The Issue The issue in this case is whether Respondent, Frank J. Polacek, V, committed the violations alleged in an Administrative Complaint filed with Petitioner March 15, 2006, DBPR Case Nos. 2005-036101, 2005-035843, 2004-056690, 2005- 045647, and 2005-034560, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to engage in contracting in the State of Florida; and the investigation and prosecution of complaints against individuals who have been so licensed. See Ch. 689, Fla. Stat. Respondent, Frank J. Polacek, V, is and has been at all times material hereto a licensed certified general contractor in Florida. Mr. Polacek's license number is CG C059603. At all times material hereto, the status of his license has been "Current, Active." At all times material, Mr. Polacek was certified as doing business as Endeavor Development, Inc (hereinafter referred to as "Endeavor"), a Florida corporation. Endeavor possessed a certificate of authority as a qualified business organization. The Department has jurisdiction over Mr. Polacek's license. Dalton Design, Inc.; Department Case No. 2004-056690. On June 29, 2004, Terri Ferrando, owner of Dalton Design, Inc. (hereinafter referred to as "Dalton Design"), entered into a contract with Mr. Polacek, acting as Endeavor (hereinafter referred to as the "Dalton Design Contract"). Pursuant to the Dalton Design Contract, Mr. Polacek agreed to renovate a bathroom of an apartment owned by a client of Dalton. The apartment is located in Delray Beach, Florida. Dalton Design agreed to pay Mr. Polacek $15,871.00 in exchange for his services. Mr. Polacek failed to include notification of the existence and availability of the Construction Industry Recovery Fund in the Dalton Design Contract. See § 489.1425(a), Fla. Stat. As contemplated by the Dalton Design Contract, Dalton Design paid $7,935.50, or 50 percent of the total contract price, to Mr. Polacek as a deposit. The deposit was paid via check dated June 29, 2004. A small of amount of work, consisting of demolition, was commenced on the Dalton Design Contract by Mr. Polacek. The demolition work was the only work performed by Mr. Polacek. The work performed by Mr. Polacek was significantly less than the amount he had been paid by Dalton Design. On or about May 16, 2005, Mr. Polacek abandoned the Dalton Design Contract when he wrote a letter to Ms. Ferrando and Dalton Design. Mr. Polacek stated the following in the letter: Please acknowledge this written notice that as a result of hurricane frances we will be unable to provide Dalton designs [sic] or their related customers with construction services this will be effective immediately and a partial refund of construction moneys will be refunded within one week. The refund was never made, despite efforts of Ms. Ferrando to contact Mr. Polacek by telephone, in writing, and in person. The Dalton Design Contract provided that "August 20, 2004, is the last day for work, and everything must be completed at that time." Because Mr. Polacek failed to perform work on the project and in light of his termination letter, Ms. Ferrando arranged to have the project completed by another contractor. That contractor performed the same work formerly agreed to by Mr. Polacek. The total costs of completing the Dalton Design Contract work was $16,877.33 and was paid by Dalton Design. Damages sustained by Dalton Design as a result of Mr. Polacek's abandonment of the Dalton Design Contract include the $7,935.50 deposit plus the amount of $1,006.33 paid to complete the project in excess of the original contract price ($16,877.33 minus $15,871.00) or a total of $8,941.83. The Department incurred costs investigating Case No. 2004-056690 of $616.88. The evidence failed to prove that Mr. Polacek failed to obtain the necessary permits or inspections for the work performed on the Dalton Design Contract. Palm Beach Biltmore Condominium Association; Department Case No. 2005-045647. In August 2004, Richard Brooks, the manager of the Palm Beach Biltmore Condominium Association (hereinafter referred to as the "Biltmore"), entered into a contract with Mr. Polacek, doing business as Endeavor (hereinafter referred to as the "Biltmore Contract"). The Biltmore Contract provided, in pertinent part, that Mr. Polacek would provide the following services to Biltmore: Propose to remove and replace two matching exterior access ladders to elevator service shafts. Remove all existing steel support brackets and prepare new surface for the installation of the new aluminum ladders. . . . Provide and install new 16' custom fabricated alluminum [sic] ladders same locations with no powder coated finish. In exchange for the foregoing services, Biltmore agreed to pay Mr. Polacek $5,000.00, "50% of the total sum due upon agreement; 50% of total sum due promptly upon completion." Biltmore paid Mr. Polacek $2,500.00 via check on August 18, 2004. Despite having been paid half the Biltmore Contract price, Mr. Polacek performed none of the services he had agreed to perform. Mr. Brooks made several efforts to communicate with Mr. Polacek by telephone and mail, but was unsuccessful. Mr. Polacek abandoned the Biltmore Contract for well in excess of 90 days. Mr. Polacek failed to refund any amount of the $2,500.00 down-payment paid to him by Biltmore. Thus Biltmore suffered damages of $2,500.00. The Department incurred costs investigating Case No. 2005-045647 of $266.33. A. Carter Pottash; Department Case No. 2005-034560. On August 9, 2004, A. Carter Pottash, M.D., entered into a contract with Dr. Polacek, doing business as Endeavor (hereinafter referred to as the "Pottash Contract"). The Pottash Contract provided, in pertinent part, that Mr. Polacek would remodel three condominium apartments owned by Dr. Pottash, converting the three apartments into one living space. In exchange for his services Mr. Polacek agreed to provide under the Pottash Contract, Dr. Pottash agreed to pay Mr. Polacek $170,821.00, "50% of the total due upon agreement; 35% of total sum due at 50% of completion; 15% of total sum due upon completion." Mr. Polacek failed to include notification of the existence and availability of the Construction Industry Recovery Fund in the Pottash Contract. See § 489.1425(a), Fla. Stat. As contemplated by the Pottash Contract, Dr. Pottash paid Mr. Polacek a total of $155,322.50, or 90 percent of the total contract price, between August 19, 2004, and October 22, 2004. The payments were made via check and wire transfer. Mr. Polacek commenced work on the Pottash Contract by performing demolition work, installing drywall, and performing some but not all of the finishing work. After November 1, 2004, no work was performed on the Pottash Contract by Mr. Polacek. Between November 1, 2004, and January 5, 2005, having invested a significant amount of money in the project, Dr. Pottash made numerous unsuccessful attempts via telephone, personal visits, and in writing to contact Mr. Polacek. As a result of the work Mr. Polacek did perform, he incurred financial obligations to sub-contractors. Some of the obligations were not paid by Mr. Polacek, resulting in three Claims of Liens being filed against Dr. Pottash's property. The liens, each one for $2,166.50, were filed by T & F General Contracting, Inc. (hereinafter referred to as "T & F"). T & F had performed some of the finishing work on the project. On or about March 22, 2005, Mr. Polacek abandoned the Pottash Contract when he wrote a letter to Dr. Pottash, in which he stated the following: Please acknowledge this written notice that ENDEAVOR DEV. INC. will no longer be performing any construction related services to you at the Palm Bch. Biltmore. By law I am bound to cancel all my permits or transfer them to your new contractor. I will inform the Palm Bch. Bldg. Dept. in writing. I am truley [sic] sorry for the problems we have had between us. I want to do whatever is possible to resolve this situation in your favor. Please respond if you are willing. Mr. Polacek did nothing to resolve his failure to perform. Nor did he make any refund of the moneys paid to him under the Pottash Contract, which exceeded the amount paid by Dr. Pottash to Mr. Polacek. Due to Mr. Polacek's failure to perform, Dr. Pottash had to hire other contractors to complete the project. He did so, acting as his own general contractor, completing the project in essentially the same manner contemplated by the Pottash Contract. Dr. Pottash incurred costs to complete the Pottash Contract totaling $90,280.77. These costs were paid by checks ($58,716.48) and credit card ($31,564.29). Dr. Pottash also paid a total of $3,653.50 to remove one of the three T & F liens. The total cost of completing the Pottash Contract incurred by Dr. Pottash was $93,934.27. Damages sustained by Dr. Pottash as a result of Mr. Polacek's abandonment of the Pottash Contract total $78,435.77, calculated as follows: Total Contract Price: $170,821.00 Amount Paid: 155,322.50 Amount To Be Paid: $ 15,498.50 Amount Paid To Complete: $ 93,934,27 Amount To Be Paid: 15,498.50 Total Financial Harm: $ 78,435.77 The Department incurred costs investigating Case No. 2005-034560 of $565.61. Alexander Rentz and Diane Jackson; Department Case No. 2005-036101. On January 13, 2005, Alexander Rentz and Diane Jackson, entered into a contract with Mr. Polacek, doing business as Endeavor (hereinafter referred to as the "Rentz/Jackson Contract"). The Rentz/Jackson Contract provided, in pertinent part, that Mr. Polacek would make repairs to their Lake Park, Florida, home caused by hurricane damage. In exchange for Mr. Polacek's services, Mr. Rentz and Ms. Jackson agreed to pay him $26,346.10, "1/3 upon agreement/ 1/3 at 50%/ 1/3 at complete." On January 14, 2005, an addendum to the Rentz/Jackson Contract was executed by Mr. Polacek whereby he agreed to remove and replace carpeting and padding. In exchange for these services, Mr. Rentz and Ms. Jackson agreed to pay an additional $1,520.00. Mr. Polacek failed to include notification of the existence and availability of the Construction Industry Recovery Fund in the Rentz/Jackson Contract. See § 489.1425(a), Fla. Stat. Mr. Rentz and Ms. Jackson paid Mr. Polacek a total of $13,933.05 via three checks issued on January 13, 2005, February 1, 2005, and February 11, 2005. Mr. Polacek commenced work on the Rentz/Jackson Contract by partially taking down a wooden fence on the property. After taking down the fence, no work, not even the removal of the fencing material, was performed on the Rentz/Jackson Contract by Mr. Polacek. On February 22, 2005, after efforts to get Mr. Polacek to return to the job failed, Mr. Polacek wrote a letter to Mr. Rentz and Ms. Jackson in which he abandoned the Rentz/Jackson Contract, stating: Please acknowledge this written notice. Since we have not heard from you w/ a decision on whether to proceed w/your job we can only assume you want to terminate the contract. Out last conversation on 2-15-05 Ms. Jackson was irate and threatened to sue our Co. if we could not produce roofing shingles. All supply Co's are on a back log and shingles are being allocated. We do not controll [sic] the production of shingles and we warned you of this problem at the start of our engagement. Fax us a letter of termination and the total of all $ will be returned in 30 days. Mr. Polacek's explanation concerning the unavailability of shingles, even if it had been supported by evidence at the final hearing, which it was not, fails to explain why none of the other work called for in the Rentz/Jackson Contract was performed. Mr. Rentz and Ms. Jackson did not at anytime terminate their contract. Instead, they made numerous efforts to get Mr. Polacek to carry out the terms of their agreement. Efforts to discuss the matter with Mr. Polacek were ultimately unsuccessful. Due to Mr. Polacek's failure to perform, Mr. Rentz and Ms. Jackson were required to hire another contractor, Built Right Construction, Inc. (hereinafter referred to as "Built Right"), to complete the project. The same services contemplated by the Rentz/Jackson Contract were ultimately performed by Built Right. The contract price for Built Right's services, including contract addendums, totaled $33,293.95. This amount was paid via checks by Mr. Rentz and Ms. Jackson. Damages sustained by Mr. Rentz and Ms. Jackson as a result of Mr. Polacek's abandonment of the Rentz/Jackson Contract totaled $19,360.90, calculated as follows: Total Contract Price: $27,866.10 Amount Paid: 13,933.05 Amount To Be Paid: $13,933.05 Amount Paid To Complete $33,293.95 Amount To Be Paid: 13,933.05 Total Financial Harm: $19,360.90 54. The Department incurred costs investigating Case No. 2005-036101 of $457.00. The evidence failed to prove that Mr. Polacek failed to apply for any permits required by the Rentz/Jackson Contract or that Endeavor was not in compliance with fictitious-name statutes. Nancy Sarro; Department Case No. 2005-035843. On April 17, 2005, Nancy Sarro, entered into a contract with Mr. Polacek, doing business as Endeavor (hereinafter referred to as the "Sarro Contract"). The Sarro Contract provided, in pertinent part, that Mr. Polacek would remodel the Sarro residence located in Jupiter, Florida. In exchange for Mr. Polacek's services, the Sarros agreed to pay Mr. Polacek $23,919.75, "50% of total sum upon agreement; 25% of total sum at 50% complete; 15% of total sum at 75% complete; 10% of total sum at 100% complete." Mr. Polacek failed to include notification of the existence and availability of the Construction Industry Recovery Fund in the Sarro Contract. See § 489.1425(a), Fla. Stat. Ms. Sarro paid Mr. Polacek a total of $11,039.87, or 46 percent of the total contract price, via check issued April 17, 2005. Mr. Polacek commenced work on the Sarro Contract by demolishing a small wooden deck at the rear of the Sarro residence and removing the front door of the residence, leaving the residence without a front door. After taking performing the foregoing work, no further work was performed on the Sarro Contract by Mr. Polacek. On May 16, 2005, after efforts to get Mr. Polacek to return to the job failed, Mr. Polacek wrote a letter to Ms. Sarro in which he abandoned the Sarro Contract, stating: Please acknowledge this written notice that Endeavor Dev. Inc. will no longer be providing construction services to you at . . . . My attorney will contact you to discuss the matter of our deposit. Do not attempt to contact Ms. Jessica Jolley or her family members regarding this matter. They are going to press charges against you for harassment. Endeavor Dev. Ind. Has had no in-tent [sic] to defraud or abandone [sic] your job and Ms. Jolley is not an employee of the Co. nor did she recieve [sic] anymoneys from you so please leave my girlfriend out of this matter. I will be contacting you via my attorney. Ms. Sarro made attempts to contact Mr. Polacek, but was unsuccessful. At no time, however, did Ms. Sarro abandon or otherwise attempt to terminate the Sarro Contract. Mr. Polacek subsequently sent a second letter to Ms. Sarro promising that the money paid as a deposit on the Sarro Contract would be refunded. Mr. Polacek did not, however, return any moneys to Ms. Sarro or complete any further work on the Sarro Contract. Damages sustained by Ms. Sarro as a result of Mr. Polacek's abandonment of the Sarro Contract totaled $11,039.87. The Department incurred costs investigating Case No. 2005-035843 of $368.76. Incompetency or Mismanagement in the Practice of Contracting. Mr. Polacek caused damages on the five contracts at issue in this case totaling $120,278.37. He did so without explanation to the individuals for whom he had contracted with.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department: Finding that Frank Joseph Polacek, V, committed the violations alleged in Counts I, IV through VII, IX through XII, and XV through XXV of the Administrative Complaint; Dismissing Counts II, III, VIII, XIII, and XIV of the Administrative Complaint; and Imposing an administrative fine in the total amount of $26,000.00; requiring that Mr. Polacek pay restitution on the five contracts equal to the amount of damages found in this Recommended Order; requiring that Mr. Polacek pay $2,275.58 as the costs of the investigation and prosecution of this matter; and that his license be permanently revoked. DONE AND ENTERED this 20th day of September, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 20th day of September, 2006. COPIES FURNISHED: Jeffrey J. Kelly, Esquire Department of Business and Professional Regulation Post Office Box 1489 Tallahassee, Florida 32302 Frank Joseph Polacek, V 5245 Center Street Jupiter, Florida 33401 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether respondent on several occasions aided an unlicensed contractor to engage in contracting by obtaining permits on respondent's license for contracting jobs performed by the unlicensed contractor; Whether respondent committed the statutory violations alleged; and If so, whether respondent's license should be suspended or revoked, or whether some other penalty should be imposed.
Findings Of Fact At all times material to the Administrative Complaint, respondent was a certified general contractor in Florida holding License No. CG C000572. Johnnie T. Thomas is the president of J. T. Thomas Construction Company. Mr. Thomas is not a licensed contractor in the State of Florida. Although respondent has used his license to qualify several corporations, the last being Julius Isaac & Association, Inc., respondent never qualified J. T. Thomas Construction Company. Indeed, J. T. Thomas Construction has never been qualified by any licensee. During the time period relevant to this action, J. T. Thomas Construction Company was the name used by Mr. Thomas to engage in the contracting business. On July 25, 1983, J. T. Thomas Construction Company contracted with Hazel N. Jones for the construction of a residence at 11729 Rock Hill Road, Thonotosassa, Florida, in Hillsborough County. Johnnie Thomas signed the contract on behalf of J. T. Thomas Construction Company as "President and Builder." Ms. Jones did not know that Mr. Thomas was unlicensed. James Montjoy drew the plans for the house and recommended Thomas as the builder. The total price for the house was $75,500. The house was started in September of 1983, and on January 30, 1984 final payment was made. After moving into the house, Ms. Jones discovered several problems. In June of 1984 an energy check found that the home was not properly insulated; however, this was apparently corrected in May of 1985. Ms. Jones had several other problems with the home and sent a "punch-list" to Mr. Thomas setting forth the items that needed to be corrected. Although Mr. Thomas admitted at the hearing that there were items that should have been corrected on the punch-list, he also admitted that he did not correct them because he disputed other claims of Ms. Jones. The building permit application for Ms. Jones' home was signed by the respondent. On the building permit application, the contractor was listed as Julius Isaac and Association, Inc. The building permit was issued on August 15, 1983. It listed Julius H. Isaac and Julius Isaac and Association, Inc. as the contractor. The building permit was signed by Julius H. Isaac as agent. Ms. Jones never met Mr. Isaac, never saw him and never knew that he was involved in any way in the construction of her home. In late 1984, Ms. Catherine Farragut, the owner of a building located at 1704 North Nebraska Avenue, Tampa, Florida, contracted with J. T. Thomas to have her building remodeled. Ms. Jones recommended Mr. Thomas to Ms. Farragut before Ms. Jones began to experience problems with Mr. Thomas. Ms. Farragut was not aware that Mr. Thomas was not a licensed contractor. The remodeling of the building was completed in early 1985. The permit for the interior remodeling of the offices at 1704 North Nebraska Avenue was issued on July 23, 1984 to Julius Isaac & Association. Ms. Farragut did see Isaac at the job site in the central parking area; however, Mr. Thomas never advised Ms. Farragut that respondent was involved with the project. On August 20, 1985 J. T. Thomas Construction Company contracted with Evelyn S. Williams to construct a residence at 3620 East North Bay Street, Tampa, Florida. The contract price for the home was 66,000 and payments by check were made to Johnnie Thomas in intervals. Construction on the home began in November 1985. Ms. Williams moved into the home in August of 1986. She discovered some problems with the house, and gave Mr. Thomas a list of the items that needed to be corrected. Mr. Thomas corrected all the items but one. Ms. Williams still has a problem with the roof getting moldy due to water retention. A permit was issued by the City of Tampa Building Department on November 20, 1985, for construction at 3620 East North Bay Street. The permit was issued to Julius Isaac and the contractor of record is stated as Julius Isaac d/b/a Julius Isaac & Associates. Ms. Williams never met Mr. Isaac or saw him; however, Ms. Williams did not go to the job site during construction since the mortgage company was supposed to periodically inspect the house during construction. Ms. Williams was not aware that Mr. Thomas was unlicensed. On August 28, 1986, J. T. Thomas Construction Company entered into a written contract with Ms. Verlie Nelson to construct a residence at 8105 Jad Drive for a price of $102,560. Ms. Nelson thought that Mr. Thomas was a licensed contractor. She never saw Mr. Isaac at the job site, however, she was rarely there because Sun Coast Federal Credit Union was paid to do the inspections. On October 16, 1986, respondent applied for a building permit for 8105 Jad Drive. John and Augusta Thomas were listed as the owners and Julius Isaac & Association, Inc., was listed as the general contractor for the project. On November 7, 1986, the permit was issued by the Hillsborough County Building Department. Julius H. Isaac was listed as the applicant and contractor. John and Augusta Thomas were listed as the owners of the property at 8105 Jad Drive. Mr. Thomas admitted that J. T. Thomas Construction Company built the homes for Ms. Jones, Ms. Nelson and Ms. Williams, and did the renovation on the building owned by Ms. Farragut. Mr. Thomas received the payments for the projects, hired and paid the subcontractors and supervised construction. He also managed the daily affairs of J. T. Thomas Construction Company. J. T. Thomas Construction Company was formed in 1971 under the name Thomas (J. T.) Construction Company. However, the company, as a corporate entity, was dissolved by proclamation in 1973. J. T. Thomas' brother Leslie was the secretary of the corporation and a licensed contractor. He obtained the building permits for the company until be became ill. Thereafter, respondent obtained the building permits for J. T. Thomas Construction Company. Respondent knew that Mr. Thomas was not licensed and could not get the permits himself. Respondent is not a salaried employee of J. T. Thomas Construction Company, and he received no compensation for his services although he was reimbursed for the actual cost of obtaining the permits. Other than obtaining the permits, respondent's only connection with Mr. Thomas' construction projects was to visit job sites before inspections or go to a site if Mr. Thomas asked for his help with a construction problem. However, there was no competent evidence establishing that respondent ever went to the particular job sites involved in this case. Respondent had no responsibilities in connection with the projects and had no authority to take any actions. In essence, respondent was simply "helping" a long time friend. Respondent has been licensed since 1968, and there was no evidence presented of any prior violations or any prior complaints.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order finding respondent guilty of the act set forth in Section 489.129(e), Florida Statutes, and imposing an administrative fine of $1,500. DONE AND ENTERED this 27th day of May, 1988, in Tallahassee, Florida. DIANE A. GRUBBS 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 27th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5586 Rulings on petitioner's proposed findings of fact by paragraph: 1-8 Accepted generally. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Julius H. Isaac 421 Ella Mae Avenue Tampa, Florida 33602 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil Stephen F. Hanlon, Esquire General Counsel BARNETT, BOLT & KIRKWOOD Department of Professional Post Office Box 3287 Regulation 100 Twiggs Street 130 North Monroe Street Sixth Floor Tallahassee, Florida 32399-0750 Tampa, Florida 33602
The Issue Whether the Respondent committed the following acts on the five contracting jobs set forth in the Amended Administrative Complaint: Gross negligence, incompetence, and/or misconduct. Financial mismanagement or misconduct. Failure to properly supervise contracting activities he was responsible for as qualifying agent. Job abandonment on all five construction projects. Aiding and abetting an unlicensed contractor to engage in the contracting business. Engaging in a contracting business under a name not on his license and not qualified with the state.
Findings Of Fact At all times material to these proceedings, the Respondent, Raymond Robert Suarez, was licensed as a certified general contractor in Florida, and held license number CG C0011988. The Respondent was the qualifying contractor for Suarez Brothers Construction Company. He was not registered with the Florida Construction Industry Licensing Board as the qualifying agent for Suarez Brothers of Pinellas, Inc. There were two shareholders in Suarez Brothers Construction Company: Frank B. Suarez and Raleigh Suarez. Corporate responsibilities were as follows: Frank B. Suarez, President Abdelia Arguelies, Vice President Raleigh Suarez, Secretary/Treasurer Raymond R. Suarez, Responsible Managing Employee and Qualifying Contractor The corporation was based in Hillsborough County, Florida. On or before February 24, 1987, a corporation was created known as Suarez Brothers of Pineilas, Inc. Craig O. Tennant became president and Joseph Scott Suarez became vice president. The corporation engaged in the construction business and built single-family residences in Pinellas County, Florida. The business was in the county adjoining Hillsborough County, where Suarez Brothers Construction had built homes for ten years and had gained a good reputation throughout the Tampa Bay area, including Pinellas County. The name of the new corporation with its base of operations in Pinellas County, was deceptively similar to that of Suarez Brothers Construction Company. The close resemblance of the name was intentionally misleading, as Suarez Brothers of Pinellas, Inc. attempted to benefit from the reputation for quality construction gained by Suarez Brothers Construction in which the father of Joseph Scott Suarez, Frank B. Suarez, was president and his brother, Raymond R. Suarez, was qualifying contractor. This is evidenced by the construction contract used by Suarez Brothers of Pinellas, Inc., written representations to building departments of a legal connection between the two companies, and the use of the name of the same qualifying contractor on applications for building permits. In the construction contract used by Suarez Brothers of Pinellas, Inc., it was represented that the company had been a Florida builder since 1949. The people actually engaged in building since 1949 were the father Frank B. Suarez, and the uncle, Raleigh Suarez. These two people were not members of the new company. On four of the five projects for which Suarez Brothers of Pinellas, Inc. had written contracts, the name Suarez Brothers Construction was given to the building departments as the contractor of record instead of the actual corporate name. Raymond R. Suarez was named as the contractor, and his contractor's license number was used on the applications for building permits for the five Suarez Brothers of Pinellas, Inc. contracts which are the subject of the complaint in this proceeding. There was no evidence presented at hearing to demonstrate that Raymond R. Suarez knowingly permitted his name and contractor's license number to be used by either the president or vice-president of Suarez Brothers of Pinellas, Inc. to obtain the building permits for the construction of the residence for Robert D. and Norma L. Ganoe (Case #0110319) or the construction of the residence for Reinhold and Monty Brooks (Case #0106921). On or about June 25, 1987, Suarez Brothers of Pinellas, Inc. contracted with James B. Hughes, Jr. to build a home for $190,000.00 at the following location: 9985 Lake Seminole Drive West, Largo, Florida. The building permit issued for the construction on September 29, 1987, was signed by Raymond Suarez, and his contractor's license number was given as the qualifying contractor for Suarez Brothers Construction of Pinellas on the Hughes project. On February 4, 1988, the contractor on the project was changed to Robert R. O'Andrea. Between September 29, 1987 and February 4, 1988, various subcontractors and materialmen hired by Suarez Brothers of Pinellas, Inc. to provide services or supplies on this job were not paid. Joseph Scott Suarez had been given the funds to timely pay the subcontractors and materialmen by James B. Hughes, Jr. and Wonzel M. Hughes, his wife. Joseph Scott Suarez misappropriated the funds entrusted to him as an officer of Suarez Brothers of Pinellas, Inc. by Mr. and Mrs. Hughes for his own use. As a result, $24,763.63 worth of subcontractors and materialmen's perfected liens were placed against the real property for services and supplies obtained during the time period Raymond R. Suarez was the qualifying contractor of record. Raymond R. Suarez did not have the liens removed from the property within thirty days after the date of such liens, nor has he attempted to have the liens removed at a later date. The Respondent, as qualifying contractor, knew or should have known that the liens were in existence and had been perfected. On or about August 10, 1987, Suarez Brothers of Pinellas, Inc. contracted with Richard and Linda Vozne to construct a home for $121,041.00 at the following location: 316 Seventh Avenue North, Tierra Verde, Florida. The permit for construction was issued by the Pinellas County Department of Building Inspection on December 12, 1987. Raymond Suarez signed the permit as contractor, and his contractor's license number was given as the qualifying contractor for Suarez Brothers Construction. On July 15, 1988, the contractor for the project was changed to Linda J. Vozne, one of the owners of the property. Between December 12, 1987 and July 14, 1988, claims of lien were filed and perfected against the Vozne project in the amount of $16,047.18 for supplies and services ordered while Raymond Suarez was contractor of record. Suarez Brothers of Pinellas, Inc. had received $10,000.00 front money to begin construction when the construction loan entered into by Richard and Linda Vozne with Barnett Bank of Pinellas County closed on November 13, 1987. One hundred three thousand dollars ($103,000.00) of the loan disbursements were made to the construction company by the bank before the owners removed it from the project. The funds disbursed to Suarez Brothers of Pinellas, Inc. were not used to pay the subcontractors who had performed work and provided supplies on the project, as required by the construction contract. They were misappropriated to another use not related to the Vozne construction project. Raymond R. Suarez did not have the liens removed from the property by payment within thirty days after the date of such liens, nor has he attempted to have them removed at a later date. The Respondent, as qualifying contractor, knew or should have known that the liens were in existence and had been perfected. On or about October 28, 1987, Suarez Brothers of Pinellas, Inc. contracted with Keith A. Phillips to build a home for $134,621.00 at the following location: 5944 Bayview Circle South, Gulfport, Florida. The application for a building permit from the City of Gulfport was dated December 22, 1987, and was signed by Raymond R. Suarez. The contractor was designated as "Suarez Brothers" and the Respondent's license number was given as the qualifying contractor on the Phillips project. In September 1988, Suarez Brothers of Pinellas, Inc. was terminated as the project contractor by Keith Phillips and Cynthia S. Phillips, his wife, although no changes were made in the public records of Gulfport. Between October 28, 1987 and September 1988, the company did not complete construction in a timely manner. Pursuant to contract, the project was to be completed within 182 days. No additional periods of time were granted by the owners to the contractor and none were requested. During the period of time Raymond R. Suarez was the qualifying contractor on the Phillips project, eleven thousand one hundred fifty-three dollars and twelve cents ($11,153.12) worth of subcontractor and materialmen liens were perfected as they were not paid by the construction company. The funds to pay for the materials and labor which resulted in the claims of lien had been paid to Suarez Brothers of Pinellas, Inc. by the bank making regular disbursements under the construction loan procured by Mr. and Mrs. Phillips for that purpose. Suarez Brothers of Pinellas, Inc. did not use these funds for their intended purpose and misappropriated them to another use not related to the Phillips construction project. The supplies or services for which the liens were perfected had been ordered by Suarez Brothers of Pinel1as, Inc. for this customer's job. Raymond R. Suarez did not have the liens removed from the property by payment within thirty days after the date of such liens, nor has he attempted to have the liens removed at a later date. The Respondent, as qualifying contractor, knew or should have known that the liens were in existence and had been perfected. Since the alleged incidents of misconduct by Raymond R. Suarez, he has not renewed his contractor's license which remained valid until June 1989. The Hearing Officer was not made aware of any aggravating or mitigating circumstances relating to the charges in the Amended Administrative Complaint at final hearing.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Raymond R. Suarez be found not guilty of the alleged violations set forth in paragraphs four, six and seven of the Amended Administrative Complaint. That Raymond R. Suarez be found guilty of having violated Section 489.129(1)(h), Florida Statutes, based upon the misconduct alleged in paragraph five of the Amended Administrative Complaint, and be ordered to pay a $1,500 fine as the assessed penalty under Rule 21E-17.001(10), Florida Administrative Code. That Raymond R. Suarez be found guilty of having violated Section 489.129(1)(e), Florida Statutes, based upon the misconduct alleged in paragraph eight of the Amended Administrative Complaint, and be ordered to pay a $1,500 fine as the assessed penalty under Rule 21E-17.001(13), Florida Administrative Code. That Raymond R. Suarez be found guilty of having violated Section 489.129(1)(g), Florida Statutes, based upon the misconduct alleged in paragraph nine of the Amended Administrative Complaint, and that a letter of guidance be issued for his misconduct, pursuant to Rule 21E-17.001(1), Florida Administrative Code. DONE and ENTERED this 14th day of January, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4260 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. Accepted. See HO #1. Rejected. Irrelevant. See HO #9. Accepted, except for the liens against the property for services and supplies placed upon the project after Suarez Brothers of Pinellas, Inc. was taken off the project. See HO #25 - #33. Accepted, except monetary amount of liens on project for servicesand supplies placed after the company was terminated, if any, were not considered. See HO #17 - #24. Rejected. Irrelevant. See HO #9. Accepted, except for liens against the property for services and supplies p1aced on the property after the contractor was changed, if any. See HO #10 - #16. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Raymond R. Suarez 904 Terra Mar Drive Tampa, Florida 33613 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Mr. and Mrs. Reinhold Brooks 6117 - 94th Avenue North Pinellas Park, Florida Mr. and Mrs. Keith Phillips 5944 Bayview Circle Gulfport, Florida Mr. and Mrs. Richard Vozne 316-7th Avenue North Tierra Verde, Florida Mr. and Mrs. Robert Ganoe 10503 - 100th Street North Largo, Florida Mrs. and Mrs. James B. Hughes, Jr. 9985 Lake Seminole Drive West Largo, Florida
The Issue Whether Respondent violated Sections 489.127(1)(f) and 455.227(1)(q), Florida Statutes (2004), and what discipline should be imposed.
Findings Of Fact At all times material hereto, Respondent was not licensed to engage in construction in the State of Florida. At all times material hereto, Respondent’s business did not possess a certificate of authority to practice as a contractor-qualified business. On or about October 5, 2004, Respondent contracted with Dyba to repair the roof at Dyba’s residence in Santa Rosa County, Florida. The contracted cost of these repairs was $3600, of which Respondent collected $600 from Dyba by check. On or about October 9, 2004, Respondent placed an advertisement in the Pensacola News Journal asserting that he would make repairs to kitchens, baths, decks, siding, docks, and most any hurricane damage. On June 8, 1994, Petitioner issued a Notice to Cease and Desist to Respondent for engaging in the unlicensed practice of construction contracting. The total investigative cost to the Petitioner was $166.88.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order finding Respondent guilty of violating Section 489.127(1)(f), Florida Statutes (2004), imposing an administrative fine in the amount of $5,000, and assessing costs of investigation and prosecution in the amount of $166.88. DONE AND ENTERED this 11th day of August, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 August, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Douglas Claiborne DOC No. 203745 Berrydale Forestry Camp 6920 Highway 4 Jay, Florida 32565 John Thomas, Classification Officer Berrydale Forestry Camp 6920 Highway 4 Jay, Florida 32565 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 John Washington, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent, Edward Cridland, committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this matter, Respondent, Edward Cridland, was licensed by the Department as a certified general contractor, license number CG C004342. The Department is the state agency charged with the responsibility of regulating licensed certified general contractors in the State of Florida. On or about December 2, 1989, the Respondent entered into a contract with Mr. and Mrs. Anthony Young to construct a single family residence for them on property located in Okeechobee County, Florida. Pursuant to the terms of the contract, Respondent was to receive payments totaling $148,860 which were payable as follows: 5% upon signing of the contract, 15% upon foundation being in place, 30% upon the framing inspection, 30% upon the finished dry wall installation, and 20% upon final inspection. In order to finance the home construction, the Youngs obtained a loan from SunTrust. Because Respondent was not on SunTrust's list of approved contractors, the bank required that draws on the loan be made to the subcontractors and to Respondent. To reduce the construction indebtedness, Mr. Young intended to pay $25,000 of the costs from his savings. As he put it, Mr. Young acted "as his own banker" for that amount. Accordingly, during the construction of the residence, payments were made to Respondent and his subcontractors from both the owner and the lender. The building permit for the Young residence was issued on January 11, 1990. For the period February 26, 1990, through August 7, 1990, SunTrust issued checks to Respondent's subcontractors on the Young project totaling $46,499.76. For the period July 9, 1990, through January 22, 1991, Young issued checks to Respondent's subcontractors totaling $26,198.45 of which $22,030.00 was owed by Respondent pursuant to the contract. For the period February 5, 1990, through June 7, 1990, SunTrust issued checks to Respondent totaling $62,846.72. For the period January 9, 1990 through July 27, 1990, Young issued checks to Respondent totaling $18,474.00. In August 1990, the Young residence was substantially completed. The Youngs were anxious to convert their construction loan to permanent financing and to obtain a certificate of occupancy. To that end, Mr. Young contacted the building department. Respondent delivered the certificate of occupancy to Mr. Young on or about August 24, 1990. Respondent never gave the Youngs an affidavit as to costs or expenses being paid on their home and never attempted to close out the construction loan with the bank. Although Respondent would have been due 20% upon final inspection of the home, the lender held only $14,513.52, which was paid to the Youngs when the construction account was closed on September 17, 1990. As it turned out, the $14,513.52 was inadequate to pay all subcontractors who sought compensation for this project. Mr. Young settled the subcontractor claims as best he could but did not have the funds to satisfy everyone. For example, Respondent owed W & W Lumber of Okeechobee, Inc., $31,773.49 of which $19,371.92 remained unpaid on November 7, 1990, when a valid lien was filed against the Youngs' property. Other subcontractors who did not file liens went unpaid or received less than the amounts claimed. Respondent owed all of the subcontractors who testified at the hearing for the Young project. All had made attempts to find Respondent during the relevant time frame. All had failed to locate him. The bank officer also tried without success to locate Respondent. In order to satisfy the lien against their home, the Youngs paid W & W Lumber of Okeechobee, Inc., $19,371.92 on January 16, 1991. Respondent's claim that change orders or upgrades for the home resulted in the discrepancy between monies owed for the project and contract amount has not been deemed persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a Final Order against the Respondent imposing an administrative fine in the amount of $2500, assessing costs of the investigation of this matter as may be allowed by law, requiring Respondent to make restitution to the customer, and suspending Respondent's license until such amounts have been paid. DONE AND ENTERED this 30th day of September, 1997, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1997. COPIES FURNISHED: Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William S. Cummins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Edward Cridland 306 Northeast 3rd Street Okeechobee, Florida 34972
The Issue Whether Respondent committed the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this complaint, the Respondent, Joseph Marcelin, was a certified residential contractor, license number CR C028352. Respondent’s place of business and residence are in Dade County, Florida. The Petitioner is the state agency charged with the responsibility of regulating and disciplining licensed contractors. On May 14, 1988, the Construction Industry Licensing Board entered a final order approving a settlement stipulation regarding Case no. 74860 against this Respondent. This final order directed Respondent to adhere to and abide by all of the terms and conditions of the stipulation. The stipulation required the Respondent to not violate the provisions in Chapters 455 and 489, Florida Statutes, in the future; required Respondent to honor a settlement in a civil matter; required Respondent to pay a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and required Respondent to affirmatively demonstrate compliance with the stipulation in order to have his license reinstated. A second final order entered by the Board on May 14, 1988, approved a settlement stipulation regarding Case no. 77499. This final order also directed Respondent to comply with the stipulation applicable to that case. In Case no. 77499, the stipulation required Respondent to abide by a civil settlement; imposed a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and placed the burden on Respondent to demonstrate he had met the terms of the stipulation. As to both cases referenced above, Respondent admitted the allegations of the administrative complaints which, in pertinent part, claimed Respondent had assisted an unlicensed person or entity to perform contracting services thereby aiding and abetting an unlicensed person to evade the provisions of Chapter 489, Florida Statutes. On April 2, 1993, Respondent executed a certification change of status form which was submitted to the Department. Such form was completed for the purpose of qualifying as an individual for licensure and sought to reinstate a delinquent license or change from inactive to active. In the course of completing the change of status form Respondent was required to answer a series of questions by checking either the “yes” or “no” column. In response to the question as to whether Respondent had “been charged with or convicted of acting as a contractor without a license, or if licensed as a contractor in this state or any other state, had a disciplinary action (including probation, fine or reprimand) against such license by a state, county or municipality?,” he answered “no.” Such answer was false. Further such answer was made under with the following affirmation: I affirm that these statements are true and correct and I recognize that providing false information may result in a FINE, SUSPENSION, OR REVOCATION of my contractor’s license. [Emphasis in original.] Thereafter, the Department notified the Respondent that his license would not be issued as he had failed to demonstrate satisfaction of a civil judgment and had not submitted an explanation of the disciplinary action from 1988. Respondent eventually resolved issues of licensure with the Department and, on September 15, 1993, was authorized to practice contracting. Prior to his license being reinstated, Respondent performed the following: on April 7, 1993, Respondent obtained a building permit for construction work at the home of Eduardo Bovea. This permit, no. 93181501, indicated Respondent as the contractor of record for the project. On the permit application Respondent represented himself as the licensed building contractor for the Bovea project to the Metropolitan Dade County building and zoning department. Respondent did not have a contract with Bovea for the construction work to be performed on the Bovea home. In fact, the contract was between Bovea and Lou Greene Construction. The Boveas paid monies to Rodney Salnave, who claimed to be a representative for Lou Greene Construction. Rodney Salnave was not Respondent’s employee, and was not licensed as a contractor. The Respondent did not talk to the Boveas regarding the contract, the scope of the work to be done, or the contract price for the work. All discussions regarding the work at their home (and payments for same) were between Rodney Salnave and the Boveas. The permit for the Bovea project represented the amount of the work to be $2,000.00. In fact, the contract price for the work was $4,500.00. Respondent misrepresented the value of the work for the Bovea project. As of September 26, 1993, Respondent admitted he was involved with seventeen contracting jobs. Just eleven days after having his license reinstated, and while being employed in a full-time (8:00 a.m. to 5:00 p.m.) job with Dade County, Respondent had contracting responsibility for seventeen jobs. In reality, Respondent had made a deal with an unlicensed person, Denis Joseph, to pull permits for him. The jobs were for persons who, in some instances, Respondent had never met. For example, Mr. Joseph pulled a permit for work to be performed on a home owned by Ed Davis. The contract for the work was between Mr. Davis and a Mr. Sutton, an unlicensed contractor, but with the approval of Respondent, Mr. Joseph obtained a permit for the Davis job. A second job was for Bertha Joseph. In this instance, Mr. Joseph completed the permit application which Respondent signed thereby allowing Mr. Joseph to obtain the permit for the project. By signing the permit, Respondent represented himself to be the contractor for the job. In truth, the homeowner had contracted with Denis Joseph for the work to be done, but the project was completed by Emanuel Gideon, an unlicensed contractor. Respondent admitted receiving payments from Denis Joseph. Respondent admitted he was not actively involved with the Bertha Joseph project. In September, 1993, Eric Wardle, an investigator with the Dade County building and zoning department, interviewed Respondent regarding claims that he was obtaining permits for unlicensed contractors. According to Mr. Wardle, Respondent admitted he pulled permits for unlicensed contractors after Hurricane Andrew because they were trying to make a living. At hearing Respondent disputed the accuracy of Mr. Wardle’s investigation but admitted he would have told him “anything just for him to get away from me.” Respondent’s explanation at hearing was not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order revoking Respondent’s contractor license and imposing an administrative fine in the amount of $8,500.00. DONE AND ENTERED this 16th day of May, 1997, in Tallahassee, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: Bruce M. Pasternack, Esquire Raymond L. Robinson, P.A. 1501 Venera Avenue, Suite 300 Coral Gables, Florida 33146 Joseph Marcelin 16561 Southwest 144th Court Miami, Florida 33177 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1997. Rodney Hurst, Executive Director Department of Business and Professional Regulation/CILB 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
The Issue Whether the Miami-Dade County School Board's failure to disqualify Magnum Construction Management Corporation from bidding on Project No. A0746 pursuant to paragraph G. of the General Requirements of the Request for Qualifications issued in connection with the project was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board The School Board is a duly constituted district school board charged with the duty of operating, controlling, and supervising all free public schools in Miami-Dade County, including, among many others, Westview Middle School (Westview) and Miami Coral Park Senior High School. The Westview Project Westview is currently undergoing expansion, remodeling, and renovation work (Westview Project). The project is almost complete. Blanca Bazan is a School Board employee who serves as project manager on School Board construction projects. At all times material to the instant cases, Ms. Bazan has been the Project Manager on the Westview Project. LIVS and Associates (LIVS), an architectural and engineering firm, has been the Project Architect/Engineer (or A/E of Record) on the Westview Project since October of 1997, when it entered into a written agreement (which is still in effect) to assume such responsibility in return for a "lump sum" payment, plus additional fees (LIVS Westview Agreement). Paragraph III.G. of the LIVS Westview Agreement describes the "basic services" LIVS is to provide during the "construction phase" of the project. It provides, in pertinent part, as follows: The following are to be performed by the A/E [LIVS], and shall in all cases be in accordance with the requirement of the contract documents: OBSERVATION a.) The A/E shall provide construction administration of the Contract for Construction as set forth in this AGREEMENT and in the General Conditions of the Contract for Construction unless otherwise provided in this AGREEMENT. The A/E shall visit the site at least weekly or as appropriate to the stage of construction or as otherwise directed by the BOARD to become generally familiar with the progress and quality of the Work completed and to determine in general if the Work is being performed in a manner indicating that the Work when completed will be in accordance with the Contract Documents. As part of the A/E's basic services, the A/E shall conduct 120 on-site observation visits. A/E shall provide a report to the PM [Project Manager] . . . . On the basis of on-site observations as the A/E, the A/E shall keep the BOARD and Contractor informed immediately in writing of the progress or lack of progress and quality of the Work, and shall endeavor to guard the BOARD against defects and deficiencies in the Work. The A/E shall at all times have access to the Work, wherever it is in preparation or progress. * * * b.) . . . . A/E will enforce the faithful performance of Contract and assure that the Work has been or is being performed in accordance with the Construction Documents. . . . A/E will provide written notice to BOARD if it observes or has reason to become aware of any defect or non- conformance with the Construction Documents. CONTRACTOR'S SUBMITTALS The A/E shall review and evaluate samples, schedules, shop drawings, and other submissions for conformance with the design requirements of the Project, applicable codes and ordinances. . . . The A/E shall also prepare in a timely manner change order items, including the proper documentation for DOE transmittal. . . . * * * 4. QUALITY CONTROL The A/E shall make a reasonable effort to evaluate materials and/or workmanship for conformance with Construction Documents, evaluate quality control testing reports, advise the Construction Contractor and the BOARD immediately of any unacceptable materials and workmanship the A/E may discover and [e]nsure that the Contractor take appropriate action to remedy unacceptable conditions. * * * CERTIFICATION OF PAYMENTS The A/E shall review the Contractor's notarized requisitions for payment, the schedule of values, subcontractor partial releases and the Project schedule. The A/E shall determine the amount which in the A/E's opinion should be paid to the Contractor and shall recommend for [the] BOARD'S approval certificates for payments in such amounts. These certificates will constitute a representation to the BOARD, based on site observations by all appropriate Designated Specialists for architectural and engineering disciplines and on the data comprising the application for payment, that the Work has progressed to the point indicated. By recommending a certificate for payment consistent with the contract documents, the A/E shall also represent to the Board that, to the best of the A/E's knowledge, information and professional judgment, the quality of work is in accordance with the Construction Contract Documents, unless the BOARD has been notified to the contrary in writing. Prior to issuing certification for payment, A/E shall review the status of Contractor's Construction Documents and Project schedule and verify that the documents and/or schedules are up-to-date and accurate to the extent visual observation of construction will disclose. A/E shall also confirm that after the first application for payment, each subsequent application shall be accompanied by subcontractor partial lien release fully accounting for subcontractor payments due for the previous application. If the Construction Documents and Project Schedule are not up-to-date and/or accurate, A/E shall include in its certification for payment a statement that the Construction Documents and/or Project Schedule are not up-to-date. In such event, BOARD may, a.) hold an additional ten (10)% of amount then due Contractor until A/E verifies that the Construction Documents and/or Project Schedule are up-to-date and accurate, b.) refuse to process the partial or final requisition for payment, or c.) pay Contractor. . . . The A/E's certification is a representation by A/E to Owner that all required items noted herein are submitted and proper and serves as a recommendation for payment only. The A/E shall make every reasonable effort to process the Contractor's requisition for payment in accordance with the timelines[] established in the General Conditions of the Construction Contract. . . . * * * SUBSTANTIAL COMPLETION The A/E, upon written notification by the Contractor that the Work is substantially complete and ready for substantial completion shall promptly conduct inspection to determine the date or dates of substantial completion for the work. . . . c) Not Substantially Complete If A/E determines that the Work has not achieved Substantial Completion, A/E will notify Contractor in writing of the deficiencies within ten (10) days of the Inspection. FINAL COMPLETION AND FINAL PAYMENT Upon receipt of written notice that the Work is ready for Final Inspection and Acceptance and upon receipt of a final Requisition for Payment, or at completion of the thirty (30) day punchlist period, whichever is earliest, A/E, its engineers and other consultants, BOARD and Contractor shall participate in a walk-through to inspect the Work. At the conclusion of the inspection, the Work shall be determined to be as follows: Finally Complete If it determined that the Work has achieved Final Completion, final payment shall be made in accordance with the Contract Documents. Not Finally Complete If it is determined that the Work has not achieved Final Completion, A/E shall prepare a Final Completion Punchlist and Final Completion shall be achieved in accordance with the Contract Documents and such other consequences as allowed by contract and at law shall be employed. . . . After all Final Inspection Punchlist items have been completed, A/E will recommend to BOARD acceptance of the Project and make recommendations regarding Contractor's final payment request. . . . Paragraph X.B. of the LIVS Westview Agreement provides as follows: If for any reason, the A/E is unable to perform the services under this contract, the BOARD reserves the right to either name or approve the A/E selected to complete the performance of this AGREEMENT. The BOARD reserves the absolute right to recommend a successor A/E or terminate the services of the A/E.[3] Paragraph XII. of the LIVS Westview Agreement provides that "[t]he BOARD may terminate this AGREEMENT, with or without cause, at any time upon thirty (30) days written notice to the A/E." With LIVS' assistance, a Project Manual for the Westview Project (Westview Manual) was prepared in anticipation of the letting of the Contract for Construction of the project through a competitive bidding process. Included in the Westview Manual were the General Conditions of the Contract for Construction. Subsections 3.1.1, 3.3.1, 3.3.2, and 3.3.3 of these General Conditions read as follows: 3.1.1 Contractor is the person, firm or corporation authorized to do business in the State of Florida and properly licensed or registered for the work to be performed with whom a Contract has been made with the Board for the performance of the Work described in the Construction Documents. * * * Contractor shall supervise and direct the Work in a manner consistent with contemporary community standards. Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Construction Documents give other specific instructions concerning these matters. Contractor shall be responsible to Board for acts and omissions of Contractor's employees, Subcontractors and their agents and employees and other persons performing portions of the Work under the Contract and shall be responsible to A/E and Board for coordination and complete execution of the Work in accordance with the Construction Documents. 3.3.3. Contractor shall not be relieved of obligations to perform the Work in accordance with the Construction Documents either by activities or duties of A/E in its administration of the Contract, or by tests, inspections or approvals required or performed by persons other than Contractor. In or around 1999, the Contract for Construction of the Westview Project was awarded by the School Board to J.V. Construction Corporation (J.V.). As required by law and the terms of the Contract for Construction, J.V. executed and delivered to the School Board a payment and performance bond issued by The Hartford Fire Insurance Company (Surety). J.V. subsequently defaulted and its right to proceed under the Contract for Construction was terminated by the School Board, which called upon the Surety to fulfill the Surety's obligations under the payment and performance bond it had issued. As a result, the Surety "essentially step[ped] into the shoes of [J.V.]" under the Contract for Construction.4 The Surety thereafter contracted with MCM to act as a "completion contractor" and complete the work J.V. had begun under the Contract for Construction. The School Board was not a party to this contractual arrangement. The Completion Contract into which the Surety and MCM entered (which has been in effect since October 25, 2001) provides, in pertinent part, as follows: THIS COMPLETION CONTRACT (the "Contract") is effective the 25th day of October 2001 by and between The Hartford Fire insurance Company (the "Surety") and Magnum Construction Management Corp. (the "Completion Contractor"). RECITALS WHEREAS, J.V. Construction Corp. (the "Former Contractor") and THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA (the "Owner") entered into a contract (the "Original Contract") for the Former Contractor to furnish all labor and material and perform all work for the construction of an addition to the Westview Middle School Project No. A0670 (the "Project") in accordance with the terms and provisions of the Original Contract including all contract documents forming a part of the Original Contract; WHEREAS, as required by law and under the terms of the Original Contract, the Former Contractor and Surety made, executed and delivered to the Owner a Performance Bond, Bond No. 21 BCS AE 8081, and Payment Bond, Bond No. 21 BCS AE 8081 (collectively, the "Bonds"), each in the penal sum of $6,678,000.00; WHEREAS, the Owner has terminated Former Contractor's right to proceed under the Original Contract, and the Owner has called upon the Surety to fulfill its obligations as surety under the terms of the Performance Bond; WHEREAS, the Completion Contractor has submitted a proposal dated July 25, 2001, to the Surety to complete the Original Contract, and said proposal is incorporated herein . . . ; and WHEREAS, the Surety and the Completion Contractor desire to enter into this Contract under the terms and conditions hereinafter set forth. NOW, THEREFORE, the Surety and the Completion Contractor, for and in consideration of the mutual obligations and promises herein set forth, do contract and agree as follows: AGREEMENTS Contract Documents. The Contract to the Surety consists of the terms and provisions contained herein, including the proposal from MCM Construction to the Surety dated July 25, 2001, to complete the Original Contract . . . ; and the Original Contract, including all General, Supplementary and Special Conditions, drawings, specifications, forms, addenda and documents forming a part of the Original Contract and any modifications to the Original Contract, all of which are incorporated herein by reference and which are hereinafter referred to collectively as the "Contract Documents." The Completion Contractor hereby warrants that it has received and read all of the Contract Documents. Strict Compliance. The Completion Contractor shall be bound to the Surety by all of the terms and provisions of the Contract Documents, including administrative as well as technical provisions, and shall strictly comply therewith in all respects. Furthermore, the Completion Contractor shall be bound in the same manner and to the same extent that the Surety and the Former Contractor or either of them would be bound to the Owner under the Original Contract, including but not limited to the conditions or determinations by the Owner with respect to all work done thereunder. The Completion Contractor shall have no responsibility or liability for indebtedness incurred by the Former Contractor. * * * Work to be Performed. The Completion Contractor shall furnish and pay for all labor, materials, services and equipment and shall do everything else necessary to perform and satisfactorily complete the work of the Original Contract as required by the Contract Documents to the satisfaction of the Surety and the Owner in such manner as to fully protect and save the Surety harmless as to its liability to the Owner for the completion of the original Contract (The "Work"). Time for the Performance of the Work. . . . . Subject to allowable time extensions as provided under the terms of the Original Contract, if the Completion Contractor fails to achieve Substantial Completion as defined in the Original Contract in the time allowed by this Paragraph, the Completion Contractor is liable to the Surety for all liquidated damages assessed against the Surety for the Work under the Original Contract after 713 days from the execution of this Agreement by both parties. The Surety may withhold from the Completion Contractor payments which otherwise may be due to the Completion Contractor in an amount equal to the liquidated damages assessed by the Owner. Price. The Surety shall pay to the Completion Contractor and the Completion Contractor agrees to receive and accept Four Million, Seven Hundred Eighty Eight Thousand, Three Hundred ($4,788,300.00) Dollars (the "Price") as full compensation for the performance and completion of the Work as described in the Contract Documents. . . . * * * 9. Payment. As specified in the Original Contract, the Completion Contractor shall prepare, sign and submit to the Owner, on behalf of the Surety, a request for payment (the "Surety/Owner Requisition") showing the value of the work completed and the materials stored to date in accordance with the terms of the Original Contract. The Surety/Owner Requisition shall be based on the Original Contract price of the Former Contractor. The amount of the Surety/Owner Requisition as approved by the Owner and the Surety shall be due and payable to the Completion Contractor within seven (7) days after the Surety receives payment from the Owner. If the Owner refuses to pay the Surety for any reason related to the Completion Contractor's performance, nonperformance, or in any way related to the Completion Contractor's actions, the Surety shall have no obligation to pay the Completion Contractor until the Owner pays the Surety. In this event, the Surety shall only be obligated to pay the Completion Contractor whatever amounts are received by the Surety within seven (7) days of the Surety's receipt of payment from the Owner. In the event Owner refuses to pay Surety for any reason NOT related to the actions of the Completion Contractor, or its Subcontractors, Surety shall make payment to completion contractor, for all work in place as of the date of the payment application, within the timeframe set forth in the Original Contract for payment to the Original Contractor from the Owner. * * * B. In the same time frame as specified in the Original Contract, the Completion Contractor shall prepare and submit to the Surety a request for payment (The "Surety/Completion Contractor Requisition") based upon the amount of the Completion Contractor's price to the Surety. The Surety/Completion Contractor Requisition shall be based on the same percentages of completion (the value of the work completed and the materials stored to date (as the Surety/Owner Requisition.). The Surety shall pay the Completion Contractor for the Surety/Completion Contractor Requisition as specified in the immediately preceding paragraph. * * * Defects in Work. The Completion Contractor shall be responsible for any and all defects in the work performed or materials supplied by the Completion Contractor and/or any of the Completion Contractor's subcontractors or materialmen after the execution of this Agreement by both parties. Independent Contractor. Except as otherwise provided in this Contract and the Original Contract the Completion Contractor will be permitted to exercise the full prerogatives of a prime contractor, in prosecuting the work, including but not limited to the selection and classification of supervisors and workers, scheduling, determination of equipment and material requirements, and the establishment of work hours and work week including overtime. It is further understood and agreed that the Completion Contractor is an independent contractor in connection with all work to be performed by it pursuant to the Contract Documents. * * * The Completion Contractor as the Surety's Representative on the Project. The Surety shall be represented at the Project by the Completion Contractor. Prior to the issuance of the Notice to Proceed, the Completion Contractor shall name, and the Surety shall specifically authorize in writing an individual with the Completion Contractor to be its representative (the "Authorized Individual") solely for the purposes set forth in this paragraph. The Authorized Individual will represent the Surety in dealing with the Owner on day to day construction issues with respect to the Project. The Surety hereby designates the Authorized Individual to prepare and process pay requisitions on the Contract. However, the Surety will sign all pay requisitions submitted to the Owner. Payments from the Owner shall be made payable to the Surety and transmitted to the Surety . . . . * * * 17. Termination of Agreement. Termination for Convenience. This Contract may be terminated in whole or in part by the Surety at any time for the Surety's convenience, provided the Completion Contractor is given not less than ten (10) calendar days written notice of intent to terminate and an opportunity for consultation with the Surety prior to termination. . . . Termination for Cause. Should the Completion Contractor, at anytime, in the judgment of either the Owner or the Surety, refuse or fail to supply a sufficient number of properly skilled workmen or materials, tools, equipment, facilities, or supplies of a proper quality; or fail in any respect to prosecute the work with promptness and diligence; or interfere with or impede the work of others on the Project; or fail in the performance of any of its obligations under this Contract or under the Original Contract, and should the Completion Contractor fail within three (3) days after receipt of written notice from either the Owner or the Surety to remedy such default; . . . or disregard the instructions of the Owner or the Surety; or for any other cause whatsoever shall not carry on the work in an acceptable manner, the Surety may, in any such event, either terminate this Contract or may exclude the Completion Contractor and its employees and agents from the work without terminating this Contract. . . . Following the execution of the Completion Contract, the Surety's attorney wrote a letter, dated November 7, 2001, to Ms. Bazan, which read as follows: The Hartford is in receipt of your letter dated November 2, 2001, and has requested that we respond on its behalf. In response to your specific questions, please be advised of the following: The Hartford's authorized representative on the project is: Mr. Fernando Munilla MCM Corp. 6201 S.W. 70th Street Second Floor Miami, Florida 33143 The Hartford has also authorized Mr. Fernando Munilla to prepare and process pay requisitions on the project. However, the Hartford will sign all pay requisitions submitted to the School Board. Payments from the School Board shall be made payable to the Hartford Fire Insurance Company and transmitted to The Hartford at the following address unless and until the School Board is notified in writing of a different address: The Hartford Fire and Insurance Company Hartford Plaza-T4 Hartford, Connecticut 06115 Attention: Robert Griffith, Esq. Bond Claims Mr. Fernando Munilla shall have, on behalf of The Hartford, the authority to negotiate and sign change orders for extra work requested or required by the School Board (hereinafter "Change Order") without The Hartford's prior written approval, provided that the Change Order does not exceed $10,000.00 and that MCM requests and is given additional time to perform the Change Order. If the Change Order does exceed $10,000.00, or if MCM requests additional time but no additional time is given to MCM to perform the Change Order, then The Hartford's written approval is required to negotiate the Change Order and the final Change Order must be signed by The Hartford and not Mr. Munilla. If the total of the approved Change Orders exceeds the sum of $50,000.00, then The Hartford, and not Mr. Munilla, must approve in writing all additional or subsequent Change Orders regardless of the amount of each such Change Order. Mr. Munilla has no authority to negotiate deductive Change Orders, credits, backcharges or net deductions from the Original Contract of any nature whatsoever without The Hartford's prior written approval. Mr. Munilla has no authority to negotiate on behalf of The Hartford on any disputes between MCM and The Hartford. I trust this letter answers all of your questions. Please do not hesitate to contact me should you require any additional information or clarification. Since the effective date of the Completion Contract, LIVS, acting pursuant to the LIVS Westview Agreement as the School Board's A/E of Record on the Westview Project, has been inspecting and evaluating the work performed by MCM under the Completion Contract and verifying that work for which payment is sought (through the submission of pay requisitions by MCM on behalf of the Surety) has been completed in accordance with the requirements of the Contract for Construction. If a pay requisition is approved by LIVS, it is then sent to Ms. Bazan for her review and approval. If everything is in order, Ms. Bazan signs the pay requisition and then "run[s] it through the chain of command." When all the necessary signatures are obtained, the School Board makes payment to the Surety, which, in turn, pays MCM under the terms of the Completion Contract. MCM does not have any contract with the School Board in connection with the Westview Project. The payment it receives for the work it does on the project comes from the Surety (with which it does have a contractual relationship), not from the School Board. The School Board considers the Surety to be the Westview Project "contractor" (as evidenced by MCM Exhibit 19, which is an excerpt of an October 30, 2002, printout listing School Board construction projects).5 In the Statement of Contractor's Qualification that MCM submitted to the School Board in 2002 to obtain its Certificate of Contractor Prequalification for "General Contractor [W]ork" (which certificate was effective July 10, 2002, until July 10, 2003, and authorized MCM "to have under contract with the [School] [B]oard at any one time a total dollar value of work in the amount of $100,000,000.000 and maximum dollar value of each individual project in the amount of $40,000,000.00"), MCM stated, among other things, the following under "Contracts in Progress": PROJECT NAME: WESTVIEW MIDDLE SCHOOL- REMODELING & RENOVATION OWNER: Miami-Dade County Public Schools, Blanca Bazan (305)995-4538 ARCHITECT: LIVS and Associates CONSTRUCTION COST: $4,788,300 START/COMPLETION: 10/01 to 10/03 DESCRIPTION OF PROJECT: Addition, renovation and remodeling of an existing middle school with very stringent phasing requirements and time frames. The project consists of three phases. The first phase is a new building with classrooms and a media center, as well as a new parking lot. The second phase consists of the renovation and remodeling of a one-story building with a courtyard, classrooms, locker rooms, band room, and shop class. The third phase is a two-story building with a parking lot, classrooms, auditorium and an immediate phasing that consists of remodeling a cafetorium during summer break. The remodeling and renovation includes: asbestos abatement, architectural, electrical and mechanical demolition. The Instant Project In or about July of 2002, the School Board issued a Request for Qualifications for Design-Build Firms for "State School 'MMM' 1600 Student Station Addition at: Miami Coral Park Senior High School (Project No. A-0746)" (RFQ). In a design-build project like the Instant Project (in contrast to the "traditional bid contract scenario"), the School Board enters into a single contract (with a design-build firm) for both the design and construction components of the project.6 In the Legal Advertisement that was part of the RFQ, the School Board announced that it "intend[ed] to pre-qualify three (3) to six (6) design-build firms to subsequently invite them to bid" on the Instant Project and further stated, in pertinent part, the following: Firms and companies desiring to participate in the design-build pre-qualification process shall submit an original qualification proposal and eight copies . . . . * * * If the applicant is a joint venture, an executed copy of the joint venture agreement must be submitted with the application. Percentages of participation of fees must be clearly stated for each joint venture partner. Only one submittal will be accepted per applicant, either as a single prime or as part of a joint venture. Firms or companies desiring to participate in this contract must have been pre- qualified by the Board, in accordance with Board rule for Pre-Qualification of Contractors for Educational Facilities Construction, prior to submitting their proposal for this advertisement. . . . The General Requirements portion of the RFQ provided, in pertinent part, as follows: In order to be considered, proposers must meet the following basic requirements: * * * A pre-proposal conference will be held . . . . Attendance is highly encouraged. This will be the only opportunity to present questions regarding the proposal. Written questions may be forwarded to Mr. Ivan M. Rodriguez, R. A., . . . and said questions will be answered at the pre-proposal conference. Questions and answers will be distributed to attendees. Proposers must be authorized to do business in the State of Florida and must possess all required registration, certification and licenses (including design and construction) in accordance with all applicable Florida Statues, ordinances, regulations, and/or Board Rules. A joint venture, including a joint venture composed of qualified business organizations, is itself a separate and distinct organization that must be qualified in accordance with Board Rules and Florida Statute 489.119(2)(c). Proposers must have been in business for a period of no less than five years. In the event of a joint venture or a newly formed company, at least one of the entities of the joint venture or principal of the newly formed company must have been in business for a period of no less than five years. Any proposer, firm or company desiring to participate in this process must not have as a part of its team an A/E firm presently under contract with the Board for a specific project and a General contractor for the same project. The Board considers this a conflict of interest and such proposals will not be considered for award of a contract under this Request for Qualifications. * * * M. MDCPS reserves the right to reject any proposal, to waive technicalities, or to accept the proposal that, in its sole judgment, best serves the interest of Miami-Dade County Public Schools. * * * Failure to file a protest within the time prescribed in §120.57(3), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Any questions concerning this RFQ should be directed to the Department of A/E Selection, Negotiations & Design Management; attention, Mr. Ivan M Rodriguez, R. A. Director at . . . . The Pre-Qualification Process portion of the RFQ provided, in pertinent part, as follows: Intent: To pre-qualify between three (3) to six (6) design-build firms to subsequently invite them to bid on the following project: State School "MMM" 1600 Student Station Addition @ Miami Coral Park Senior High School (Preliminary estimated Construction Cost- $17,473,890) 8865 S.W. 16th Street, Miami, Florida 33165 Project No.: A0746 The selected proposer will be placed on a list of qualified bidders for bidding on design-build services for the above project. * * * C. Pricing The selected proposers will be allowed to bid the above listed project[], under a competitive bid process, based on design criteria established by a Design Criteria Professional under contract by MDCPS. The Evaluation/Scoring Process portion of the RFQ provided, in pertinent part, as follows: All proposers will be evaluated based on information presented in their submittals, utilizing the Board approved "Procedure[] for [] Selection of Design-Build Firms" dated January 5, 1994 (Updated March 10, 1999) . . . . The "Procedure[] for [] Selection of Design-Build Firms" referenced in this portion of the RFQ provided, in pertinent part, as follows: I. SELECTION PROCESS: INTENT To select Design-Build firms for bidding on each DCPS Design-Build project identified. Selected proposers will be placed on a list of qualified bidders for bidding on each DCPS Design-Build project as advertised. SCHEDULE: Dates for the items listed below shall be projected and become part of future Request for Proposals (RFP) advertisement. Board Review Mailing Advertisement Proposal Submittal Deadline Evaluation Interviews Bid on Design-Build Projects Award of Design-Build Project * * * PRICING: Selected proposers will be allowed to bid each Design-Build project identified under a competitive bid process. * * * EVALUATION/SCORING PROCESS: All proposers will be evaluated based on information presented in their submittals . . . . SCORING The evaluation/scoring process will be conducted in two steps. First, staff shall evaluate all factors in the Initial Screening section of Form-1 . . . . Second, the Selection Committee shall evaluate all factors contained in the Interview section of Form-1 . . . . The evaluation/scoring process shall be as follows: INITIAL SCREENING All proposers will undergo an initial screening process conducted by staff where they will be evaluating the proposer[]s' qualifications. The proposers will be evaluated by staff utilizing Form-1 . . . ; maximum score in this category is 115 points. Proposers that do not comply with the RFP will not be accepted and shall be duly notified. INTERVIEWS All proposers that comply with the RFP shall be contacted to schedule interviews by the Selection Committee. The Proposers will be evaluated by each of the members of the Selection Committee utilizing Form-1 . . . . The maximum score in this category is 115 points. RANKING Both the initial screening score and the interview score will be added, and the sum of both scores will determine the ranking of all proposers. The highest and lowest of the seven (7) total scores for each proposer will be dropped, and an average taken of the remaining five (5), to determine total score and ranking. Three (3) or more firms will be selected as eligible to bid on the project advertised. The Board shall have the right to make exceptions to this procedure when valid public emergency conditions warrant. INSTRUCTIONS FOR USE OF DADE COUNTY PUBLIC SCHOOLS DESIGN-BUILD SERVICES SELECTION-FORM 1 * * * INITIAL SCREENING (115 POINTS TOTAL) From the proposer's response to the RFP, staff will objectively evaluate the firm's abilities in accordance with those criteria listed below (Scores for each applicant will be based on comparison with all other applicants): * * * C. ARCHITECTURAL ENGINEERING DESIGN (30 POINTS): Submit General Services Administration Standard forms 254 (one for each discipline) and 255 (one for entire team), which best describes the proposed architectural/engineering design team. . . . * * * INTERVIEWS After the proposers have been evaluated based on their written applications, they will be invited to make a presentation to the Selection Committee on their approach to perform Design-Build projects for DCPS. . . . * * * The Submittal Requirements portion of the RFQ provided, in pertinent part, as follows: Note: Please refer to Pages 4-9 of the "Procedure[] for [] Selection of Design- Build Firms" attached hereto as Exhibit "C" of this RFQ, for additional information on the following items: * * * E. Architectural/Engineering design- Submit Forms 254 and 255 for A/E team members only. Identify the architect's experience in design-build, the A/E team's experience with DOE codes, MDCPS design criteria/standards, master specifications, educational specifications and furniture, fixtures and equipment. Describe the A/E team's design coordination and quality control systems. * * * P. State of Florida licenses (design and construction)- Provide current copy of State of Florida registration and licenses for proposer and all its professional consultants. * * * R. Contractors Pre-qualification Certificate- Provide current copy of MDCPS Contractor Pre-qualification Certificate. Proposers must have a valid certificate with a minimum of $17,473,890 single project capacity, in order to be considered. * * * The pre-proposal conference referenced in the RFQ was held on July 25, 2002. Attendees were given a written document which contained, among other things, the following questions (that had been submitted in advance of the conference) and answers (that had been given to these questions by "staff"): QUESTION Can an A/E firm presently under contract with the Board for a specific school project, join with the general contractor for the same school project and present a proposal. ANSWER No! The Board views this as a conflict of interest and will not consider such entities. QUESTION Can one firm submit two different proposals, one as a single prime firm and the other as part of a joint venture? ANSWER No! The legal advertisement is very specific to this issue and will only allow one submittal per applicant, either as a single prime firm or as part of a joint venture. QUESTION Can A/E firms presently under contract with the Board as term consultants participate in a design-build entity submitting a proposal? ANSWER Yes! Staff does not see any conflict with this situation. The Board, at their meeting of April 1994, has ruled that neither a direct nor an implied conflict exists. Question: Will there be a design evaluation at the time of bidding in determining the successful bidder? ANSWER No! The successful bidder will be determined based on the bid process. All bidders are to comply with the design criteria bidding documents. However, during the selection process, we will be evaluating the design approach to this project. Question: The RFP [sic] requires the applicant to be authorized to do business in the State of Florida as a design-build entity; however, when we called the State there is none available. What do we do? ANSWER You must comply with all State requirements including required registration and licenses (Design & Construction) in accordance with Florida law. It is your responsibility to comply. MCM was among those that submitted a qualification proposal in response to the RFQ (MCM's Qualification Proposal). MCM's Qualification Proposal was accompanied by a cover letter, dated August 1, 2002, from its President, Jorge Munilla, which read, in pertinent part, as follows: MCM is pleased to submit our qualifications to provide Miami Dade County Public Schools with Design-Build Service for State School MMM * * * MCM has substantial experience with the Design-Build process as it relates to constructing educational facilities. We have assembled a team of professionals that will deliver the quality and cost efficiency required by Miami Dade County Public Schools. The team includes: PJB Associates, who[] will provide architectural services; Bliss & Ny[i]tray, [who] will supply structural engineering requirements; Fortin, Leavy, Skiles, Inc., [who] will provide civil engineering services; LIVS [and] Associates,[7] [who] is providing mechanical, electrical, plumbing and fire protection consulting expertise; and the talented firm of Rosenberg Design Group, [who] will provide Landscape Architecture design. It is significant that our team members have all participated in Design- Build projects for Miami Dade County Public Schools and therefore are acquainted with the unique relationship which it necessitates. The MCM Design-Build team will deliver the cost effective construction, timely delivery, and quality design goals that are required by Miami-Dade County Public Schools. The information that follows this letter details precisely how the MCM team will satisfy these project objectives. * * * MCM's Qualification Proposal contained a Proposer's Profile, which provided, in pertinent part, as follows: TOTAL NUMBER OF YEARS IN BUSINESS MCM Corp. is confident that our team, if selected for this project, will execute the contract and deliver functionally effective facilities in concert with M-DCPS staff. The project team and our organization are structured in such a manner as to provide clear-cut lines of communication and accountability. . . . MCM Corp. has learned that a critical factor in the achievement of project goals is the selection of a project team that has the technical knowledge and experience to deliver. The following lists the principal occupation of each member of the design- build team, their occupational license number, and the number of years they have been engaged in that practice. Team Members License Years in Business MCM Corp. General Contractors CG C023834[8] 19 PJB Associates, P.A. Architects AA 0003085[9] 5 Fortin, Leavy, Skiles, Inc. Civil Engineering 3653 19 Bliss & Nyitray, Inc. Structural Engineering 674 39 LIVS Associates MEP EB 0004134[10] 17 Rosenberg Design Group Landscape LA 0000143 31 Also included in MCM's Qualification Proposal were Standard Forms (SFs) 254 (Architect and Related Services Questionnaires) for PJB Associates, P.A. (PJB); Fortin, Leavy, Skiles, Inc. (Fortin); Bliss & Nyitray, Inc. (Bliss); LIVS; and Rosenberg Design Group (Rosenberg); and an SF 255 (Architect and Related Services Questionnaire for Specific Project) completed by PJB as MCM's proposed Project Architect (or A/E of Record). Under the arrangements that had been made, if MCM were the successful bidder on the Instant Project, it would enter into an agreement for design services with PJB and PJB, in turn, would retain the services of Fortin, Bliss, LIVS, and Rosenberg (as sub-subcontractors/sub-subconsultants on the project, having no direct contractual relationship with MCM) to assist it in fulfilling its contractual obligations to MCM. The SF 254 for LIVS was filled out by Hector Vergara, the partner that is "in charge of all [the firm's] mechanical work, and it lists the Westview Project as an "example" of the projects the firm has done in the "[l]ast 5 [y]ears." According the form, the "[c]ost of [LIVS'] [w]ork" on the Westview Project was $6,800,000.00 and the "[c]ompletion [d]ate (. . . [e]stimated)" of such work was "2003." The SF 255 reflected that Fortin, Bliss, LIVS, and Rosenberg would be "consultants" to PJB on the Instant Project in the "[s]pecialit[ies] of "[c]ivil [e]ngineering," "[s]tructural engineering," "[m]echanical/[e]lectrical/ [p]lumbing/[f]ire [p]rotection," and [l]andscape [a]rchitect[ure]," respectively, and it contained "brief resumes" of "key persons" from these entities who would be working on the project. Among these "brief resumes" were those of Mr. Vergara and Arnold Leon of LIVS, which indicated that they both had done work on the Westview Project. Among the other documents that were part of MCM's Qualification Proposal were the "job descriptions" and "resumes" of MCM personnel who would be assigned to the Instant Project, including Fernando Munilla (a principal of MCM), Alexis Leal (MCM's Vice President of Purchasing), and Riccardo Salani (an Estimator-Scheduler with MCM). Fernando Munilla's, Mr. Leal's, and Mr. Salani's resumes each listed the Westview Project as one of the projects on which they had worked. This was not the first design-build project solicitation of the School Board's to which MCM had responded. It had, "several months before," submitted a qualification proposal in response to the School Board's Request for Qualifications for Design-Build Firms for State School "FF,"11 which contained the same General Requirements, including paragraph G., as the RFQ in the instant cases. As in the instant cases, PJB was MCM's proposed Project Architect (or A/E of Record) on the State School "FF" project. TLC Engineering (TLC) was the original proposed MEP (mechanical/electrical/ plumbing) sub-subcontractor/sub-subconsultant. After MCM had submitted its qualification proposal, however, MCM and PJB wanted to replace TLC with LIVS as the proposed MEP sub- subcontractor/sub-subconsultant. When School Board staff (Ms. Bazan, Carlos Hevia of Capital Construction, and Ivan Rodriguez of the Department of A/E Selection, Negotiations and Design Management) were asked whether such a substitution could be made, they indicated that it would be "no problem."12 MCM therefore assumed, when it submitted its Qualification Proposal in the instant cases, that its proposing LIVS as an MEP sub- subcontractor/sub-subconsultant would not result in MCM's disqualification from further consideration pursuant to paragraph G. of the General Requirements of the RFQ, notwithstanding that LIVS was the School Board's A/E of Record on the Westview Project and MCM was the "completion contractor" on that same project (the identical roles LIVS and MCM had had at the time MCM was competing for the State School "FF" design- build contract). Following the review and evaluation of the qualification proposals that had been submitted in response to the RFQ in the instant cases, the School Board posted an "official interview schedule," on which the competing "design- build firms'" "initial screening scores" were announced. These scores were as follows: 105.50 for SBR; 103.50 for James Pirtle Construction Company (Pirtle); 98.00 for Betancourt Castellon Associates, Inc. (Betancourt); 93.00 for MCM; and 77.50 for the Beck Group (Beck). This "official interview schedule" also contained the following "notes": NOTE 1: Each firm must bring all equipment necessary to conduct its presentation. NOTE 2: The initial scores shall be cumulative to the interview scores. The final ranking for each firm shall consist of the initial score plus the interview score. NOTE 3: The following firm has withdrawn from the interviews: The Haskell Company Prior the first scheduled interview, Beck withdrew its proposal, leaving only four proposers to compete for award of the contract for the Instant Project. The determination was thereafter made to "pre-qualify" for bidding all of the remaining proposers without conducting the scheduled interviews. The evidentiary record does not reveal that anyone protested this "pre-qualif[ication]" decision; however, neither does it reflect that the School Board gave notice of the opportunity any adversely affected persons13 had to file such a protest and of the consequences of their not taking advantage of such opportunity. Following this "pre-qualif[ication]" decision, the proposers were provided copies of the Criteria Documents (or design criteria package) that had been prepared for the Instant Project. Volume I of the Criteria Documents contained, among other things, an Instructions to Bidders, a List of Subcontractors Form, Special Provisions for Compliance with M/WBE, General Conditions of the Design-Build Contract, and General Requirements. The Instructions to Bidders provided, in pertinent part, as follows: INSTRUCTIONS TO BIDDERS * * * The Instructions to Bidders, General Conditions of the Design-Build Contract, Special Conditions for Design-Build Projects and all other documents and sections, listed in the Specifications under the Bidding Requirements, apply equally to each Section and Division of the Specifications. All sections of the Criteria Documents are complementary and are part of the contractual requirements. 2.7.1 Board reserves the right to waive informalities and irregularities in a proposal, to reject any bid that shows omissions, alterations or additions not called for in the Criteria Documents and to reject any bid containing conditions or unauthorized alternate bids. * * * 2.8.1 A bid may not be modified, withdrawn or canceled by the bidder during the stipulated time period following the time and date designated for the receipt of bids and the bidder so agrees in submitting the bid. * * * 3.2.2 When notified by Criteria Professional, prior to or after Award of Contract by Board, the successful bidder shall meet with representatives of Board at MDCPS/DCP/DB "Kick Off" meeting. At that time, the successful bidder shall bring the Design Build Team whose work is highly crucial to the completion of the Work. . . . The List of Subcontractors Form contained the following directions: This list of subcontractors shall be submitted to the Section of Contract Management, 155, N.E. 15th Street, Miami, Florida, 33132, no later than the end of the second working day after award, i.e., for bids awarded on Wednesday, list shall be submitted by 4:30 p.m. on Friday. If the list of subcontractors is not submitted as requested, the Board may initiate action which will result in rescinding the award. Subcontractor as used herein shall be defined in Florida Statute 713.01(16)- Subcontractor means a person other than a material supplier or laborer who enters into a contract with the contractor for the performance of any part of such contractor's contract. For each subcontract listed below, the bidder shall name the subcontractor or list the bidder's firm if he/she proposes to do the work. The cost of work as quoted by the subcontractor shall be listed. If the name of a subcontractor is deleted or added, the owner shall be notified immediately along with the justification for the change. The Special Provisions for Compliance with M/WBE provides, in pertinent part, as follows: Subcontractor/Subconsultant- A person other than material person or laborer who enters into a contract with a contractor for the performance of any part of such Design Builder's contract. Design or other required consultant services contracted for, in the performance of this contract will be considered as a Subcontractor. . . . The General Conditions of the Design-Build Contract provided, in pertinent part, as follows: General Conditions of the Design Build Contract * * * 1.1.2 The Contract The Contract represents the entire integrated agreement between the parties hereto and supercedes prior negotiations, representations or agreements, either oral or written. The Contract may be amended or modified only by a Modification. The contract shall not be construed to create a contractual relationship of any kind (1) between the Board and a Subcontractor or Sub-subcontractor, or (2) between any persons or entities other than the Board and the Design-Build Contractor. The Contract Documents include the Criteria Documents and the approved Construction Documents. * * * 3.1.1 The "Design-Build Contractor" is the person, firm or corporation authorized to do business in the State of Florida and properly licensed or registered for the work to be performed with whom the Contract has been made with the Board for the performance of the Work described in the Criteria Documents. "Contractor" refers to a third party Contractor. * * * 3.3.2 The Design-Build Contractor shall be responsible to the Board for acts and omissions of the Design-Build Contractor's employees, Subcontractors and their agents and employees and other persons performing portions of the Work under the Contract and shall be responsible to the Board for coordination and complete execution of the Work in accordance with the Contract. * * * 3.3.6 The Design-Build Contractor shall enforce strict discipline and good order among its employees and other persons carrying out the Contract including its Subcontractors and Sub-subcontractors. . . . * * * 3.9.2 During the Construction Phase, the Design-Build Contractor shall employ a competent, full time, on-site Superintendent, the Design-Build Contractor's A/E of Record Representative, who participated at least fifty percent (50%) of his/her time during the Design Phase, and shall be on site at a minimum of 50% of the working hours of each week. An M/E/P coordinator and necessary assistants shall be in attendance at the job site during the performance of the Work. . . . The Design-Build Contractor's A/E of Record on-site Representative shall not be used for checking shop drawings. The Superintendent, the Design-Build Contractor's A/E of Record Representative, M/E/P Coordinator and the major Subcontractor's Superintendents shall be fluent in English. * * * 3.12.1 Shop drawing are drawings, diagrams, schedules and other data specifically prepared for the Work by the Design-Build Contractor or a Subcontractor, Sub- Subcontractor, . . . to illustrate some portion of the Work. The Design-Build- Contractor, Subcontractor, Sub- Subcontractor, . . . shall not use the Design-Build Contractor's A/E of Record contract drawings as shop drawings, but the Design-Build Contractor shall require these entities to produce and submit such documents independently. * * * 3.18.1 The Design-Builder shall negotiate a fair and equitable agreement with each of the Architect/Engineer consultants listed in the Design-Builder's response to the request for qualifications for this project. The Design-Builder may choose additional A/E consultants, for which prior written notice to Board shall be given, but shall not terminate or replace those A/E consultants originally designated without the prior written approval of the Board. When requesting termination or replacement of A/E consultants, the Design-Builder must submit the following items: Letter requesting written Board approval of the action, stating clearly the reason for such request and the proposed replacement A/E consultant(s). Signed and sealed or notarized release from the A/E consultant(s) being replaced or justification acceptable to the Board that such release is not obtainable. Federal Standard Form 255 and 254 of the proposed A/E consultant(s). Site specific professional liability insurance incorporating the proposed A/E consultant(s) in the policy. A hold harmless clause signed and notarized . . . . * * * 4.1.1 The Board's Representative (also referred to as the "Design Criteria Professional" or "DCP") will provide administration of the Contract as described in the Criteria Documents . . . * * * 4.2.6 The DCP will review and approve or take other appropriate action upon Design- Build Contractor's submittals, previously approved by the Design-Build Contractor's A/E of Record such as Shop Drawings, Product Data and Samples, for conformance with the information given and the design concept expressed in the Criteria Documents. . . . * * * 4.2.12 The Design-Build Contractor and Design-Build Contractor's A/E of Record shall provide DCP which will confirm completeness and correctness of same and forward to Board for Board's review and records, the written documents required by the Contract to be provided such as Warranties, Operation and Maintenance Manuals, as-built drawings, releases of claim and other documents required of the Contract. The DCP will process any pending Change Order requests and evaluate the assessment of liquidated damages, if any. Upon its determination that the Design-Build Contractor and Contractor[']s A/E of Record has fulfilled the requirements of the Contract, the DCP will issue a final Certificate for Payment. * * * A Subcontractor is a person or entity other than a materialman or laborer who enters into a subcontract with the Design- Build Contractor for the performance of any part of the Design-Build Contractor[']s Work. The term "Subcontractor" is referred to throughout the Contract as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor (sometimes referred to as a "third party contractor" ) or subcontractors of a separate (third party) contractor. A Sub-subcontractor is a person or entity other than a materialman or laborer who enters in to a sub-subcontract with a subcontractor for the performance of any part of such subcontractor's contract. The term "Sub-Subcontractor" is referred to throughout the Contract as if singular in number and means a Sub-subcontractor or any authorized representative of the Sub- subcontractor. The term "Sub-subcontractor" does not include separate subcontractors of a third party contractor. All Subcontractor's shall be licensed and/or certified as required by the Florida Building Code and state statutes. Separate permits may be required including but not limited to electrical, plumbing, mechanical, and roofing work. * * * As stated in the Instructions to Bidders, the Design-Build Contractor shall furnish in its proposal to Board the list of Subcontractors, Sub-subcontractors and materialmen (including those who are to furnish materials or equipment fabricated to a special design) proposed for each principal portion of the Work . . . . If Board has a reasonable objection to any proposed Subcontractor, Sub- subcontractor or materialman, Board will promptly notify Design-Build Contractor. The Design-Build Contractor shall not contract with any proposed Subcontractor, Sub-subcontractor or materialman to whom Board has made a reasonable objection pursuant to Subparagraph 5.2.2. If Board has a reasonable objection to a Subcontractor, Sub-subcontractor or materialman, the Design-Build Contractor shall propose another to whom the Board has no reasonable objection. A Subcontractor, Sub-subcontractor or materialman may be added to the list of Subcontractors, Sub-subcontractor[s] or materialmen if required for performance of Change Order Work. A listed Subcontractor, Sub-subcontractor or materialman may be changed only upon written approval of the Board. The request to change shall state reasons for the request and shall be accompanied by a signed and notarized release from the listed Subcontractor or Contractor's Affidavit to Board that such a release is not obtainable. * * * The General Requirements include Procedural Requirements, Subsections 2.03 and 9.01 of which provide as follows: 2.03 DESIGN-BUILDER ("D-B") D-B shall appoint its D-B Project Manager which is D-B's representative for the Project. The collective management of D-B services, including D-B'[s] architect, engineers and other consultants, is to be vested in D-B Project Manager. D-B Project Manager is the representative of D-B and all communications are to be through him/her to DCP and M-DCPS Project Manager. D-B Project Manager's role does not preclude the involvement of D-B's architect, engineers and other consultants. The architects, engineers and other consultants with responsibility for different aspects of the Project are to attend appropriate meetings but this must be coordinated with D-B Project manager. 9.01 PRE-CONSTRUCTION CONFERENCE Prior to beginning construction, DCP (through PM) shall schedule a Pre- Construction Conference. Ten (10) days notice is required for the meeting. At minimum, the following parties shall attend: DCP Team (DCP) Design-Builder Team (D-B) PM Major Subcontractors Region Superintendent Principal BCC Representatives Testing Lab Consultant HVAC Test & Balance Consultant H. Others as applicable. * * * Section 01012 of the General Requirements discusses the Project Architect. It provides as follows: PROJECT ARCHITECT (Also referred as Architect/Engineer of Record or D-B'[s] A/E. The Project Architect (A/E of Record) is a Principal, Partner, Agent, Subcontractor or Employee of the Design-Builder,[14] and is the person lawfully licensed to practice Architecture and Engineering or an entity lawfully practicing Architecture and Engineering identified as such in the Contract; and is referred to throughout the Criteria Documents as is singular in number. The term Architect/Engineer of Record means the Architect/Engineer of Record or its authorized representative. Whenever the terms Design-Builder's A/E or A/E is used throughout the Criteria Documents, it refers to the Project Architect. DUTIES AND RESPONSIBILITIES OF THE PROJECT ARCHITECT The Project Architect shall have all the duties and responsibilities established under the applicable State Statutes regulating the professions of Architects and Engineers. The Project Architect shall employ a Project Manager and necessary assistants, and shall be responsible for managing all design and production of Design and Construction Documents and the coordination of its implementation during the construction. The Project Architect shall review and approve or take other appropriate action upon Subcontractor submittals, such as Shop Drawings, Product Data and Samples prior to their submittal to the DCP for approval. The Project Architect shall consult with the DCP concerning all items related to the design and production of the Construction Documents. The Project Architect shall be responsible for the preparation of the Record Drawings. Prior to Design-Builder's request for determination by DCP of substantial completion, the Project Architect shall determine, on his/her own, that the Project has achieved substantial completion. The Project Architect shall inspect the work and provide, through the Design-Builder, a punchlist of all items to be completed or corrected. Upon receipt of request for determination of substantial completion from the Design-Builder, the DCP shall proceed to determine if the work is ready for inspection as provided under the General Conditions. All four remaining proposers, MCM, SBR, Pirtle, and Betancourt, submitted sealed bids. The bids were opened on December 17, 2002, and subsequently tabulated. MCM had the lowest "base bid" ($17,673,600.00). SBR had the second lowest "base bid" ($18,037,446.00). Betancourt's and Pirtle's "base bids" were $18,269,000.00 and $19,540,000.00, respectively. Following the tabulation of bids, School Board staff recommended to the members of the School Board that the contract for the Instant Project be awarded to MCM as the lowest bidder. On February 6, 2003, SBR, through counsel, filed a notice of protest with the School Board, which read as follows: This firm represents SBR Joint Venture, who as you know, has submitted a proposal for construction of the above-referenced [p]roject [the Instant Project]. It has come to our attention that MCM Corp. ("MCM") who submitted a proposal to provide design build services for the above- referenced project, must be disqualified from further consideration in connection with an award of the Project due to MCM's failure to comply with general requirements as promulgated by the Miami-Dade County Public Schools relative to the Project. Specifically, item I G of the General Requirements mandates that: " Any proposer, firm or company desiring to participate in this process must not have as a part of its team an A/E firm presently under contract with the Board for a specific project and a General [c]ontractor for the same project." As disclosed by MCM in its proposal to construct the [p]roject, MCM is currently performing substantial work connection with another project known as the Westview Middle School-remodeling and renovation ("Westview"). The architect under contract with the School Board regarding the Westview Project is LIVS and Associates. In conflict with the qualification general requirements, MCM's proposal to construct school MMM contemplates the formation of a design build team which will include LIVS and Associates, as its mechanical, electrical, plumbing and fire protection consulting engineers. As such, the proposal by MCM is violative of the requirements of design/build firms in order to qualify for the Project. Back-up documentation including, but not limited to, material portions of the request for qualifications and disclosures by MCM are attached for your review. Under the circumstances, we respectfully request that MCM be disqualified from performing any services in connection with [p]roject and the second [lowest] bidder, which is SBR Joint Venture, be awarded the Project. MCM responded to SBR's notice of protest by letter dated February 10, 2003, in which it argued that SBR's protest was without merit and "should be dismissed" and further stated, among other things, the following: The Contract documents permit[] the board to waive all irregularities. If the board were to consider that Ivan Rodriguez, Carlos Hevia and Blanca Bazan[15] misspoke on behalf of MDCPS when they approved LIVS as part of the MCM Design Build team, and or if the board were to consider the inclusion of LIVS as part of the Design Build Team as a conflict, then if that be the case, by this letter MCM hesitantly tenders substitution of LIVS (who has graciously agreed), with SDM Consulting Engineers, Inc., who is also fully qualified, has had extensive experience with DCPS and has agreed to take on the challenge. The members of the School Board were scheduled to vote at their February 12, 2003, meeting on staff's recommendation to award the contract for the Instant Project to MCM, but the "item [was] tabled" because of the pendency of SBR's protest. At the meeting, the School Board Attorney told the School Board members that he had "reviewed [SBR's] protest with staff and [they had] come to the conclusion that [they did not] agree with [SBR's] position," explaining, in part, as follows: The language [of paragraph G. of the General Requirements of the RFQ] is interpreted that if you have the A/E and the general contractor, who are under contract with the board on the same project, that is considered a conflict. In this particular instance, you have a third element here. One, is that the bonding company took over this project and the bonding company brought MCM in as a subcontractor, if you will, a completing contractor here in this particular instance. So, it was never the intent of this language to cover a situation other than one where you had both the A/E and the general contractor under contract with the board. Construing the language of paragraph G. of the General Requirements of the RFQ (which is not clear and unambiguous on its face) as not "cover[ing] [the] situation" present in the instant cases is not at all unreasonable. Because it has a contract with the Surety and not the School Board, MCM is not the Westview Project's "General contractor"16 as that term is typically used in the construction industry.17 Since there is no language manifest in the proposal/bid solicitation documents in evidence which compels the conclusion that, for purposes of the solicitation, this accepted industry meaning of the term was not intended, it is entirely appropriate to rely on this meaning and find, as did School Board staff, that MCM's role in the Westview Project does not disqualify its proposal from consideration under paragraph of the General Requirements of the RFQ.18 Moreover, even if it could not be reasonably disputed that MCM was the Westview Project's "General contractor" within the meaning of paragraph G. of the General Requirements of the RFQ (which, as noted above, is not the case), MCM's proposed use of LIVS on the Instant Project would still not, under every reasonable interpretation of the paragraph, create a "conflict of interest" of the type the paragraph prohibits. It is not beyond reason, particularly when the provisions of the Criteria Documents are considered19 (most significantly, Subsection 3.18.1 of the General Conditions and Section 01012 of the General Requirements), to conclude that an "A/E firm" on the design- build "team," within the meaning of paragraph G., does not refer to an entity, like LIVS, that is neither the design-builder seeking the contract for the Instant Project, a member of such a design-builder (where it is joint venture or partnership), the design-builder's proposed "Project Architect" as described in Section 01012 of the Criteria Documents' General Requirements (who is also referred to therein as the "Architect/Engineer of Record" or "A/E"), nor any other Architect/Engineer consultant with whom the design-builder intends to contract in accordance with the requirements of Subsection 3.18.1 of the Criteria Documents' General Conditions, but rather is merely a proposed MEP sub-subcontractor/sub-subconsultant (that is, a third-tier contractor). The evident purpose of paragraph G. of the General Requirements of the RFQ is to avoid a situation where a firm acting as the School Board's A/E of Record on another School Board project let under the "traditional bid contract scenario" is inclined to deal with the "General contractor" on that project in a lax manner compromising the School Board interests because of a relationship the firm has with that "General contractor" on the Instant Project.20 The chance of this happening if the firm were merely a third or lower tier contractor on the Instant Project would be remote, so remote that it is reasonable to believe (as John Pennington, the School Board's Director for Construction Compliance, who was "intimately involved in making [the language in paragraph G.] the final language," credibly testified) that it was not the School Board's intent, in including paragraph G. in the General Requirements of the RFQ, to eliminate a potential competitor based on this possibility.21 Had the School Board intended otherwise, it could have made its intent clear and unmistakable by having the first sentence of paragraph G. read as follows: "Any proposer, firm or company desiring to participate in this process must not propose to have working on the instant project in any capacity, including as a third or lower tier contractor, both a firm that is presently serving under a contract with the Board as the Board's A/E of Record on another project and a firm that is a General contractor for that same project." It did not do so, however. Instead, it used language in paragraph G. reasonably susceptible to the interpretation that, under this provision, proposing to use as an MEP sub-subcontractor/sub- subconsultant on the Instant Project a firm that is the School Board's A/E of Record on another project does not disqualify a proposer even if the proposer is the "General contractor" for that other project. Following the School Board meeting, SBR, on February 16, 2003, filed its formal written protest of the intended decision to award the contract for the Instant Project to MCM. On February 18, 2003, Fernando Munilla sent a letter to School Board member Dr. Marta Perez, which read, in pertinent part, as follows: MCM has been informed that unfortunately MCM's response to SBR's bid protest was not provided to you prior to the February 12, 2003, Board meeting. We enclose same for your ready reference. We respectfully request you inquire on the particulars raised in our letter, and if you agree with your staff's recommendation (that SBR's alleged irregularity in MCM's bid lacks [sic] merit), then we ask you move the Board to exercise its right to waive the alleged irregularity, as permitted by the bid documents under section 00100 page 4 subsection 2.7.1 in order that MCM continue to work on the project. On March 4, 2003, the School Board Attorney sent a memorandum to the Superintendent of Schools advising that upon further review of the matter he had changed his opinion and was now of the view that SBR's protest had merit, explaining in the memorandum as follows: This specification [paragraph G. of the General Requirements of the RFQ] prohibits a proposer from having as a part of its Design-Build team an Architect/Engineer (A/E) firm who is under contract with the Board for a specific project and General Contractor for the same project. The specification provides that the Board considers this a conflict of interest and such proposals would not be considered for award of the contract. MCM submitted a proposal which has LIVS [and] Associates, an A/E firm under contract for the Westview Middle School project as part of its team. MCM is the General Contractor on the Westview Middle School project under a contract with the surety company to complete the project as the completing contractor. MCM contends that in view of the fact that they are the completing contractor and are not in direct contract with the Board for the project, this particular provision should not apply. We disagree. The particular specification in question does not specify or require that the general contractor for the same project be under contract with the Board. Conflict exists by virtue of the fact that the A/E, acting on behalf of the Board for the Westview Project, has to inspect and review the work of MCM and, with this proposal, will be in business with MCM on another Board project. Accordingly, MCM's proposal should not have been considered for award. While it is true that, in paragraph G. of the General Requirements of the RFQ, the School Board did not include the words "under contract with the Board" after "General contractor," if it intended that "General contractor," as used in paragraph G., have the same common meaning as the term has in the construction industry (and there is no language in the proposal/bid solicitation documents in evidence compelling the conclusion that it did not have such an intent), these additional words would have been redundant because, as noted above, a "General contractor," as that that term is typically used in the construction industry, is necessarily one who is "under contract" with the owner. Furthermore, contrary to the suggestion made by the School Board Attorney in his March 4, 2003, memorandum, under MCM's proposal, MCM and LIVS would not have a direct business relationship22; rather, LIVS would be doing business with PJB.23 While LIVS' participation (as a third-tier contractor) in the Instant Project with MCM may create a potential "conflict" for LIVS, this potential "conflict," at least arguably, is not the type that is prohibited by paragraph G. of the General Requirements of the RFQ. On March 11, 2003, MCM and PJB sent the following letter to the School Board: This letter will serve as our formal request to replace the engineering firm of LIVS originally selected for State School MMM [with] SDM Consulting Engineers in which MCM's architect of record, PJB Associates, P.A., had entered LIVS as their mechanical and electrical consultants for the above referenced project [the Instant Project]. Even though we consider LIVS to be an excellent engineering firm, d[ue] to an alleged conflict of interest that is said to exist, we are respectfully requesting replacement to prevent controversy.[24] We also request that you submit this to M- DCPS's Legal Department to verify if there is any conflict; and if so, we respectfully request a written reply. In the absence of a reply within the next three working days, we will assume that this issue has been resolved. Thank you in advance for your attention. Also on March 11, 2003, MCM, anticipating that it would not be awarded the contract for the Instant Project, sent the School Board another letter, which read as follows: This letter will serve as notice of the intent of Magnum Construction Management Corporation (MCM) to protest any decision of the Miami-Dade County School Board to reject all bids on the Miami-Coral Park Project. Based on information obtained to date, MCM will assert that the decision to reject all bids is based on the false assumption that under the terms of the Request for Qualifications, MCM was disqualified to bid on the Miami-Coral Park Project and that bids on the project were over budget. MCM will assert that it was qualified to bid on the project and that its bid was responsive and within the budget. MCM subsequently filed a formal written protest and an amended formal written protest. On March 12, 2003, the Design Criteria Professional for the Instant Project sent a letter to Ms. Bazan advising her that the three lowest bids submitted for the Instant Project "were within the budget of $17,473,891.36," and that the two lowest bids, those submitted by MCM and SBR, were "substantially below the State of Florida allowable cost per student station under the Smart Schools Clearinghouse." On March 26, 2003, the School Board referred SBR's and MCM's formal written protests to DOAH. A day later, it referred MCM's amended formal written protest to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order rejecting SBR's protest and awarding the contract for the Instant Project to MCM. DONE AND ENTERED this 1st day of August, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 1st day of August, 2003.
