risk Agreement (CM) to [Petitioner] and whether such an award would comply with Chapter 1013.45(1)(c), S. and State Requirements for Educational Facilities 1999 (SREF)," given that the FHS Project (as scaled back) was then "in the design phase and Phase III 100% Construction Documents [were] being prepared." The concluding paragraph of the letter read as follows: In this project, The Weitz Company has been selected by the board and we intend to recommend award of a contract within several months. An award of a CM agreement in this case would not violate the specific audit recommendation and we believe such an award does not violate statute or SREF. Please advise whether you concur. Mr. Herrmann has since changed his opinion. He now believes (reasonably so, in the undersigned's view) that "award of a CM agreement" in the instant case would be inconsistent with the "audit recommendation" inasmuch as the FHS Project (as scaled back) now has "sufficiently developed construction documents." On May 18, 2010, Mr. Herrmann sent another letter to Respondent's General Counsel. This letter read as follows: This is to provide you with additional information relating to a request for a legal opinion regarding the award of a Construction Manager at Risk Agreement (CM) to The Weitz Company. Please also refer to the attached memos dated 10/14/09, 11/16/09 and 5/10/10. In summary, we have requested opinions based on the following: Whether such an award would comply with applicable statutes, SREF, and board policy given the extent of the changes to the scope and budget. Whether such an award would comply with Chapter 1013.45(1)(c), F.S. and State Requirements for Educational Facilities 1999 (SREF). We have recently revised the construction cost estimate as a result of current market conditions, and the project consultant, Manuel Synalovski [Associates], LLC agrees with the revised estimate. The change in the cost estimate is as follows: In the RFQ: $29,150,340 October 2009 (Change in scope): $21,770,000 November 2009 (Market conditions): $18,297,367 May 2010 (Market conditions) $16,950,000 Please advise whether we should proceed with the award or reject all bids. Respondent's General Counsel responded to neither of these May 2010, letters from Mr. Herrmann. As the parties stipulated in Admitted Fact 34, "[o]n June 15, 2010, [Respondent] approved Item J-15 during its June 15, 2010, Regular Meeting." The "Requested Action" and "Summary Explanation and Background" section of the Agenda Request Form for this agenda item (J-15) provided as follows: REQUESTED ACTION Approve the change in the delivery method from Construction Management at Risk to Design/Bid/Build and the First Amendment to the Professional Services Agreement with Manuel Synalovski Associates, LLC (MSA) for Fort Lauderdale High School, Phased Replacement Project No. 095-27-01, dated February 12, 2008. SUMMARY EXPLANATION AND BACKGROUND Scope of Work: Basic Services Amended 6/15/10: This item changes the delivery method from Construction Management at Risk to Design/Bid/Build. Demolish existing Swimming pool (Buildings 15 and 16); demolish existing tennis courts; demolish Buildings 1, 2, and 3; construct two 3-story buildings (1 administration and 1 classroom) of approximately 68,940 gross square feet combined to include administration, 3 general classrooms, 5 resource rooms, 4 science labs and related spaces, 4 ESE classroom suite, 1 business technology lab, 1 family and consumer science (ProStart) lab, 1 health occupations lab, 1 pre-law public service education lab, custodial spaces, textbook storage, and student, staff, and public restrooms. Remodel existing science building (Building 8). Construct new parent drop off and pick up areas and staff/visitor parking. Construct new student parking area on the west side of site to increase parking capacity by 92 spaces. Modify existing temporary bus loop to meet SREF, Florida Building Code and ADA Standards. ADA modifications will include barricades and covered sidewalk. Remodel existing courtyard for ADA access to gym and auditorium. MSA and the Superintendent's Negotiations Committee negotiated a total reduction in [architectural] fees from the February 12, 2008 Board approved amount of $2,021,000 to $1,683,650. This decrease in the Basic Services Fees totals $337,350 and is decreased as follows: Phase IV (Bidding and Award) by $54,357, Phase V (Construction Administration) by $269,250, and Phase VI (Warranty) by $13,743. This fee reduction is as a result of a reduction of the original scope as per Attachment 2 to the First Amendment. This First Amendment also reduces the Fixed Limit of Construction Cost (FLCC) from $29,150,340 to $16,950,000 as a result of the reduction in scope and construction costs resulting from current market conditions. The Risk Management Department and the Office of the Chief Auditor have reviewed this First Amendment. The School Board Attorney has approved this First Amendment as to form and legal content. As the parties stipulated in Admitted Fact 35, on June 30, 2010, "[Respondent] posted its Revised Recommendation[] and Tabulation for [the FHS Project, which] set forth the following recommendation": Per Article VII.A of the RFQ, based upon the recommendation of the Qualification Selection Evaluation Committee, the Facilities and Construction Management Division intends to recommend that The School Board of Broward County, Florida, at the School Board meeting on July 20, 2010, reject all responses received for Fort Lauderdale High School Project No. P.000687. The original, intended scope of work as set forth in the original RFQ is substantially and materially different than the revised scope of work and budget in the proposed contracts and such work should be re- advertised and re-bid. This decision to "reject all responses" and "re- advertise[] and re-bid" was based on an honest and good faith exercise of discretion, intended, ultimately, to allow Respondent to receive (in the words of Mr. Herrmann) "more bang for [its] buck." As the parties stipulated in Admitted Facts 39 through 41, Petitioner timely protested Respondent's intended "reject[ion] [of] all responses." As the parties stipulated in Admitted Facts 42 through 44, after the parties had unsuccessfully attempted "to resolve the protest by mutual agreement," Respondent, at Petitioner's request, referred the matter to DOAH on August 23, 2010.
The Issue Whether Petitioner should be granted additional credit for one or more examination questions answered by him during the June 1990 Certified Building Contractor Examination.
Findings Of Fact Petitioner sat for reexamination at the June 1990 certified building contractor examination. On Part II, he received a score of 74.0. A minimum passing score is 69.01. On Part III, he received a score of 67.00. Minimum passing score is 69.01. Petitioner had previously passed Part I of the exam. Petitioner initially challenged question numbers 4, 10 and 17. The National Assessment Institute prepares licensure examinations for building contractors in the State of Florida under authority of the Office of Examination Services, Department of Professional Regulation. The Institute prepared question numbers 4, 10 & 17 for the certified building contractor examination administered on June 26 and 27, 1990. As to question number 4, the only correct response to the question was answer "B". Petitioner's answer to the question was "D", which was not acceptable. As to question number 10, the correct response was answer "C". Petitioner's answer "B", was not acceptable. As to question number 17, the correct response was answer "C". Petitioner's answer "A" was not acceptable. The Department's determination that answers "B", "C" and "C" were the only appropriate answers was not arbitrary and unreasonable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the challenge by Petitioner that he be awarded a passing grade for Part III of the June 1990 certified building contractors examination be DENIED. DONE AND ENTERED this 19th day of April, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 19th day of April, 1991. COPIES FURNISHED: Robert J. Uebelacker 326 NW Catherine Avenue Port Charlotte, FL 33952 Vytas J. Urba, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Recommendation Based upon the admission of the Respondent, Oscar Darias, that the allegations in the Administrative Complaint are true, and the Respondent's plea of guilty to the violations as charged in the Complaint, it is RECOMMENDED that the certified general contractor's license, number CG C004728, held by the Respondent, Oscar Darias, be revoked. THIS RECOMMENDED ORDER entered on this 22nd day of September, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1981. COPIES FURNISHED: Harold M. Braxton, Esquire 45 S.W. 36th Court Miami, Florida 33135 Oscar Darias 9402 S.W. 17th Street Miami, Florida 33174
Findings Of Fact The following facts are stipulated by the parties, as reflected in their prehearing statement filed on October 2, 1989: HRS released an Invitation to Bid on Lease No. 590:1986 seeking at least 23,051 sq. ft. of rental space in Sanford, Seminole County, Florida; Petitioner, Carl M. Napolitano, Trustee, is the owner of record of the Welaka Office Building in Sanford, Florida. Napolitano was the winning responsible bidder on Lease No. 590:1986, which lease HRS awarded to Napolitano on December 12, 1988, without subsequent protest; Subsequent to the award of Lease No. 590:1986, at HRS' request, Napolitano submitted floor plans for the Welaka Office Building, which plans have been designated Plan "A" and are Napolitano's Exhibit [2] in these proceedings; HRS' Facilities Services Manager rejected Napolitano's Plan "A" and demanded that additional plans be submitted which encompassed additional renovations desired by HRS, which renovations were identified subsequent to the award of the lease to Napolitano; HRS accepted Plan "B", Napolitano's Exhibit [4] in these proceedings, which was drafted at the request and direction of HRS by Napolitano's draftswoman; Napolitano maintains Plan "A" is in compliance with the requirements of HRS' Invitation to Bid and specifications and stands ready and willing to perform the required renovations. HRS maintains Plan "A" is unacceptable, Plan "B" is the only acceptable floor plan which complies with HRS' Invitation to Bid and specifications. HRS stands ready to accept Plan "B" and enter into a lease with Napolitano based on the Plan "B" renovations; The renovations contemplated in HRS' Plan "B" are not specifically identified in HRS' Invitation to Bid, and those renovations will require significant uncontemplated expenditures by Napolitano; and The term "counter-proposal" used by HRS in its notice of cancellation of the lease [exhibit # deleted] is not intended to have legal significance. No "counter-proposal" was made. The Welaka Office Building, a two-story 100 year old historic building, is located in downtown Sanford, Seminole County, Florida. At the time of purchase by its present owners, approximately five years ago, HRS was already occupying space in the building, along with another state agency. That agency, the Probation and Parole Commission, has moved, and the HRS bid space includes the suites which it formerly occupied. HRS has remained in the building as a month-to-month tenant since the prior lease expired in March 1989. Jennifer Nichols is an interior designer specializing in commercial space planning. In December 1988, she was retained by Carl Napolitano to work with HRS in developing renovation plans preliminary to execution of a lease. In December and early January she began meeting with the HRS supervisors and staff occupying the Welaka Building, listening to their suggestions and working from an existing floor plan. From the space requirements expressed by those staff, and after several preliminary drawings, Ms. Nichols developed what has been referred to in this proceeding as "Plan A." Ms. Nichols sent the plan to David Croy, an HRS program administrator in the Welaka Building. Mr. Croy called her the following week and explained that although "staff" were happy with the plan, there might be issues regarding room sizes and the like that some of the superiors might find objectionable. Subsequent to that contact Ms. Nichols met with Mr. Croy and Lynn Maubley, a representative from HRS' Facility Services Manager's office. She was given a tracing paper overlay of the existing floor plan to show the modification HRS desired and she incorporated that into what ultimately became "Plan B." Plans A and B are the same regarding space on the second floor. They differ materially as to the first floor space, as Plan B requires substantially more renovation, particularly to an area utilized by the child support unit. Until this latest meeting, Ms. Nichols had understood from the child support unit supervisor that only minor changes would be required. Lynn Nichols informed Carl Napolitano of the new requirements. He instructed her to be receptive and continue working with the agency. Lynne Nichols prepared a "demolition plan" showing what changes would have to be made to get from the existing floor plan to Plan B. Carl Napolitano took the demolition plan to his contractors and learned that the changes would cost a minimum of $80,000.00. HRS approved Plan B and not Plan A or any of the variations between the two. Sometime around May 1989, negotiations broke down and Napolitano refused to proceed with Plan B. The bid specifications included in the invitation to bid do not provide any detail with regard to floor plan renovations or any cost ceilings. Floor plans cannot be provided, as the agency cannot anticipate the configurations in the buildings which are offered in response to the advertisement. Instead, the specifications provide the total net square footage required and a listing of "approximate number/size" of different types of space, including offices, clerical areas, reception rooms, conference rooms, mailroom, lounge, and other speciality rooms. [Petitioner's Exhibit #1, p.6.] The specifications also include this language: SPACE REQUIREMENT CRITERIA FLOOR PLAN: The successful bidder shall provide architectural and engineering services as necessary to prepare renovation plans. Finalized floor configuration plans will be dependent on the layout of the proposed building and as determined by HRS staff. [Petitioner's Exhibit #1, p.6] Carl Napolitano acknowledged this requirement on the bid response form by placing his initials in the space provided at the bottom of the page. The square foot approximations are included in the package in order to comply with Department of General Services rules allocating space according to staff paygrade. These allocations cannot be precise. Each building is different, and the Welaka Building is particularly unique as some walls are twelve inches thick and should not be moved. With 23,000 square feet total, it is improbable that the floor plan, even with renovations, could precisely match the numbers and sizes provided in the specifications. Plan B does not precisely match the numbers and sizes in the specifications. For example, paragraph c.1. of the invitation to bid specifies "2 offices not to exceed 150 sq. ft. each;" instead there are 21 offices in that range and, there are 12 offices ranging from 155 to 200 square feet. Forty-four offices, rather than the specified 35, are under 110 square feet. The total number of offices in Plan B is 87 rather than the 88 called for in the specifications. According to Lynn Nichols, Plan A is not in precise conformance either, but there is less variation and she has not computed the difference between the plan and specifications. The room sizes and numbers in Plan B are materially consistent with the approximate numbers and sizes listed in the invitation to bid. Petitioner has not suggested that other aspects of Plan B would be nonresponsive to the invitation to bid. Instead, he argues that the extent of renovations required by HRS are nowhere reflected in the specifications and that he contemplated only minor changes when he computed his rental rates. Napolitano cites no basis for that assumption. Only approximately 25% of the space leased in HRS-District 7 is shelled-in, or vacant, space. The rest is in existing buildings, and the form specifications permit HRS to require a complete renovation of the building. The cost of renovations has to be factored into the bid. Phillip Proccacio, a developer whose primary business is leasing, with extensive experience in dealing with state agencies, uses $20.00 per square foot as a rule of thumb to figure renovation costs. This figure is adjusted up or down, depending on the age of the building and its state of compliance with the mechanical specifications. As HRS' facility service manager responsible for preparing invitations to bid, Ernie Wilson is aware that other lessors use that rate and find it reasonable. At that rate, the renovation of the Welaka Building would amount to $460,000.00 for 23,000 square feet.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a Final Order be entered revoking the bid award of lease #590:1986 to Petitioner. DONE AND RECOMMENDED this 11th day of December, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 11th day of December, 1989. APPENDIX The following constitute specific rulings on the findings of fact proposed by Petitioner: 1. Adopted in Statement of the Issues. 2.through 4. Adopted in paragraph 1. Adopted in substance in paragraphs 4 and 5. through 8. Rejected as irrelevant. Adopted in substance in paragraph 8. Rejected as immaterial. Adopted in paragraph 8. 12. Adopted in paragraph 1. 13. and 14. Rejected as contrary to the weight of evidence. The plan does comply, as the sizes are mere approximations and for practical reasons cannot be more precise. 15. through 17. Adopted in paragraph 11. Rejected as unnecessary. Rejected as contrary to the weight of evidence. (Ernie Wilson's testimony in this regard is credited.) Rejected as unnecessary and immaterial. Adopted in substance in paragraph 13. Rejected as contrary to the evidence. Napolitano failed to prove the basis for his mistaken belief prior to bid that renovations would be minor. through 25. Rejected as unnecessary. The cancellation is addressed in the Preliminary Statement. That Napolitano has been prevented from presenting plans in conformance with the specifications is unsupported by the record. through 32. Rejected as irrelevant or unnecessary. COPIES FURNISHED: James C. Barth, Esquire 433 North Magnolia Drive Tallahassee, FL 32308 James A. Sawyer, Esquire Dept. of Health and Rehabilitative Services 400 W. Robinson St., Suite 701 Orlando, FL 32801 Gregory L. Coler, Secretary Dept. of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 John Miller General Counsel Dept. of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 R. S. Power, Agency Clerk Dept. of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
Findings Of Fact Respondent is a certified building contractor having been issued license number CB CA03134. At times material herein, the Respondent was the qualifier for and conducted his contracting business through the entity doing business as A-1 Builders, Inc. On June 29, 1981, A-1 Builders, Inc., entered into a contract with Albert E. and Helen E. Chaloux to construct a residence in Sebastian, Florida, for the sum of $53,158.00 (Petitioner's Exhibit 5). The Chalouxs paid the Respondent a $4,000.00 deposit to commence construction (Petitioner's Exhibit 6 and TR pages 8-9). Respondent did not commence construction of the Chaloux residence nor did he return any portion of the tendered $4,000.00 deposit. On February 24, 1981, A-1 Builders, Inc., entered into a contract with Jeffrey and Linda Ferris to construct a residence in Sebastian, Florida, for the sum of $32,849.00 (Petitioner's Exhibit 1). Respondent completed the Ferris residence during July 1981 and A-1 Builders, Inc., through the person of the Respondent, received full payment at the closing (Petitioner's Exhibit 2). At closing, Respondent transmitted a warranty deed to the Ferrises stating that the property was being delivered to them without any encumbrances (Petitioner's Exhibit 3). At the time of closing, Respondent, through the qualifying entity A-1 Builders, Inc., owed several suppliers and contractors monies for material and services which were furnished for the completion of the Ferris residence and remained unpaid. Specifically, Respondent owed the following suppliers and subcontractors monies: Colkitt Sheet Metal and Air Conditioning, Inc. - $1,500.00 (Petitioner's Exhibits 10-11); Russell Concrete, Inc. - $421.20; and White Drywall - $1,634.00 (Petitioner's Exhibit 7). RESPONDENT'S POSITION Respondent acknowledged that he received a $4,000.00 deposit from the Chalouxs and that he did not commence construction as agreed. However, Respondent urges that A-1 Builders underwent financial difficulties based upon unwarranted newspaper accounts and malicious prosecution by the local State Attorney's office and the Petitioner's investigator which forced him near bankruptcy. Respondent did spend some money toward the initial phases of commencing construction for the Chalouxs which consisted primarily of he payment of monies toward the filing of an application fee for the Chalouxs to obtain financing, the preparation of plans and drawings and some unspecified costs respecting the site preparation for the Chaloux residence. Respecting the allegation that Respondent falsely indicated that there were no encumbrances on the Ferris residence, Respondent's only position is that he was forced to foreclose on certain homes and that the various liens and claims of liens which have been filed by the above-referenced suppliers and subcontractors are being paid as monies are received from the foreclosures.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED that the Respondent's certified building contractors' license number CB CA03134 be REVOKED. DONE AND ENTERED this 12th day of April 1984 in Tallahassee, Florida. JAMES E. BRADWELL 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 12th day of April 1984.
