Findings Of Fact Petitioners are husband and wife. They were required to locate to another home due to the acquisition of right-of-way by Respondent for construction of Interstate Highway 75 in Collier County, Florida. It is undisputed that Petitioners are eligible displacees under the federal government's Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and are displaced persons entitled to relocation assistance within the definition of 49 Code of Federal Regulations, Subtitle A, Section 25.2(f). Petitioners and their children resided in two of three travel trailers which they owned on a five acre tract of land in a rural, wet area of Collier County, Florida. Both Petitioners were employed. He drove daily approximately 80 miles each way to his job as a taxi cab operator in Fort Lauderdale, Florida. She worked part time as a store clerk in a business near their home. On February 23, 1986, an employee of Respondent completed a household survey questionnaire regarding Petitioners' residence. The purpose of the questionnaire was to decide requirements governing assistance to be provided them in view of their future relocation to other housing as a result of their displacement by the interstate highway construction. The survey establishes that Petitioners owed $2,000 on their property, and that replacement housing was required for the husband, wife and two children of opposite sexes. The husband signed the survey instrument. Petitioners' property had an appraised value of $25,950. Of this amount, $17,550 reflected land value and $8,400 was the value of improvements. Petitioners initially received $25,950 when their property was acquired by Respondent through eminent domain proceedings. In the absence of comparable, utility equipped acreage in Collier County where applicable zoning restrictions would permit the placement of mobile homes, Respondent upgraded the type of replacement housing used to determine the amount of relocation assistance due to Petitioners. The effect of such an upgrade, termed "last resort housing," is to permit a higher limit on the payment to be made by Respondent to Petitioners for replacement housing. In this case, the upgrade consisted of Respondent's use of home sites with permanent houses on them in the calculation of the payment to be made to Petitioners. Respondent used three comparable parcels of property in the Golden Gate subdivision near Naples, Florida. The highest priced property was $53,900. This area is approximately 30 miles West of the site of the land previously occupied by Petitioners. A determination of comparable property is generally limited to a 50 mile radius of the dislocatee's property and, when possible, closer to the job of the primary income producer in the family. In this instance, no properties were available in the 50 mile radius to the East of Petitioners' property in the direction of Fort Lauderdale due to the immediate proximity of the Florida Everglades. On April 21, 1986, the comparable properties were selected, approved and determined by Respondent's staff to comply with the relocation program's requirements that comparable housing parcels used to compute the replacement housing payment meet decent, safe and sanitary living standards. Those standards require that comparable properties provide a minimum living area for the number of affected inhabitants, as well as appropriate utilities. The process of computing a replacement housing payment requires that the property appraisal of the dislocatee's property, including improvements less depreciation, be subtracted from the highest priced comparable to provide the amount due to the displaced property owner. Due to the condition of Petitioners' travel trailers, septic tank and well, those items were depreciated 40 per cent which resulted in a value of $4,279. Respondent rounded this amount off to $4,300. This final amount plus the land value of Petitioners' property of $17,500 came to a total of $21,800 for purpose of determining an amount to be subtracted from the highest priced comparable property value of $53,900. The result of this subtraction, or $32,100, reflected the amount of the replacement housing payment which Respondent determined to be due to Petitioners. The net effect of Respondent's depreciation of Petitioners' property improvements resulted in a reduction of the amount to be subtracted from the highest priced comparable property value which, in turn, increased the amount of the replacement housing payment. Dislocatees may acquire new property wherever they wish without regard to the location of comparable properties used to calculate their relocation assistance payment, although such comparable properties must be available to dislocatees who desire to purchase them. Petitioners contracted with a builder to construct a home in Palm Beach County. After payment by them of $4,000 to this individual, he vanished with their money. Subsequent to the experience with the unreliable West Palm Beach builder, Petitioners indicated to Respondent a desire to have their relocation payment computed again, this time on the basis of replacement housing in Broward County, Florida. Three new comparables were selected by Respondent's staff in that county. As had occurred in Collier County, Respondent's staff encountered difficulty finding comparable acreage property due to the lack of availability of such property which would meet restrictions imposed on such acreage with mobile homes. The result was that Respondent's staff determined no comparable acreage to be available in Broward County, Florida. Palm Beach County, Florida, was also searched by Respondent staff for comparable properties, but this effort was abandoned as a result of Petitioners expressed greater desire to relocate in Broward County. On June 26, 1987, three residences were selected by Respondent from the Pembroke Pines area Broward County to serve as comparables in the computation of the amount of the relocation housing payment. The evidence establishes that these homes were either "double wide" trailers or permanently affixed modular homes. These properties were selected because the comparables used in Collier County were no longer available. These residences were an "up grade" from the small travel trailers inhabited by Petitioners. Since the selling value of the highest priced Broward County comparable was only $49,500, the result, after subtraction of the estimated value of $21,800 for Petitioners' property, was a housing payment of $27,700. Since this payment amount is less than the amount originally computed by Respondent's staff, its use is prohibited by relocation program guidelines. Therefore, the previously computed greater amount of $32,100 for the area near Naples, Florida, became the final replacement housing payment. The evidence establishes that Petitioners filed an application and claim for replacement housing payment on March 23, 1987, and were paid $32,100 by state warrant dated April 28, 1987. Advanced moving expenses of $400 were paid to them by state warrant dated September 9, 1987. A state warrant for $1,497.26 to reimburse incidental expenses was issued to Petitioners on December 1, 1987. In total, it is found that Petitioners received $59,947.26 when the complete amount of relocation expense payments is added to the $25,950 amount also paid to them by the State of Florida in initially acquiring their property. Petitioners moved from their property in Collier County during July or August 1987. Petitioners located a house in West Palm Beach, Florida, but were unable to meet mortgage qualifications. However, after a high down payment with approximately half of the funds received from Respondent, they purchased the home. The amount of indebtedness remaining on the home is slightly less than $60,000 and has created a financial problem for Petitioners. Their desire is for Respondent to pay off the remaining mortgage amount or provide an acre of land with trailers in which to live. Respondent is authorized to administer the federal government's Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Respondent also administers a corresponding relocation aid program established by state law. Rules governing the state program are almost a verbatim duplicate of the federal program. Respondent's right-of-way procedures manual, comprised of state rules governing nonfederal relocation assistance, and federal regulations are used in administration of federal relocation aid projects.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioners' claim for further payment. DONE AND ENTERED this 18th day of January, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings 1. 2. Unnecessary to result reached. Addressed. Unnecessary to result reached. Not supported by weight of the evidence. 5-6. Unnecessary to result reached. Self-serving assertion; not supported by the weight of the evidence. Addressed. Unnecessary to result reached. 10-14. Addressed. Adopted by reference. Addressed. Unnecessary to result reached. Addressed. Rejected, not supported by weight of the evidence. Rejected as a conclusion or recommendation, not a factual finding. Respondent's Proposed Findings 1-5. Addressed in part; remainder unnecessary to result. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ann Porath, Esquire 12773 West Forest Hill Boulevard Suite 209 West Palm Beach, Florida 33414 Thomas H. Bateman, 111, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Honorable Kaye N. Henderson Secretary Haydon Burns Building Attn: Eleanor F. Turner, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact On December 3, 1979, the petitioner forwarded to the Division of Administrative Hearings a request for a formal hearing in the instant case. On January 7, 1980, the hearing was scheduled for February 28, 1980 in Bradenton, Florida. The Notice of Hearing which was mailed to the Respondent at the address furnished the Petitioner was returned undelivered with no forwarding address. Attempts to locate the Respondent proved unsuccessful until June 5, 1981, at which time an investigator from the Board located the Respondent working as a foreman on a construction site in Clearwater, Florida, and served him with a copy of the Notice of Hearing. On April 15, 1978, the Respondent entered into a contract with Mollie Cooper to construct a 12' x 31' room addition including a family room, bedroom and bath, onto an existing residence. The contract price was $11,340.00. An initial payment of $5,670.00 was made on April 17, 1978 by Ms. Cooper to the Respondent's construction company, Southern Cross. In the contract, the Respondent agreed to complete the working drawings for the addition and to obtain building permits. The Respondent obtained a building permit for the project from the City of Bradenton, Department of Planning and Development on May 17, 1978. The Respondent began working on the addition in May of 1978. On May 30, 1978 workmen poured the slab for the addition. When Ms. Cooper awoke on June 4, 1978, she discovered approximately four inches of water in her house which was caused by the slab being poured at the wrong angle. Later that day, a workman arrived at Ms. Cooper's home and removed the ends of the roof including fascia and guttering. Nothing further occurred until June 29, 1978 when the Respondent delivered concrete blocks to Ms. Cooper's home. Ms. Cooper never spoke to the Respondent after June 29, 1978, but her lawyer did contact the Respondent's attorney regarding problems which she was having with the Respondent's work. The job was never finished by the Respondent and Ms. Cooper was required to spend approximately $1,500.00 to repair her home. The Respondent holds active registered contractors license No. RR 0012951. The City of Bradenton has no local licensing board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent's license as a registered residential contractor be revoked and an administrative fine of $500.00 be imposed. DONE and ORDERED this 21st day of September, 1981, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1981. COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202
Findings Of Fact The Petitioner owned property including structures used for his dwelling and for his business which was located within the right-of-way of an interstate highway being constructed by the Respondent, Department of Transportation. The Petitioner and the Department negotiated with respect to the amount of compensation that Petitioner was entitled to receive. The Department located a residential dwelling which it contended was comparable to Petitioner's. Petitioner accepted the dwelling located by the Department as comparable for the purpose of determining the amount of compensation that Petitioner was entitled to receive. Petitioner elected, however, to construct a new dwelling on other property that he owned. Petitioner was compensated as if he had purchased the comparable dwelling and was compensated an additional $829 for "incidental expenses" beyond the replacement value as established by the comparable dwelling. Petitioner contends that he is entitled to be compensated for the cost of a "origination fee" which resulted from Petitioner's having to arrange financing. Although improperly labeled, it appears that Petitioner did receive adequate compensation for the loan origination fee. Petitioner received a check from the Department for a "replacement housing payment" which included the origination fee which Petitioner contends he was entitled to receive. While the replacement housing payment was not broken up so as to reflect these fees, it was calculated to include them. Petitioner contends that he is entitled to receive incidental expenses beyond those that he has already received in the amount of $2,068.23. Petitioner has received a payment for incidental expenses in the amount of $829, which includes expenses for a survey, sketch and description, loan application fee, title insurance, attorney's fees, and recording fees. Petitioner actually incurred incidental expenses beyond those for which he was compensated. These additional fees resulted, however, from the fact that Petitioner elected to construct a new residence rather than to accept the comparable residence located by the Department. Because Petitioner was constructing a new residence, it was necessary for him to incur some expenses which would not have been incurred had he accepted the comparable dwelling located by the Department. These expenses included costs of obtaining a rezoning of his property, costs of various construction permits, the cost of obtaining a construction loan, and the cost of a builder's risk insurance policy. While the Petitioner actually incurred these costs, they were costs that he would not have incurred if he had elected to accept the comparable dwelling located by the Department. Petitioner did accept the comparable dwelling for the purpose of setting the amount of benefits that he was entitled to receive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Department of Transportation denying the application of the Petitioner, John D. Lawrence, for additional relocation assistance benefits. RECOMMENDED this 2nd day of August, 1982, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 2nd day of August, 1982. COPIES FURNISHED: Mr. John D. Lawrence c/o Manatee Tropical Foliage Post Office Box 206 Parrish, Florida 33564 Charles G. Gardner Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Mr. Paul N. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue The issue is whether Petitioners are entitled to an award of attorneys’ fees and costs pursuant to section 57.111, Florida Statutes (2017).1/ Petitioners are entitled to such an award if: Petitioners were the prevailing parties in a previous administrative proceeding initiated by the Department of Transportation (“the Department”); (b) the Department’s actions were not substantially justified; and (c) no special circumstances exist that would make an award of fees and costs unjust.
Findings Of Fact The following Findings of Fact are based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding: The Parties The Department is the state agency responsible for coordinating the planning of a safe, viable, and balanced state transportation system that serves all regions of Florida. § 334.044(1), Fla. Stat. As part of its duties, the Department regulates “[v]ehicular access and connections to or from the State Highway System . . . in order to protect the public health, safety, and welfare.” § 335.182(1), Fla. Stat. Crum’s Service is owned by Ronald Crum and has been in operation for over 50 years. It is located in Panacea, Florida, adjacent to State Road 30/61 (“Highway 98”). Crum’s Service has less than 10 employees, and Mr. Crum’s net worth is less than two million dollars. Coastal Restaurant is owned by Rita Sadler and has been in her family since the 1950s. It is next to Crum’s Service and is also adjacent to Highway 98. Coastal Restaurant has approximately seven full-time employees, and Ms. Sadler’s net worth does not exceed two million dollars. Kelli Boxberger operates The Funky Fiddler located on Highway 98 in Panacea. The Funky Fiddler has been in operation since the 1950s. Driveway connections on state roads must be permitted or grandfathered. § 335.1825, Fla. Stat.; Fla. Admin. Code R. 14-96.011(3)(a). Because Petitioners’ driveways were in place before 1988, they are grandfathered. § 335.187(1), Fla. Stat. Facts Specific to the Instant Case On April 7, 2014, the Wakulla County Board of Commissioners voted unanimously to support the design and construction of sidewalks and multiuse paved paths. In order to further that effort, Wakulla County requested that the Department fund sidewalk construction from Piney Street to Jer Be Lou Boulevard in Panacea. The proposed sidewalk was intended to address safety concerns associated with people walking along Highway 98. The Department funded the sidewalk project and incorporated it into a separate project to resurface a seven mile portion of Highway 98 running through Wakulla County. The sidewalk project required the Department to evaluate whether existing driveways along Highway 98 needed to be modified for pedestrian safety. If the Department determined that particular driveways needed to be modified, then it sent written notification to the property owners. On August 4, 2017, the Department issued letters to Mr. Crum, Ms. Sadler, and the Boxbergers referencing work on the portion of Highway 98 running from the Franklin County line to Boykin Road in Wakulla County. The letters stated the following: While developing the above-referenced project, [the Department] is required to evaluate existing driveway access connections and modify those which will create a traffic operations or safety problem. As part of this project, sidewalk will be constructed between Piney Street and Dickson Bay Road. The existing driveways adjacent to the proposed construction work for this project also required evaluation for safety of pedestrians. The Department has completed this evaluation and is notifying you of its proposed action with this Notice of Intent to Modify Driveway Connection(s). The letters then state that “[p]ursuant to Sections 334.044(14) and 335.182, Florida Statutes, the Department is initiating action to alter the existing connection of your property to [Highway 98] as identified on the enclosed “DRIVEWAY DETAIL.” In other words, the Department was providing notice that it intended to install a sidewalk in front of Crum’s Service and Coastal Restaurant. The proposed sidewalks would have modified the driveways onto the properties, but would not have closed them. The Department’s proposed modification to the Boxberger property involved a 39-foot wide driveway connection and a sidewalk on either side of the driveway. All of the Department’s proposed modifications pertained to land completely within the Department’s right-of- way. The Department’s August 4, 2017, letters closed by advising Mr. Crum, Ms. Sadler, and the Boxbergers that they had 21 days to request a formal administrative hearing if they disagreed with the Department’s proposed action. Mr. Crum was concerned that the proposed sidewalk would “totally annihilate” his business. Many of his customers use cars or trucks to tow boats. According to Mr. Crum, the Department’s proposal would have resulted in there being insufficient space in his parking lot for vehicles towing boats. Ms. Sadler was concerned that the proposed sidewalk would destroy the parking spaces in front of her restaurant. On August 17, 2017, staff members from the Florida House and Senate organized a constituent meeting at a local restaurant to hear concerns about the resurfacing project. Mr. Crum, Ms. Sadler, a handful of constituents, two legislative staff members, and Reid Carter Johnson, a government affairs liaison from the Department, attended the meeting. Business owners told Mr. Johnson that the proposed sidewalk would impair access between their property and Highway 98. Mr. Johnson told those present that the Department’s engineers would confer with anyone who had concerns about the proposed sidewalk.2/ On approximately August 18, 2017, Mr. Crum and Ms. Sadler hired Ronald A. Mowrey, Esquire, to represent them in this matter. On August 23, 2017, Crum’s Service and Coastal Restaurant filed petitions seeking to challenge the Department’s proposed action through formal administrative hearings. Engineers from the Department conducted a site visit with Mr. Crum, Ms. Sadler, and their attorney on August 29, 2017, at Crum’s Service and Coastal Restaurant. After listening to Mr. Crum and Ms. Sadler’s concerns, the engineers stated that they would review all of the information. Engineers from the Department also met with Ms. Boxberger on August 29, 2017, in order to conduct a site visit pertaining to the location of The Funky Fiddler. At that time, Ms. Boxberger had not retained counsel. Ms. Boxberger was concerned that the Department’s proposed modification would prevent her from displaying merchandise in front of her store on the Department’s right-of- way. She was also concerned that the Department’s proposal would deprive her business of three parking spaces. On September 18, 2017, Ms. Boxberger filed a petition to challenge the Department’s proposed action through a formal administrative hearing. Petitioners did not hear from the Department again until the Department issued each of them an “Amended Notice of Intent to Modify Driveway Connections(s)” (“the Amended Notice(s)”), on November 20, 2017. The Amended Notices stated that: [P]ursuant to Sections 334.044(14), 335.182 and 335.187, Florida Statutes, as well as Rules 14-96.011 and 14-96.015 Florida Administrative Code, the Department has reviewed the existing connection of your property to [Highway 98]. Subsequent to the initial Notice of Intent to Modify Driveway Connections, the Department met with you on- site on August 29, 2017 and engaged in other coordination efforts with your representative to consider information, documents, reports and alternative solutions. After taking into consideration the concerns expressed in these discussions, the Department has amended its plans as detailed in “EXHIBIT A”. The Amended Notices indicated that the Department decided against placing a sidewalk in front of Crum’s Service and Coastal Restaurant.3/ The Department’s Amended Notice to Ms. Boxberger clarified the substance of the Department’s proposed action but set forth no material changes. The Amended Notices to all three Petitioners stated that they could request a formal administrative hearing if they disagreed with the proposed action set forth in the Amended Notices. Mr. Crum and Ms. Sadler were satisfied and did not challenge the Department’s proposed action. As a result, the Department issued Final Orders dismissing the petitions filed by Mr. Crum and Ms. Sadler. As of August 31, 2017, the Department had not disposed of the petition filed by Ms. Boxberger.
Findings Of Fact Leamington (Petitioner herein), is a road maintenance and construction contractor doing business since approximately 1985. John Hummell is Petitioner's President and is responsible for all bids submitted for contract awards. Petitioner contracts primarily with the Florida Department of Transportation (Respondent herein). Since 1985, Petitioner has entered into approximately forty-one (41) contracts with Respondent. Petitioner was one of seven bidders on State Job #17030-3536, Contract E-1706, let by Respondent in District I. Respondent notified Petitioner of its decision to award the bid to the second lowest bidder, Simco, by notice posted on April 19, 1993 stating that Leamington's bid was rejected because it was considered not to be responsible and was not in the best interest of the Department (to contract with Leamington). The work in question involves the repairs of the bridge located at SR- 789 at Little Ringling Causeway west of Sarasota in Sarasota County. The work entails removal and replacement of silicone sealant on the bridge deck and replacement and rejacketing of piling with grout epoxy. The bid tabulations revealed that Petitioner's bid was approximately $500.00 less than that of the second lowest bidder, Simco, Inc., of Sarasota. The Department has a procedure called the "district contracts procedure". Part of the procedure calls for the awards committee to review bids and determine who the bid should be awarded to. The awards committee, which was chaired by Glenn Ivey, the District Director of Operations, reviewed the bid submitted for project E-1706. The awards committee voted unanimously to reject Leamington's bid on Contract E-1706. The decision to reject Petitioner's bid, by the awards committee, was based on Petitioner's performance on its more recent Department contracts. Specifically, the awards committee considered projects E-1649, for sidewalk repair in several counties; contract E-1545, a concrete repair job in Lakeland; and contract E-1652, a roadway shoulder repair job. Leamington's contract on the concrete repair job (E-1545) was rated as being poor when Leamington was, in effect, asked to leave the job. Based on Leamington's poor workmanship and difficulties encountered on that contract, Respondent terminated work on the contract after approximately sixty percent (60 percent) of the work was completed. The remainder of that project was completed by another contractor. Specifically, Job No. E-1545 called for Petitioner to remove and replace portland concrete slabs on Memorial Boulevard in Lakeland. Petitioner failed to restore the concrete slabs to a smooth surface, making it necessary for Respondent to have the slabs ground such that motorists had a smooth driving surface. After several warnings, Respondent cancelled the project and, as noted, approximately forty percent (40 percent) of the work was completed by another contractor. Another project reviewed by the awards committee was Contract E-1652, a roadway shoulder repair contract. On that project, Petitioner was advised that the shoulder had to be graded at a certain angle and was shown, by several of Respondent's engineers, the proper manner in which to accomplish the task. Petitioner failed to grade the shoulder at the correct angle as requested. Petitioner also routinely failed to provide proper traffic control during the performance of Contract E-1652 and frequently disputed Respondent's employees advice as to work instructions and ways to eradicate the poor workmanship on that project. Additionally, Petitioner failed to use skilled workers and did not have ample equipment on the job to perform the work on Contract E-1652. Initially, Petitioner had limited equipment at the beginning of the work on Contract E-1652. After Petitioner received a letter from Respondent advising that there wasn't adequate equipment to complete the project, Petitioner obtained additional equipment. The Department terminated Petitioner's work under Contract E-1652 because Petitioner had approached the contract deadline for completion and due to of the numerous problems the Department experienced with Petitioner in getting the work completed acceptably. Bobby Cranford, the Assistant Maintenance Engineer for the Petitioner's Sarasota Maintenance Unit, recommended that Petitioner not be awarded any more roadway shoulder repair contracts based on the difficulties experienced by Petitioner's "poor" workmanship on contract E-1652. Another project reviewed by the awards committee was Petitioner's work performance on Contract E-1649, a sidewalk repair job which encompassed several counties. Petitioner did not have the required personnel and expertise to perform the sidewalk job correctly. Petitioner was kept informed of deficiencies and necessary corrections to correctly perform the sidewalk repair job, however, the proper repairs have not been made. The Respondent introduced a composite of twenty-three (23) photos showing the extent of the problems Petitioner needed to correct the sidewalk repairs with notes as to the corrective action that was needed. Specifically, Petitioner used little expansion joint materials and no edging tools were utilized on the project. Similar problems were found throughout the four county area in which Petitioner was engaged on the sidewalk project. By letter dated May 13, 1993, Respondent advised Petitioner of the numerous problems on contract E-1649. Specifically, Petitioner's President was told of visual inspections which showed substandard work on the original work as well as the work wherein Petitioner attempted to correct deficiencies which were discovered by Respondent. For example, Petitioner was advised that at 506 First and Main Streets in Wachula, there were sections of concrete sidewalk removed and scheduled for replacement with adjacent sections now damaged. Petitioner was further advised that workers had driven trucks on the sidewalk damaging several slabs not marked for replacement. Finally, Petitioner was asked to correct broken sprinklers at the work site and to resolve a claim filed by a Mrs. Campbell, which was registered with Respondent. The awards committee also relied upon an independent inspection report prepared by Bobby Cranford. That report is a forty (40) page report citing numerous deficiencies on the sidewalk repair project. Respondent requires that contractors employ english speaking superintendents at each work site to assist in communicating with its inspectors. Petitioner utilized superintendents who did not speak english and thereby created a language barrier making communication difficult with Respondent's personnel. Respondent had to monitor Petitioner's projects extensively and at a cost which increased the Department's overhead disproportionately when compared to other projects let to other district contractors. Based on a review of Respondent's work on Petitioner's recent contracts, no other contractors performing contracts in District I had a performance record as poor as Petitioner. When the awards committee made its decision to reject Petitioner's bid on the subject contract, it also relied on a memorandum from , Wally Clark, a District I attorney. In the memorandum it was concluded that Petitioner had subcontracted work to Hummell, Inc., a separate entity and that the required prior written approval of the subcontracting had not been obtained from Respondent. The investigation also revealed that the subcontractor, Hummell, Inc., had not been paid for its services (by Petitioner). An internal audit also prepared by Wall revealed that Hummell, Inc. was an unpaid subcontractor of Petitioner. The awards committee also considered allegations from Phillip Spears, a subcontractor of Petitioner, who had not been paid for work performed on Respondent's contracts. The committee also considers a newspaper article which stated that Petitioner was under investigation by local law enforcement officials for failure to pay subcontractors on the Interstate 75 project. Dennis Hall is the District Investigator for District I. Hall accompanied Wall, the author of the internal audit report, on investigations and interviews in compiling the audit report. One of the persons interviewed by Wall and Hall was Larry Zavitz. Zavitz was an inspector employed by Petitioner in excess of twenty- eight (28) years and had performed the inspection on Petitioner's sidewalk repair project under Contract E-1649. During the interview of Zavitz, he admitted to receiving a loan of $1,000.00 from John Hummell which Zavitz had not fully repaid at the time of the interview. Upon Zavitz admission of accepting the loan, he was asked and later resigned from the Department.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED that: Petitioner's protest of the rejection of its bid on Contract E-1706 be rejected and the Department enter its award of the subject contract to the second lowest responsible bidder, Simco, Inc. of Sarasota. DONE AND RECOMMENDED this 8th day of September, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1993. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Haydon Burns Building 562 Suwannee Street Tallahassee, Florida 32399-0458 William H. Roberts, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Michael E. Riley, Esquire 106 East College Avenue Post Office Box 10507 Tallahassee, Florida 32302
The Issue The issue for determination is whether Respondent's intended decision to fund the application of Petitioner Duval Park, Ltd. (Duval Park), is contrary to its governing statutes, rules, policies, or the proposal specifications.
Findings Of Fact Florida Housing is a public corporation that administers low-income housing tax credit programs. As of July 1, 2012, Florida Housing was authorized to use up to ten percent of its annual allocation of low-income housing tax credits to fund high-priority affordable housing developments selected through a competitive solicitation process, such as the RFP. See Ch. 2012-127, § 4, Laws of Fla. (2012)(creating § 420.507(48), Fla. Stat.). Examples of "high priority" affordable housing developments include housing for veterans and their families, and housing for persons with special needs. Prior to issuing the RFP, Florida Housing conducted some demonstration RFPs for developments serving special needs households, but the RFP represents the first actual use of the competitive solicitation process to award low-income housing tax credits. Previously, low-income housing tax credits were awarded through what was known as the universal application cycle, a process described as cumbersome, lengthy, and inflexible. As part of the universal application cycle, an applicant could indicate by checking a box that it intended to provide affordable housing to special needs households. However, the general universal application process did not lend itself to a targeted proposal detailing how the unique needs of specific special-needs population groups would be addressed. The competitive solicitation process was seen as a way to allow applicants to respond to particular high-priority development needs identified by Florida Housing. In setting forth their development proposals for defined target population groups, applicants would be able to tell their story: applicants would identify and describe the unique needs and household characteristics of the specific special-needs population group that is the focus of their application; applicants could detail and demonstrate their know-how with regard to the resources available in the community where the proposed development is located, to meet the unique needs of the target population; and applicants would be able to discuss the relevant experience of the developer and management teams that make them well-suited to carry out the proposed development and meet the unique needs of the targeted population group. The RFP The RFP solicited responses or applications proposing the development of "permanent supportive housing" (as defined in the RFP) for persons with special needs. Florida Housing issued the RFP with the expectation of funding two or more proposals. The RFP provided that applicants could propose developments for persons with special needs generally, or applicants could choose to focus on serving veterans with special needs. If an applicant chose to focus on veterans with special needs, the applicant was required to pick one of two specific subcategories: either veterans with service-connected disabling conditions transitioning from a Veterans' Administration (VA) hospital or medical center; or chronically homeless/ institutionalized veterans with disabling conditions who were significant users of public resources, such as emergency care and shelter. The RFP specified that it was Florida Housing's goal to fund at least one development proposing to serve veterans with special needs. Preference would be given to proposed developments focusing on serving special-needs veterans in the first subcategory, i.e., veterans transitioning from VA hospitals and medical centers. Duval Park, Osprey, and five other applicants timely submitted applications in response to the RFP. Both Duval Park and Osprey proposed permanent supportive housing developments to serve veterans with special needs transitioning from VA hospitals and medical centers. As described in the RFP, an evaluation committee comprised of Florida Housing employees reviewed and scored the applications. Members of the evaluation committee were instructed to independently evaluate and score the application sections assigned to them. The RFP specified that at least one public meeting would be held at which the evaluators were allowed to discuss their evaluations, make any adjustments deemed necessary to best serve the interests of Florida Housing's mission, and develop recommendations for the Florida Housing Board of Directors. For most application sections, a single evaluator was assigned to review and score the seven responses. For example, Mr. Aldinger was the evaluator who reviewed and scored the two application sections addressing developer and management company experience with permanent supportive housing. Two application sections were assigned for evaluation and scoring by two evaluation committee members. The two evaluators first independently reviewed and scored all seven application responses for the two sections. Then the two evaluators met in a noticed public meeting to conduct a "reconciliation process," in which they discussed their evaluations of the responses to the two application sections and reconciled differences in their scores. The evaluation committee ultimately concluded that Duval Park's application was entitled to a total of 119 points out of 133 possible points, and that Osprey's application was entitled to 117 points. A large gap in scoring separated these two highest-scoring applicants from the other five applicants; the next highest score was 95 points. The evaluation committee presented its recommendation to the Florida Housing Board of Directors, along with a summary of the scores assigned by the evaluation committee. The committee's recommendation was that Florida Housing should award funding to Duval Park for its proposed development. Florida Housing's Board adopted the committee's recommendation. Osprey's Protest Issue Remaining for Determination Following the parties' withdrawal of most of their protest issues, the only remaining disputed issue for resolution in this proceeding is Osprey's claim that Duval Park should have received "at least three" less points than Osprey for the sections addressing developer and management company experience.2/ Mr. Aldinger's assignment as the evaluation committee member responsible for reviewing and scoring these application sections comports with his expertise. Mr. Aldinger has served as Florida Housing's supportive housing coordinator since 2006. In that role, he has been coordinating with governmental bodies and industry stakeholders to develop strategies for focusing Florida Housing's resources on the provision of supportive housing to special needs households. The RFP was developed in furtherance of this effort, and Mr. Aldinger was one of the RFP's authors. Mr. Aldinger assigned the same number of points to the Duval Park and Osprey applications in both sections. Each application received 24 out of 25 possible points for developer experience, and all ten of the points available for management company experience. Osprey's contention is that its narratives for these two application sections show its objective superiority. Osprey's "objective superiority" argument is primarily based on a quantitative comparison, in which its narrative showed experience developing and operating a larger number of permanent supportive housing units than did Duval Park's narrative. Osprey also contends that its narrative was qualitatively better in providing greater detail regarding its experience developing and operating permanent supportive housing. As part of its argument, Osprey contends that Duval Park strayed from the RFP instructions by describing experience with more than just permanent supportive housing, but that the evaluator gave Duval Park credit anyway. The RFP instructions provide the starting point to assess Osprey's contentions. First, the RFP provided the following definition of "permanent supportive housing": Rental housing that is affordable to the focus households with household incomes at or below 60 percent of area median income (AMI), that is leased to the focus households, for continued occupancy with an indefinite length of stay as long as the Permanent Supportive Housing tenant complies with the lease requirements. Permanent Supportive Housing shall facilitate and promote activities of daily living, access to community-based services and amenities, and inclusion in the general community. Permanent Supportive Housing shall strive to meet the needs and preferences of the focus households. This RFP definition was acknowledged to be somewhat broader than how that phrase might be understood by some industry models. For example, Mr. Aldinger testified that transitional housing could be permanent supportive housing within the RFP definition, as long as a lease agreement is used. Permanency is not required, only an "indefinite" length of stay. The fact that leases are for finite terms of 12 or 24 months would not be dispositive; rather, the length of stay would be considered "indefinite" if tenants are not required to leave at the end of their lease terms, if they are not ready to leave and are otherwise in compliance with the lease terms. The provision of supportive services to meet the needs of the focus population is a key part of the RFP definition. The RFP instructions for the developer experience narrative were as follows: Developer Experience with Permanent Supportive Housing (Maximum 25 points): The Applicant must describe the experience of the Developer, co-Developer, and/or Principal in developing and operating Permanent Supportive Housing, and more specifically, housing for the households the Applicant is proposing to serve. Describe the role(s) and responsibilities of any Developer, co- Developer, and/or Principal listed in the Applicant's responses to Items A.2.c. and 3.a. of Section 6 of the RFP, related to the proposed Development, and describe the experience and qualifications relevant to carrying out the roles and responsibilities for this proposed Development. (emphasis added). The RFP instructions for the first application section must also be considered because they tie into the developer/ manager experience sections. The instructions for the first application section required the applicant to provide a detailed description of the focus population group, and the instructions also explained how that description would be used, as follows: [T]he Applicant must provide a detailed description of the resident household characteristics, needs, and preferences of the focus population(s) the Applicant is proposing to serve. This description will provide a point of reference for the Corporation's evaluation and scoring of the Application, providing the foundation for the appropriateness of the experience of the Developer(s) and Management Company, proposed Construction Features and Amenities, Resident services and Access to Community Based Services and Amenities. (emphasis added). As part of this first application section, applicants focusing on special-needs veterans transitioning from VA facilities were required to designate the specific VA facilities with which the applicants expected to be working and coordinating. Osprey, whose proposed development is in Liberty City, Miami-Dade County, designated Miami VA Healthcare System (Miami VA) in Miami. Duval Park, whose proposed development is in unincorporated Pinellas County, designated Bay Pines VA Healthcare System (Bay Pines VA) in Pinellas County, as well as the James A. Haley Veterans Hospital and the Tampa Polytrauma Rehabilitation Center, both in Tampa, Hillsborough County. Osprey and Duval Park both provided extensive narratives describing their target populations and detailing the unique needs and preferences of their target populations. Osprey's narrative described the information learned from interviewing social workers in each of the programs under the umbrella of the Miami VA, with whom Carrfour would be coordinating for transitioning veterans. Osprey's narrative also described a VA grant to Carrfour of $1,000,000 per year for supportive services for veteran families, through which Carrfour provides a comprehensive case management program called Operation Sacred Trust. This program has an outreach team that works closely with social workers throughout the Miami VA. The Duval Park narrative discussed and documented the work of the St. Petersburg Housing Authority Wounded Warrior Community Advisory Group to assess housing needs for veterans. Developer-partner ServiceSource's director of housing was a participant. As part of the assessment, the advisory group conducted veterans' focus groups to hear from the veterans themselves regarding their needs and preferences, including the particular supportive services needed to allow veterans to transition to an independent living setting. The Duval Park narrative also described the information about transitioning veterans learned through ongoing projects with the VA facilities designated for the proposed development, including a Memorandum of Understanding between James A. Haley Veterans Hospital and ServiceSource's Warrior Bridge program. As called for by the RFP instructions, Mr. Aldinger used each application's detailed description of the target population in section one as the foundation for evaluating that application's developer and management experience narratives. The experience narratives were properly evaluated in accordance with the RFP instructions in the context of each applicant's specific proposal to focus on a defined population group transitioning from designated VA facilities, whose unique needs were fleshed out in the first section narratives. Mr. Aldinger reviewed and was impressed with both Osprey's and Duval Park's developer experience narratives, for good reason. As he explained, the two responses took different approaches, but both provided good detail in the limited space allotted. Osprey's narrative described Carrfour, a non-managing member of the applicant entity that will be the developer and, through a subsidiary, manager of the proposed development. Carrfour is a not-for-profit organization created in 1993 by the Greater Miami Chamber of Commerce, with the mission of developing permanent supportive housing to end homelessness. In setting forth Carrfour's experience, the Osprey narrative took a quantitative approach by enumerating Carrfour's 16 mixed-use housing development projects that included permanent supportive housing. Some details were provided for each development, such as the funding sources, the number of total units, how many of those units were permanent supportive housing units, and how many of the units were currently occupied by veterans. However, the narrative did not explain whether any supportive services provided for these developments were specifically geared to meeting the special needs of veterans. The types of supportive services were not identified for any of the 16 developments. For three developments, the description stated only that "a full array of supportive services" was provided or that "on-site supportive services" were provided. Supportive services were not mentioned in the descriptions of the other 13 developments. Other than providing the number of units then occupied by veterans, Osprey's developer experience narrative had no information to demonstrate experience providing housing specifically developed to meet the unique needs of the focus population for its proposed development: veterans with service- related disabling conditions transitioning from the Miami VA. Duval Park's developer experience narrative did not match Osprey's approach of enumerating individual permanent supportive housing developments and quantifying the units in each development. Duval Park's response chose instead to describe in general aggregate terms the permanent supportive housing experience of the developer-partners. The Duval Park narrative went into more detail to highlight the developer team experience with housing projects specifically designed to meet the unique needs of special-needs veterans transitioning from the VA facilities designated in its application, something lacking in the Osprey response. For example, Duval Park's response described developer- partner Boley's substantial experience since it was founded in 1970, in developing more than 500 units of permanent supportive housing in Pinellas County. The narrative also described the even longer-standing experience of developer-partner ServiceSource, founded in 1959 with a mission to provide services to needy people with disabilities. Initially providing employment, training, rehabilitation, and support services (relevant to the roles described for this developer-partner in operating the proposed development), ServiceSource began a housing program in 1995. ServiceSource's permanent supportive housing development experience was summarized in shorthand as including 20 separate "HUD 202/811 awards." The unrefuted testimony established that this shorthand reference was properly understood by Mr. Aldinger to signify 20 permanent supportive housing developments for persons with disabilities. Two specific supportive housing projects for veterans, developed and operated by Boley working with the Bay Pines VA, were detailed in Duval Park's developer experience narrative. In 2007, Bay Pines VA awarded Boley a contract for "Safe Haven Model Demonstration Project" services, described in the notice of contract award as "a specialty model of HCHV residential care as mandated by the . . . zero-tolerance policy to end homelessness within the Veteran population." Through this contract, Boley acquired and rehabilitated a former 20-unit skilled nursing facility to establish Morningside Safe Haven (Morningside), which provides housing and a residential treatment program with counseling for veterans. Half of the 20 veterans housed there have service-connected disabling conditions, and one-third of the veterans transitioned from VA facilities. Pinellas County and HUD provide funding support for this VA pilot program. Osprey contends that Boley's experience developing and operating Morningside should have been ignored in scoring Duval Park's developer experience, because a residential treatment program is not permanent supportive housing. However, according to Mr. Humberg, Morningside is considered permanent supportive housing under HUD guidelines. Veterans sign a 12-month lease to reside in a unit. Although the intent is that tenants will complete treatment and move on, tenants are not required to leave at the end of their 12-month lease terms; they can stay as long as they need to, if they are otherwise compliant with their leases. Even if Morningside did not technically meet the RFP definition of permanent supportive housing, the discussion of Morningside still would be appropriate for this narrative, pursuant to the RFP instructions. The Morningside experience demonstrates Boley's "experience and qualifications relevant to carrying out" its roles and responsibilities for the proposed development, identified in the same narrative to include mental health counseling, case management, and VA coordination. Also described in Duval Park's narrative was Boley's 2010 development of Jerry Howe Apartments, with 13 units developed specifically for formerly homeless veterans, many of whom have service-connected disabling conditions. Funding for this development was provided by the VA and the City of Clearwater. Boley coordinates with Bay Pines VA in operating this development, with Bay Pines VA providing screening and referral services to identify veterans who are candidates to lease apartment units. Boley's staff members work closely with the veteran tenants to provide supportive services, preparing them for more independent living. Osprey quibbles with whether Jerry Howe Apartments technically qualifies as permanent supportive housing, noting that while the veteran tenants do sign a lease, the intent of the project is to serve as transitional housing for up to 24 months. However, Mr. Aldinger explained that transitional housing would meet the RFP's broad definition of permanent supportive housing if tenants are not required to leave after a finite period of 12 or 24 months. Mr. Humberg confirmed that veterans residing at Jerry Howe Apartments are not required to leave after 24 months, if they are not ready to move on. Mr. Humberg also clarified that Boley owned the apartments before they were redeveloped in 2010, specifically to meet the needs of veterans. Before the 2010 redevelopment, Boley operated the property as permanent supportive housing, just not specifically for veterans. In fact, two of the units remain occupied by prior non-veteran permanent supportive housing tenants, who did not want to move out in 2010 when the property was redeveloped. It is not necessary to debate whether Jerry Howe Apartments technically is permanent supportive housing, although the evidence demonstrated that the development is and has been permanent supportive housing, as defined in the RFP. Certainly, this project demonstrates Boley's experience and qualifications relevant to carrying out its roles and responsibilities for the proposed development and, therefore, is worthy of consideration as part of the developer experience narrative. Duval Park's developer experience narrative also detailed specific veterans' supportive service programs developed by both Boley and ServiceSource. The descriptions of these programs demonstrate experience and qualifications directly relevant to the described roles and responsibilities for Boley and ServiceSource with respect to the proposed development. Duval Park's experience narrative details the many accomplishments of ServiceSource's nationally-recognized Warrior Bridge program, which provides a wide variety of supportive services to veterans. Noteworthy is a 2012 award of over $1,000,000 from the City of St. Petersburg to ServiceSource to expand housing options for wounded veterans. Under this program, in the past year, ServiceSource partnered with Home Depot to modify 16 homes and facilities serving wounded veterans in the Tampa Bay area to increase accessibility, safety, and energy efficiency. This experience translates directly to the role ServiceSource will serve as a participant in designing the proposed housing development specifically to accommodate the unique accessibility and other needs of special-needs veterans with disabling conditions. ServiceSource's Warrior Bridge program also operates the "Veterans' Mall" in the vicinity of the proposed development. At the Veterans' Mall, household appliances, cookware, business attire, and necessities are made available to wounded veterans transitioning to more independent housing settings. According to Duval Park's narrative, the Veterans' Mall has served more than 325 veterans since opening in October 2011, through partnerships with Bay Pines VA and local community organizations serving veterans. ServiceSource's representative testified that ServiceSource recently secured a five-year commitment from T.J. Maxx to stock the Veterans' Mall with new suits for veterans going on job interviews. The Duval Park developer experience narrative regarding the Warrior Bridge program portrays ServiceSource's experience and qualifications to carry out its described roles and responsibilities for the proposed development, which include community outreach, physical disability counseling, employment assistance, job training, and VA coordination. Another program described in Duval Park's developer experience narrative is Boley's Homeless Veterans Reintegration Program. This is a case management, training, and employment program specifically for veterans, conducted by Boley case managers and employment specialists, demonstrating that they are well-suited to carry out the described roles and responsibilities for Boley with respect to the proposed development, which includes the lead case management role. A reasonable person attempting to compare the two developer experience narratives might say that Osprey's narrative demonstrated greater quantitative experience in developing more units of permanent supportive housing generally, but that Duval Park's narrative demonstrated better qualitative experience among the developer-partners in developing supportive housing specifically for veterans with special needs. Duval Park's narrative was more directly focused on specific experience developing supportive housing that addresses the unique needs of those special-needs veterans who are transitioning from VA facilities. In addition, Duval Park's narrative better demonstrated experience and qualifications among the developer- partners that are directly relevant to their described roles and responsibilities in carrying out the proposed development. Both narratives were very good and responsive to the RFP instructions, while taking very different approaches. Mr. Aldinger reasonably applied the RFP instructions, reasonably evaluated the two narratives, and reasonably judged them both to be deserving of the same very high score. The credible evidence does not support Osprey's contention that its developer experience narrative was superior, or that Duval Park's narrative strayed beyond the RFP instructions, or that Duval Park's narrative was judged by different standards than Osprey's narrative.3/ Osprey also takes issue with the scoring of the two applications' narratives describing management company experience with permanent supportive housing. As noted, Mr. Aldinger evaluated these narratives and awarded each application the maximum ten points for this application section. Osprey's narrative identified Carrfour's not-for-profit subsidiary, Crossroads Management, LLC (Crossroads), as the manager for its proposed Liberty Village development. Although Carrfour was established in 1993, Crossroads was not created until 2007. Before Crossroads was created, Carrfour did not manage the housing projects it developed; instead, it turned the developments over to traditional property management companies. As Osprey's narrative acknowledges, this created problems, as the traditional management companies lacked the sensitivity and training to address special needs of permanent supportive housing tenants. Since 2007, Crossroads has been taking over management functions for Carrfour developments and is now managing most of the 16 developments listed in the developer experience narrative. Osprey's application was given credit for proposing management with ideal experience. For Duval Park's application, Boley is identified as the management company. In addition, Boley will engage Carteret Management Company (Carteret), which is owned and operated by James Chadwick, a principal of developer-partner Blue Sky, to assist with tax-credit compliance and other matters within Carteret's expertise during the initial phases of the project. Boley's specific experience managing supportive housing for veterans with special needs, previously detailed in the developer experience discussion above, could not reasonably be questioned. As described in the manager experience narrative, Boley manages 561 units of its own permanent supportive housing. Boley also manages 112 additional permanent supportive housing units owned by other not-for-profit companies (including an 88-unit development owned by ServiceSource). The management narrative describes the profile of the typical Boley-managed housing unit tenant as having mental illness, including post-traumatic stress disorder and/or substance abuse problems, requiring supportive services provided by Boley staff. These supportive services include mental health counseling, case management intervention, and transportation assistance--functions for which Boley will assume responsibility operating the proposed development. The narrative also describes Boley's property management personnel: seven housing staff who handle leasing, income certifications, and other leasing matters; eight maintenance staff to handle property repairs; three drivers who provide transportation; and four accounting staff for property management functions. Osprey does not articulate a specific reason why Duval Park's management company experience narrative should not be entitled to ten points, or why Osprey believes its narrative was qualitatively or quantitatively better than Duval Park's, except to the extent of Osprey's criticisms of the developer experience narratives. Yet Osprey's narrative for manager experience arguably should not fare as well as its narrative for developer experience, given the many more years of management experience demonstrated by Boley and the comparatively few years of management experience by the Crossroads management entity created by Carrfour in 2007. Nonetheless, Mr. Aldinger credited the Osprey application with the maximum points based on Crossroads' management experience since 2007. No credible evidence was presented to support the contention that Duval Park's management experience narrative was not entitled to at least the same number of points as Osprey's management experience narrative. As repeatedly acknowledged by all parties throughout the hearing, Florida Housing was fortunate to have received two excellent proposals by Osprey and Duval Park that were head and shoulders above the other responses. Florida Housing then was faced with the difficult task of deciding which, between two excellent choices, should receive the funding nod, if only one of the two could be funded. Based on the evidence and the findings above, Mr. Aldinger's assignment of the same number of points for developer experience (24 points out of a possible 25 points) and for management company experience (the maximum of 10 points) to the two excellent proposals was not clearly erroneous, arbitrary, capricious, or contrary to competition. His conclusion that both applicants demonstrated nearly ideal development experience and ideal management company experience for their proposals was reasonable. The evidence established that Mr. Aldinger made the points assignments he did after evaluating all of the relevant information he was allowed to consider pursuant to the RFP instructions. His scoring of these two application sections was shown to be an honest, good faith exercise of his expert judgment applied to sort out the various pros and cons of the responses. Osprey did not identify any statute or rule that it contends was violated by the scoring of the Osprey and Duval Park developer and management experience narratives. Osprey argued, but did not prove, that the scoring of these two applications was contrary to the RFP specifications. Osprey argued that Mr. Aldinger's evaluation was contrary to the RFP because he considered differences between the two projects in assessing developer experience. Osprey characterized this as double- counting, because the same aspects of the projects were scored in other sections. Osprey also contended that considering the differences between the two proposed developments and the different approaches by the two applicants was tantamount to applying different standards in evaluating the two applications. Osprey's criticism was not borne out by the evidence. Instead, Mr. Aldinger described a reasonable process, consistent with the RFP terms explaining that developer experience would be assessed in the context of the attributes of the target population described in the first section of the application, and also in context with the roles and responsibilities described for the developer team members in carrying out the proposed development. The same RFP instructions and the same standards were applied to the evaluation of the two applications; it was the applications that were different, not the standards.4/ Although not actually raised as a distinct challenge, Osprey suggested an additional argument in its PRO, not articulated in its written protest or in the Joint Pre-hearing Stipulation. Osprey argued in its PRO that Florida Housing should have used two evaluators to score the developer and manager experience narratives, as a "check and balance" against arbitrary scoring. Osprey's new argument stands in stark contrast to the only challenge to the evaluation process articulated in Osprey's written protest and in the Joint Pre-hearing Stipulation. Before the hearing, Osprey challenged the evaluation procedure used for two application sections that were scored by two evaluators. Rather than providing any check-and-balance comfort, the two- evaluator process was viewed as defective by Osprey because the initial scores independently assigned by each evaluator were reconciled in a public discussion meeting at which differences in scores were harmonized, meaning that when the initial scores differed, the evaluators agreed to adjust their initial scores. Osprey has established only that for some application sections, a single evaluator was used, while for other application sections, two evaluators were used and their separate scores were reconciled. No credible evidence was offered to prove that use of two evaluators was better than using one evaluator (or vice versa, as Osprey initially argued).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Housing Finance Corporation, enter a final order consistent with its initial decision to award funding for the Duval Park, Ltd., proposed development, and dismissing the formal written protests of Osprey Apartments, LLC, and Duval Park, Ltd. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2013.
The Issue The issue is whether the Department of Transportation's calculation of Petitioner's replacement housing payment determination was correct.
Findings Of Fact The Department is the state agency responsible for acquiring rights-of-way for highway construction and widening in the State of Florida. As part of a federally funded right-of-way acquisition project, the Department acquired the house that the Gheorghes were renting. The Gheorghes thus became eligible for relocation assistance under the Surface Transportation and Uniform Relocation Assistance Act of 1987, Public Law No. 100-17, codified at 42 U.S.C. § 4601 et seq. (Uniform Act).1/ Chris Scodius is a senior right-of-way specialist with American Acquisition Group, a consulting firm that provides acquisition, relocation, appraisal, cost estimating, and property management services. The firm provides these services to the Department pursuant to contract. In November 2011, Mr. Scodius was assigned the task of calculating a revised replacement housing estimate for the Gheorghes' relocation.2/ Mr. Scodius estimated that he has performed a similar function on over 50 relocation projects, including 25 projects involving the Department. Mr. Scodius gathered information on three comparables to the displaced dwelling and chose the one most comparable for the computation of the rental assistance payment. He selected the comparables by browsing websites such as Realtor.com and by visiting local realtors and property management companies to find dwellings that were functionally equivalent to the displaced dwelling. The dwelling from which the Gheorghes were displaced was at 1910 Southampton Road on the south side of Jacksonville, near Atlantic Boulevard and I-95. Mr. Scodius' report described it as follows: The single family house facing Southampton Road is a one-story, wood frame residence, built off-grade on a wood joist floor system with asbestos shingle siding and an asphalt shingle roof on a pitched rafter system, originally constructed 68 years ago in 1943. Interior floor coverings are hardwood and carpet, walls and ceilings are of plaster on lathe. A central system conditions air with heat and cooling. Two window air units supplement cooling capacity of the dwelling. The 1093 square foot conditioned portion of the house is divided into six rooms in addition to the single full bathroom. These six rooms include a living room and a dining room, a kitchen, a small office and three bedrooms. Attached to the front of this conditioned space is a small, covered entry stoop and steps with a small covered entry stoop at the rear behind the garage. There is a one-car enclosed garage attached to the west side of the house with doorway access only to the exterior of the house at the dirt driveway. The appraisal prepared for FDOT indicates that the house is of average quality construction and interior finish, is in average condition and indicates the building structure has a remaining economic life of about 35 years. The described home- site contains 4,495 square feet more or less. Ingress and egress frontage along Southampton Road is 50 feet. This dwelling is served by a public potable water supply and a public wastewater disposal system. The comparable dwellings were located at 7416 Silver Lake Terrace in Arlington; 2427 Sam Road, between University Boulevard and Dean Road; and 7913 Jasper Avenue in Arlington. None of the comparables was in the same neighborhood as the Southampton Road house, but none was more than 5.3 miles away and all were on the south side of Jacksonville in similar neighborhoods. Mr. Scodius chose the Silver Lake Terrace property as the most comparable and used it for the calculation.3/ This was a 1,549 square foot single family home consisting of three bedrooms and 1.5 bathrooms, built in 1980 with a recently renovated interior. Mr. Scodius described it as follows: Similar to the subject, this dwelling has one full bathroom and its conditioned space is further divided into 6 rooms. These rooms consist of a living room, dining room, kitchen and three bedrooms. Accessed from outside the interior space of the dwelling, but enclosed and under the carport roof is a small utility room equipped with connections for a washer and dryer. The general construction and material of the interior is similar to the subject, with hardwood, tile and carpeted floors and painted sheet-rock walls. This home is heated and cooled by an electric, central, ducted system. Potable water is from a public supply and wastewater disposal is by a private septic tank and drainfield system. Exterior features include a fenced back yard with wood storage building at the back property line. Before making his selection, Mr. Scodius visited the Southampton Road and Silver Lake Terrace properties to determine their comparability in person. He calculated that the Silver Lake Terrace property was 4.7 miles from the Southampton Road property and that the Silver Lake Terrace property was within two miles of a variety of shopping, restaurants, banks, schools and community services. He inspected the dwelling and determined that it met the standards of "Decent, Safe and Sanitary" (DS&S) prescribed by the Federal Highway Administration and the Uniform Act. Mr. Scodius concluded his report on the Silver Lake Terrace property as follows: This dwelling has been chosen as the number one comparable dwelling because of its distinct similarity to the subject in terms of overall room count, number of bedrooms, overall living area and close proximity to the subject neighborhood. Given its quiet, residential setting within easy access to shopping and being within 4 miles of the displacee's church of choice, this available rental dwelling appears to be the best suited of the three to this displaced family's particular needs and lifestyle. Mr. Scodius testified that he chose this house in the Arlington area because he believed it to be the most functionally equivalent comparable, and because it was actually superior to the Southampton Road property in which the Gheorghes were currently residing. Mr. Scodius explained that the number one comparable is used only as the basis for computing the amount of the rental assistance payment. Though the number one comparable must be available, the displaced persons are not required to move into it. They may take the rental assistance payment and move into a dwelling of their choosing. After choosing the number one comparable dwelling, Mr. Scodius prepared a computation of the rental assistance payment for the Gheorghes. To arrive at a final rental assistance payment number, the base rent for the current dwelling, including average utility payments over 12 months, is subtracted from the advertised monthly rental rate for the comparable, including information obtained from the Jacksonville Electric Authority (JEA) as to average utility payments for a representative 12-month period. The resulting number is then multiplied by the 42 months for which payments are available in order to arrive at a final lump sum rental assistance payment. In this case, the advertised market rent of $950.00 plus average monthly utilities of $217.50 as provided by the JEA for the Silver Lake Terrace property totaled $1,167.50. The base rent for the Southampton Road property was the actual monthly rental of $525.00 plus average monthly utilities of $437.21 for a total of $962.21. The difference of $205.29 was multiplied by 42 to arrive at a rental assistance payment of $8,622.18. The federal relocation assistance regulations provide that the maximum payment for rental assistance is $5,250.00. 49 C.F.R. § 24.402(a). However, the regulations also provide for "replacement housing of last resort" in situations where replacement dwellings are not available within the prescribed monetary limits. 49 C.F.R. § 24.404. The Department determined that the Gheorghes were eligible for a last resort payment as "the best alternative allowable within the established procedure in order to relocate Mr. Gheorghe and his family into a decent, safe and sanitary replacement dwelling in a timely manner." Therefore, the Gheorghes were paid $8,622.18, plus a $1,500.00 moving assistance fee. At the hearing, the Gheorghes4/ voiced several criticisms of the Department's methodology in selecting the number one comparable and its calculation of the rental assistance payment. First, Ms. Gheorghe complained that the chosen comparables were all several miles from the Southampton Road house despite the fact that there were three available rental properties in her current neighborhood. However, no evidence beyond Ms. Gheorghe's bare assertion was provided as to the existence of these rental properties, and no particulars were offered as to their functional equivalence to the Gheorghes' Southampton Road dwelling. Next, the Gheorghes claimed that the basis for comparison was skewed because the rent they paid on the Southampton Road house was well below market value. In renewing the Gheorghes' lease in 2006, the landlord acknowledged they were good longtime tenants and therefore charged them only $525.00 per month. Mr. Scodius testified that the federal guidelines do not focus on price but on functional equivalence. The amount of rent currently being paid by the Gheorghes was an irrelevant factor in his selection of comparables. Further, if it is true that the Gheorghes' rent was artificially low, this factor worked in their favor by raising the amount of rental assistance to which they were entitled. Under the formula, the current rent is subtracted from the advertised rent of the number one comparable. The lower the current rent, the higher the resulting rental assistance calculation. This objection by the Gheorghes is not a ground for disturbing the calculation made by Mr. Scodius. The Gheorghes complained that the Silver Lake Terrace house could not be considered comparable to the Southampton Road house because the latter was connected to city water and sewage, whereas the former, despite the statement in Mr. Scodius' report that it received potable water "from a public supply," was actually serviced by a well and septic tank. Mr. Knight reasonably testified that a well and septic tank provide the same function as city water and city sewer. The well provides potable water to the dwelling and the septic tank provides a means to discharge the waste. While some people might prefer one to the other, the well and septic tank are functionally equivalent to city water and sewage and meet the DS&S standard.5/ The Gheorghes attacked the comparability of the JEA bills for the Southampton Road house and the Silver Lake Terrace house. They claimed that the latter was unoccupied for a period of the time considered by Mr. Scodius in his calculation, and therefore the utility bill for the house was artificially low. However, Mr. Scodius plausibly testified that he specifically asked JEA for an average utility bill for the last 12 months in which the property was occupied. To the best of his knowledge, JEA gave him information on an occupied dwelling. It is noted that the average monthly utility bill for the Gheorghes' home on Southampton Road was almost exactly double that of the Silver Lake Terrace house. It is also noted that the average utility bills for the comparable houses on Sam Road and Jasper Avenue were $211.25 and $228 respectively, far closer to the Silver Lake Terrace bill than to the Gheorghes' Southampton Road dwelling. Unless JEA provided Mr. Scodius with bad information as to all three comparable houses, it appears that the Gheorghes' utility bill is the outlier among these comparables.6/ Ms. Gheorghe argued that she should have been reimbursed for pet deposits at her new residence because the Department was well aware at the outset of negotiations that she had a dog and more than one cat. However, the Gheorghes could point to no provision of the Uniform Act or its implementing rules that authorize or require the agency to pay the relocation costs for pets. Mr. Knight affirmatively testified that the Department is not authorized to consider pet deposits as expenses eligible for reimbursement. At the hearing, the Department did not contest Ms. Gheorghe's testimony that some of its representatives dealt high-handedly with the Gheorghes during the relocation process. Much of Ms. Gheorghe's presentation had less to do with the financial data in question than with what she considered her family's poor treatment at the hands of certain Department personnel. Ms. Gheorghe's complaints were heartfelt and appeared legitimate. It is hoped that being forced to undertake the time and expense of litigating this matter has demonstrated to the Department that good will and civility are not only desirable qualities in a public agency but cost effective ones as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying the petition of Stefan and Dana Gheorghe for an additional replacement housing payment. DONE AND ENTERED this 30th day of April, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2013.
The Issue The issues are whether Petitioners are entitled to replacement housing payments in connection with Respondent's acquisition of their mother's home, at which both Petitioners also reside, and whether Petitioner Pedro Bofill is entitled to business moving expenses for the business that he operates from his mother's former home.
Findings Of Fact Petitioners are siblings. By permission of Respondent, Petitioners presently reside in a single-family home at 540 Northwest Boulevard in Miami. Once part of a larger neighborhood, Petitioners' home now stands alone, as the other homes have been cleared in preparation for the construction of improvements to the nearby Dolphin and Palmetto Expressways. Until purchased by Respondent, the home at 540 Northwest Boulevard was owned by Petitioners' mother. For at least 20 years, Petitioner Pedro Bofill (Mr. Bofill) has resided in the home, which was divided so that he could live in one section and operate a small retail perfume business, and his mother and one or two sisters could live in the other section of the home. Petitioner Martha S. Bofill (Ms. Bofill) lived in the home up until the early 1990s, when she moved out after becoming married, but she returned a few years later after a divorce. The side occupied by Mr. Bofill has its own exterior entrance, kitchen, and bathroom, and the side occupied by Petitioners' mother and her two daughters has its own exterior entrance, kitchen, and bathrooms. One of Respondent's agents, an employee of Post, Buckley, Schuh, and Jernigan, Inc. (Post Buckley), first observed the home in 1988, as she was preparing the initial public information campaign for the Palmetto Expressway Improvements Project. Respondent identified nearly 40 residences to be demolished and over 80 families to be displaced by the project. On June 25, 2004, the Post Buckley representative knocked on the door of the residence located at 540 Northwest Boulevard. She was met by Mr. Bofill. The representative explained that Respondent would be purchasing this and surrounding homes and asked if they could speak. During their conversation, the representative told Mr. Bofill that the purpose of her visit was to determine the needs of the persons who would be displaced by the road project. Mr. Bofill informed the representative that the residence comprised two separate dwellings: his and that of his mother and sisters. The Post Buckley representative asked Mr. Bofill to complete a survey, and he agreed to do so. As reflected by the completed survey, which was filled out by the representative, pursuant to Mr. Bofill's responses, and signed by Mr. Bofill, Mr. Bofill stated that he paid $150- $250 monthly in utilities and $1200 monthly in "contract rent." He added that he "wants to move into same setting w/mother and continue to have home office." The Post Buckley representative asked to speak with Mr. Bofill's mother, but she was unprepared to receive a visitor. Mr. Bofill did not offer to take the representative to the other side of the house. However, he provided the information to the representative so she could complete a survey for Mr. Bofill's mother. This survey discloses that Ms. Bofill lives with her mother, the mother is retired, and Ms. Bofill is unemployed, as she is a student. This form indicates that Mr. Bofill pays for the utilities for both sides of the house. From this information, Post Buckley prepared a Needs Assessment Survey Report. This document helped Respondent determine the number of impacted families, the existence of any special needs, and whether sufficient properties in the market were available to accommodate the displaced persons. In September 2004, Post Buckley notified Petitioners' mother of the acquisition and relocation program that was now underway. The notification informs the homeowner of the right to obtain an independent appraisal, at Respondent's expense. On the same date, Respondent sent a letter to Petitioners' mother informing her of the process, including her entitlement to full compensation for the property acquired by Respondent and relocation assistance benefits. Although Petitioners are bilingual, their mother speaks only Spanish. The Post Buckley representative is bilingual, and the two letters sent to Petitioners' mother in September were sent in English and Spanish. By letter dated July 14, 2005 (English only), Respondent conveyed an offer to purchase the fee simple interest in the property owned by Petitioners' mother for $340,000. This is the acquisition payment and does not include relocation assistance, such as a replacement housing payment, which is described in greater detail below. A separate letter in English bearing the same date informed Petitioners' mother of her right to receive a replacement housing payment, if, among other things, "a comparable replacement dwelling costs more than the amount you are paid for your current dwelling." On August 11, 2005, the Post Buckley representative updated the surveys by forwarding them to the attorney of Petitioners' mother, as the attorney had asked the representative not to contact his client. The information did not change from the earlier surveys. On October 6, 2005, the Post Buckley representative and two representatives of Respondent met at the attorney's office with Mr. Bofill's sister. The meeting lasted 30-45 minutes and addressed the special needs of Petitioners' mother, such as that she required an outside walkway to reduce the risk of falling in the yard and needed to live near a hospital due to her age and medical condition. At this point, Post Buckley and Respondent assessed the information available and determined that Respondent should pay a single housing replacement payment to Petitioners' mother and no housing replacement payments to Petitioners. The available information was not limited to Mr. Bofill's survey response concerning his intent to relocate with his mother. Post Buckley and Respondent were aware that Petitioners, as adult children, had lived with their mother for many years, their mother was in poor health and living on a fixed income, Ms. Bofill has not been employed at anytime during this matter, and Mr. Bofill pays all of the utilities at the residence. Concluding from these circumstances that it was unlikely that Petitioners would establish separate residences from their mother, Respondent justifiably interpreted the absence of a request for separate residential housing payments from either Petitioner as evidence that they would continue to live with their aged mother. The decision of Respondent to proceed with a single housing relocation payment was further justified by later events. On November 15, 2005, a representative of Respondent spoke with Mr. Bofill by telephone about the effect of the payment of a separate housing relocation payment to him and his sisters, in terms of reducing the payment to their mother. Mr. Bofill said that he and his sisters would not pursue separate housing relocation payments. On December 1, 2005, Respondent signed a Statement of Eligibility for Supplementary Replacement Housing Payment for Owner (Statement of Eligibility). The Statement of Eligibility states that Petitioners' mother is eligible for a replacement housing payment of $120,000, based on the difference between the $460,000 cost of comparable replacement housing and the $340,000 acquisition price. By letter dated December 16, 2005, Petitioners' mother rejected the comparable replacement housing used in the December 1 letter, noting, among other things, that she lived solely on her Social Security payments of $550 per month and suggesting that comparable replacement housing would need to be in the range of $600,000 to $750,000. The clear implication of this letter, given the disparity between the mother's annual income of about $6000, and the substantial costs of maintaining a house in this price range, in terms of property taxes and utilities, for instance, was that she would continue to receive assistance from her children, who had lived with her, paid some rent, and helped her with the activities of daily living. By Revised Offer and Purchase Agreement, signed by Post Buckley and Petitioners' mother on December 22, 2005, and accepted by Respondent on March 8, 2006, Respondent agreed to acquire the home for $411,400. By Replacement Housing Payment Computation Explanation of the same date, Respondent's Relocation Project Manager stated to Respondent's Relocation Administrator that the home contained only one residential dwelling, the acquisition price would be $411,400, the selection of the proper comparable--with similar square footage and number of rooms to the acquired property--resulted in a replacement housing payment of $123,600, so that Respondent would pay Petitioners' mother an additional $123,600 in the form of a replacement housing payment. Petitioners' mother signed a new Statement of Eligibility--in both English and Spanish--on the same date, reflecting these new figures. The closing eventually took place on March 13, 2006. According to a letter written by Ms. Bofill, in February 2006, she learned that Respondent would pay a single housing relocation payment to her mother. She retained an attorney. Four days prior to the closing, she met with two representatives of Respondent and complained about not receiving any housing relocation payments. At the closing, the attorney sat with Ms. Bofill and her mother and explained each of the documents that she was signing, and at no time did Petitioners' mother indicate an intent not to proceed with a single housing relocation payment, payable to her. Respondent's finding of a single household is probably based on the extent to which Petitioners' mother and Petitioners necessarily pooled their resources to pay for basic necessities. However, the configuration of the home suggests separate households, so this Recommended Order will treat the home as comprising two households (although the ultimate result is the same under either analysis). One household was occupied by Mr. Bofill and the other was occupied by Petitioners' mother and her two daughters. However, neither Petitioner was entitled to a separate replacement housing payment under the present facts. As noted above, Mr. Bofill affirmatively stated his intent to relocate with his mother, and Respondent reasonably inferred the same intent by Ms. Bofill, based on the financial circumstances of her and her mother, their prior history of living together, and Ms. Bofill's failure to take affirmative action to claim a separate housing replacement payment until after the closing, at which Respondent obligated itself to pay a single such payment to Petitioners' mother. For the reasons explained below, Respondent's failure to pay a separate housing relocation payment to Mr. and Ms. Bofill was thus proper.
Recommendation It is RECOMMENDED that the Department of Transportation enter a final order denying the requests of Petitioners for housing relocation payments and business moving expenses. DONE AND ENTERED this 11th day of May, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2007. COPIES FURNISHED: James C. Meyers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Interim Secretary Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Susan Schwartz Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Martha S. and Pedro Bofill 540 Northwest Boulevard Miami, Florida 33126
The Issue Whether Petitioner's conduct, omissions or actions in failing to execute and provide required documentation regarding roadway maintenance contracts awarded by Respondent, warrants a finding that Petitioner is "non-responsible" for a two-year period and prohibited from contracting with the state for that period of time.
Findings Of Fact The undersigned makes the following findings of relevant and material facts: M&B bid on Department Contract E7J12 let on October 9, 2013. M&B bid on Department Contract E1N43 let on January 16, 2014. M&B bid on Department Contract E3082 let on August 13, 2015. M&B bid on Department Contracts E6K44, E6K45, E6K46, and E6K51 let on January 28, 2016. M&B bid on Department Contract E4R75 let on February 5, 2016. M&B does not have a certificate of qualification from the Department, nor is it required to have one. The Department is the state agency responsible for coordinating the planning of a safe and efficient state transportation system. To accomplish that, the Department relies on qualified contractors to provide roadway mowing and other landscaping maintenance services in order to meet Florida's transportation needs. Jonathan McIntyre owns and operates M&B, a company that provides mowing and landscaping maintenance services for the Department. The company was previously owned by his father. The company has been a contractor for the Department for over 30 years and has adequately performed many mowing and landscaping maintenance contracts for the state. "One hundred percent" of M&B's business is derived from mowing and landscaping maintenance contacts with the Department, and the state is its exclusive client. During the hearing, Alan Autry, manager of Contract Administration for the Department, provided an overview of the bidding process. The bidding process begins with a bid solicitation notice which is also known as the advertisement. The solicitation outlines the requirements for bidders and includes project specific information. It also establishes when bids will be received. Resp. Ex. 46. The next step in the bidding process is for the Department to receive and open bids on the date and time identified in the solicitation. Depending upon the nature of the bid, a technical review is done. Once the contract is awarded, the vendor is notified and sent an award letter along with the contract and other pertinent documents for execution. The award letter identifies the date for which the signed contract along with other documents are to be returned to the Department for review to ensure conformance with the solicitation and specifications. Subsequently, the Department has a specific timeframe to execute and enter into the agreement. After being awarded several maintenance contracts as the low bidder, the Department issued a Notice of Intent to Declare Non-responsible ("Notice") to M&B on March 28, 2016, concerning its failure to "execute" eight contracts that had been awarded.1/ A noteworthy document that must be returned to the Department, along with the signed contract, is a payment performance bond, also known as a contract bond (a document that is signed by or executed by the vendor, and the vendor's surety). Other documents that must be promptly returned include a contract affidavit and insurance confirmation, such as policies and certificates as required by the contract specifications or "specs." Resp. Ex. 46–48. According to contract specifications 3-6 and 3-7, if the Department does not receive the executed documents from the vendor within ten days, excluding weekends and holidays, the Department may annul the contract, award it to another vendor, or perform the work by other means. Resp. Ex. 47. The solicitations for the contracts in this case expressly incorporated contract specifications 3-6 and 3-7. Resp. Exs. 1, 5, 10, 16, 22, 28, 35, 40. The contracts at issue in this case are considered "low bid" contracts, meaning that the award of these contracts is made to the vendor that submits the lowest cost bid in response to the solicitation, without further inquiry or analysis. Resp. Ex. 48. Concerning Department Contract E7J12, M&B was the initial lowest bidder. The Department awarded the contract to M&B; however, M&B failed to return a signed contract form, contract bond, contract affidavit, and/or sufficient insurance documentation within the ten-day time period. Resp. Exs. 3, 4, 4b. Concerning Department Contracts E1N43, E3082, E6K46, and E4R75, M&B was also the initial lowest bidder. The Department awarded the contracts to M&B; however, M&B failed to return a signed contract form and required documents within the allotted time period. Resp. Exs. 7–9, 12-15, 30-33, 42–45. Concerning Department Contracts E6K44, E6K45, and E6K51, M&B was not the initial lowest bidder according to preliminary bid tabulations. However, the initial lowest bidder (another company) was found to be non-responsive, and M&B subsequently became the lowest bidder and was awarded those contracts as well. However, M&B also failed to return the executed contract and accompanying documents to the Department within the ten-day period. Resp. Exs. 18-21, 24-27, 36–39. There was no dispute regarding the calculation of the ten-day timeframe for M&B to sign the contract(s) and return the required contract documents. McIntyre admitted during testimony to never signing these contracts or obtaining bond approval "certificates" in a timely fashion for the subject contracts. In enforcement actions like this, the Department considers several factors to determine the appropriate length of time to declare a contractor non-responsible. The Department considers the severity of the situation and makes an evaluation on a case-by-case basis. Maintaining the integrity of the bidding process is also a focus of concern. Typically, the Department will impose six months to a year of non-responsibility per incident. Resp. Ex. 48. Throughout all the evidence and testimony presented, it was clear to the undersigned that a lack of contract work performance or anticipated work performance by M&B was not the ground(s) for finding M&B "non-responsible." Rather, it was M&B's failure to (1) sign the subject contracts and (2) provide required supporting documents that formed the basis for finding M&B non-responsible. Despite his candid testimony that he did not sign or timely provide the supporting documents, M&B raised several defenses claiming there was not sufficient cause to hold M&B "non-responsible." McIntyre explained that a series of events with the Department regarding another maintenance contract prevented him from complying with the bonding requirement. He argued that other conduct of the Department, inextricably intertwined with these contracts, belies any finding that M&B was at fault, or non-responsible.2/ More specifically, M&B asserted that the failure on the part of M&B to "execute" the 2016 contracts cited in the Department's Notice was caused by the Department's failure to timely pay M&B for five months of work which M&B had completed for the Department on a prior contract, Department Contract E4Q26. Stated differently, M&B argued that it did not obtain required performance bonds on the subject contracts let in 2016 because M&B did not have the funds needed to pay the performance bonds on those contracts. This in turn was due to the Department's failure to pay M&B for five months of work it had completed for the Department on a prior contract, Department Contract E4Q26.3/ As a part of this defense, evidence was presented that on March 8, 2016, M&B, through its counsel, sent a letter to the Department demanding payment that was overdue on Department Contract E4Q26. Pet. Ex. 1. This included a claim for payment for five months of work M&B had already completed for the Department. After M&B retained counsel and demanded payment, the Department, on March 28, 2016, mailed notice to M&B that the Department was declaring M&B "non-responsible." McIntyre testified that when M&B bid on the subject contracts in 2016, he anticipated that the Department would have timely and regularly paid it the monies the Department owed it on Department Contract E4Q26. The undersigned finds that based on his longstanding relationship with the Department and its practice of paying M&B each month on Department Contract E4Q26, this reliance was not unreasonable. By all accounts and the reasonable inferences drawn from the evidence and testimony of McIntyre, M&B would have been in a solvent financial position to post performance bonds on the subject contracts let in 2016, but for the fact that the Department had delayed monthly payments for work M&B had performed on Department Contract E4Q26. There was no persuasive or credible evidence presented to dispute this. Likewise, there was no persuasive evidence presented to show or suggest that there were any performance issues related to Department Contract E4Q26 which would have justified a material or significant offset or deduction of what was due to M&B on that contract. When Autry was reviewing the file and evaluating the enforcement options available to the Department, he was not aware that counsel for M&B had already written the Department and asserted that M&B had not been paid for five months of work M&B had performed on a prior contract, Department Contract E4Q26. The Department's ongoing monthly payment for work M&B had completed on Department Contract E4Q26 was interrupted and significantly delayed because of problematic language in the E4Q26 contract prepared by the Department. More specifically, the Department had been paying M&B for work on Department Contract E4Q26 on a monthly basis, for seven months. At some point, the Department was audited by the Department of Financial Services and learned that monthly payments were not permitted under that contract's language, as written. In a legitimate and good faith effort to correct the payment delay, the Department drafted and requested that M&B sign a supplemental contract that it felt would have corrected the payment delay. As it turned out, when it submitted the supplemental contract to M&B, nearly all 12 months of the work under Department Contract E4Q26 had been completed, and only a few weeks remained on that contract. McIntyre, not being particularly skilled at understanding supplemental contracts, was skeptical and concerned that signing a supplemental contract could jeopardize his ability to insist on getting all the money he was due on Department Contract E4Q26. While McIntyre grappled with how to respond to the supplemental contract proffered by the Department, Michael E. Sprayberry was aware and mulling over the March 8, 2016, letter from M&B's counsel demanding that the Department pay M&B $66,666.65 owed for the five months of work it had completed. In M&B's counsel's March 8, 2016, letter to the Department, which attached M&B's Invoice No. 8 for $66,666.65, he asked for an explanation as to why payment was not being made to M&B and why the Department was asking M&B to sign a supplemental contract when the contract had been completed by M&B. The Department failed to provide any detailed explanation before issuing its Notice on March 28, 2016. Other important events are worth noting. Prior to issuance of the Notice declaring it non-responsible, M&B had obtained four necessary Bond Approval Advisories dated March 10 and 14, 2016, which verified that all the subject contract bonds were pre-approved by the insurer and were ready to be issued pending receipt of the premium payments. Pet. Composite Ex. 4.4/ Payment to M&B on Department Contract E4Q26 in the amount of $48,102.65 finally came from the Department on May 16, 2016. Pet. Ex. 5.5/ Sprayberry acknowledged that the Department quit paying M&B after the seventh month on Department Contract E4Q26, which was a 12-month contract. Sprayberry testified that the Department was "very surprised" when the Department of Financial Services directed the Department to discontinue paying M&B because of the language of the contract entitling M&B to be paid monthly.6/ Sprayberry forthrightly acknowledged that M&B should have been paid on contract #E4Q26 and that he had difficulty understanding the language of the contract which prompted the Department of Financial Services to suddenly direct the Department to stop paying M&B on a monthly basis. See generally Pet. Ex. 6. Sprayberry also acknowledged that the "snafu" the parties experienced with the payment provisions of Department Contract E4Q26 was, indeed, "a problem" that "we need to get solved." Insofar as the interruption in monthly payments under Department Contract E4Q26 was concerned, Sprayberry went on to add that the Department was "very surprised" by the audit response by the Department of Financial Services and "didn't count on that." He went on to explain that the Department was also certain that "McIntyre didn't count on that" (meaning the abrupt discontinuation in monthly payments). Once M&B was paid the monies that the Department owed on Department Contract E4Q26, M&B was awarded two additional Department contracts for which it timely returned all required documents and the performance bonds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation reconsider its preliminary decision and reverse its determination that M&B was non-responsible. DONE AND ENTERED this 5th day of December, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 2016.
