Findings Of Fact On August 22, 29, and September 5, 1994, Respondent, School Board of Dade County (School Board), advertised for bids for Project No. KS-0004, Roof Repair/Replacement and Asbestos Removal at American Senior High School. The advertisement stated that "The mechanical and electrical trades have been set aside to be performed by a minority-owned and operated firm." The advertisement made no mention of any requirement that the set-asides were to be performed by minority-owned and operated firms certified by Dade County Public School/Division of Business Development and Assistance (DBDA). The bid and contract documents which were delivered to all interested bidders including Petitioner, Murton Roofing Corporation (Murton), contained page 00030-2 providing various definitions, including the definition of "minority owned and operated business participation" as follows: MINORITY OWNED AND OPERATED BUSINESS PARTICIPATION - This bid is limited to those individuals and businesses (51 percent) owned and controlled by African-American, Hispanics, and Women which are so listed by the Dade County Public Schools/Division of Business Development & Assistance prior to bidding, or to provide sufficient data to verify and certify such ownership and control at the time of the bid. Award will be made to the low bidder meeting this and other project specifications and requirements. Page 00030-2 had been included in the project specifications section dealing with legal advertisements. By addendum issued September 8, 1994, the School Board deleted this page from the bid documents. Section I A of the Special Provisions, page 1 defines Minority/Women Business Enterprises as follows: Any legal entity which is organized to engage in commercial transactions and which is at least 51 percent owned and controlled by minority persons. Minority person means a person who is a citizen or lawful permanent resident of the United States and who is: An African American, a person having origins in any of the black racial groups of Africa; An hispanic, a person of Spanish or Portuguese culture including, but not limited to persons with origins in Mexico, South America, Central America or the Caribbean Islands regardless of race. A woman. The Project Manual defines a "M/WBE Certification Application" as a "statement signed by an M/WBE contractor, containing certain information with respect to the ownership and control of the firm (See Attachment B-FM 3920)." Page 16 of the Project Manual states that "[a]t any time there is a change in ownership or control of the firm, the M/WBE shall, immediately following the change, submit a new M/WBE Certification Application." Page 2 of Section 1 A of the Special Provisions provides: A subcontractor is qualified to do specific work if it meets all of the following criteria: It has or is able to obtain any and all bonds, insurance and licenses required to do such work; It has the necessary experience, financial ability, organization, technical qualifications, skill and facilities to do such work; It is able to comply with the performance schedule reasonably needed for such work; It does not have an unsatisfactory record of integrity, judgment or performance; It is able to meet the applicable equal employment opportunity requirement if stipulated; and It is not otherwise ineligible to perform such work under applicable law and regulations. Nothing delineated herein shall be interpreted to waive the requirement that the Subcontractor be legally licensed and certified at the time it is scheduled to perform such work. Section III, titled Bid Documents, Section III A, Submittals, states: As a condition of responsiveness, all bid submittals shall contain the documents and information required below. Non-submittals or incomplete submittals shall be cause for finding a Bidder nonresponsive and for the contract not to be awarded to the Bidder. Failure to submit completed forms and other required information, within the time period specified, can neither be cured by supplementary submittals and testimony at hearings, nor shall the nonresponsiveness of the bid be waived, negotiated or compromised. In its bid, Murton listed Goral Enterprises (Goral) as the subcontractor for the mechanical work on the project. Murton indicated on the subcontractor list that Goral was a woman business enterprise. At the time that Murton submitted its bid, Goral was not certified as a M/WBE by DBDA and Murton did not submit with its bid an application from Goral for certification as a M/WBE by DBDA. Goral was certified as a Disadvantaged Business Enterprise (DBE) by Metropolitan Dade County's Department of Business and Economic Development. Murton relied on Goral's DBE certification to met the M/WBE requirements of the project specifications. The DBE program is a separate program from the School Board's M/WBE program. The School Board does not give reciprocity to contractors who are certified as DBE's for acceptance in the School Board M/WBE program. Goral had been denied certification as an MBE by the Commission on Minority Economic and Business Development approximately two weeks prior to Murton submitting its bid for the project. The project specifications do not state that a contractor certified as a DBE will be deemed to meet the criteria of a M/WBE. Intervenor, A-1 Duran Roofing, Inc., also submitted a bid on the project; however, its bid was rejected as nonresponsive. By letter dated October 13, 1994, the School Board advised Murton that it was not in compliance with the special provisions of the project specifications because Goral was neither certified as a M/WBE nor had certification pending; therefore Goral could not be used to meet the M/WBE requirements for the mechanical work on the project. By letter dated October 14, 1994, Murton requested a meeting with the Contract Administrator to discuss the Notice of Noncompliance issued the day before. A meeting was held on October 18, 1994. On October 21, 1994, the School Board issued a Final Notice of Noncompliance. On October 26, 1994, the School Board issued a Revised Final Notice of Noncompliance, wherein it inaccurately stated that the legal advertisement required that the M/WBE's be certified by the DBDA at the time of submittal or that the bid submittal contain sufficient data to verify and certify M/WBE qualification. However, the Revised Final Notice of Noncompliance also stated that the bid document when read as a whole required that the M/WBE be either certified or pending certification at the time of bid submittal or that a certification application be submitted with the bid. The notice stated that Goral did not meet the requirements of the bid documents for a M/WBE. Murton requested an appeals hearing before the Certification Appeals Committee (Committee). The hearing was convened on October 26, 1994, at which time it became apparent to the Committee that the October 21, 1994 letter contained an error in that the paragraph stating that M/WBE's must be certified by the DBDA prior to bidding or provide sufficient data to verify or certify such ownership and control at the time of bid had not in fact appeared in the advertisement and the second page of the advertisement in the project manual which represented that this language had been a part of the advertisement had been removed by addendum. The meeting was recessed in order to review and obtain clarification of documentation presented by Murton. The Committee reconvened on November 15, 1994. At that time, upon reviewing the project manual and other documentation, the Committee determined that the language remaining in the Project Manual, read as a whole, did require DBDA certification and voted to uphold the determination of noncompliance. The School Board has interpreted similar project specifications to require that the proposed M/WBE be certified by DBDA at the time of bid submittal or that the bidder submit sufficient data with the bid to be able to determine whether the entity qualifies as a M/WBE. Such data is to be submitted on the application form contained in the project specifications as Attachment B- FM 3920, which is the form used by DBDA for application for certification as a M/WBE. The School Board has on numerous occasions rejected bidders for failure to submit either currently certified M/WBE's as subcontractors or for failure to submit an application for DBDA certification for the subcontractor with the bid. School Board Rule 6Gx13-3G-1.02 delineates the objectives for its M/WBE program. The rule states that the program's objectives may be accomplished by affirmative actions which include set aside contracts, subcontracting goals, prime contracting and designated scopes of work. In the instant case the School Board had designated certain portions of the work of the project to be performed by M/WBE firms. School Board Rule 6Gx13-3G-1.02 IV. provides: In order to ensure that business firms seeking to participate in the M/WBE Program are at least fifty-one (51) percent legitimately owned, operated and controlled by minorities, each M/WBE firm shall be required to be certified as to its minority ownership at the time of each bid award. Such certification shall be on the basis of a completed M/WBE Certification Application with supporting documentation, submitted by the firm, sworn to by an officer of the firm, invest- igated and verified by the Division of Business Development and Assistance, prior to any contract award. The School Board desires to rebid the project. On January 9, 1995, the School Board placed a new legal advertisement for bid on the project, specifically indicating that it would require and accept only DBDA certified M/WBE's.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Murton Roofing Corporation's Petition and rejecting all bids for the project and rebidding the project. DONE AND ENTERED this 1st day of March, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 1st day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6919 To comply with the requirement of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-5: Accepted in substance. Paragraph 6: Accepted that Goral was certified as a DBE but rejected that DBE certification meant that Goral was qualified as a M/WBE. Paragraphs 7-11: Accepted in substance. Paragraph 12: Accepted that that portion was deleted, but rejected to the extent that it implies that section was the only portion of the bid documents relied upon by the School Board. Paragraphs 13-15: Rejected as not necessary. Paragraph 16: Accepted in substance. Paragraph 17: Rejected as constituting argument. Paragraph 18: Accepted to the extent that that was his testimony. Paragraphs 19-22: Accepted in substance. Paragraphs 23-24: Rejecting as constituting argument. Paragraphs 25-26: Rejected as subordinate to the facts actually found. Paragraph 27: Rejected as constituting argument. Paragraph 28: There is no paragraph 28. Paragraph 29: Rejected as constituting argument. Paragraphs 30-31: Rejected as not supported by the greater weight of the evidence. Respondent's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraph 4: The first two paragraphs are rejected as unnecessary. The remainder is accepted in substance. Paragraphs 5-10: Accepted in substance. Paragraphs 11-12: Rejected as constituting argument. Paragraph 13: Rejected as subordinate to the facts actually found. Paragraph 14: The first sentence is rejected as constituting argument. The second sentence is accepted in substance. COPIES FURNISHED: Vincent F. Vaccarella, Esquire Elder & Kurzman Grand Bay Plaza, Suite 702 2665 South Bayshore Drive Coconut Grove, Florida 33133 Phillis O. Douglas Board Attorney Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Steven M. Rosen, Esquire 5601 Building 5601 Biscayne Boulevard Miami, Florida 33137 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue, #403 Mimai, Florida 33132-1308 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact Introduction On March 31, 1983, Respondent, Department of Transportation (Department), gave notice to qualified contractors that it would receive sealed bids on the following project: BROWARD COUNTY: FEDERAL AID PROJECT NO. I-iD-75-4(38)225 (JOB NO. 86075-3417), SR-93, (I-75), from S. of Nova Dr. to S. of S.W. 13th St.. Work consists of Extra Heavy Embankment; Pav't. of Alt. 10" Limerock Base or 9", 7" or 6" Asph. Base Cse. (Type 1, 2 or 3) and Section of Alt. 8" Limerock Base of 7 1/2", 6" or 5" Asph. Base Cse. (Type 1, 2 or 3) all with Type S Structural Cse. and Asph. Conc. Fri-tion Cse. (FC-2), Shoulder Pav't.; Two Bridges (OAL 821') of Conc. Slab Deck and Prestr. Conc. Beams on Conc. Piers and Spread Footings; Conc. Handrail (Barrier and Sidewalk); Conc. Box Culverts; Storm Sewer and Small Drainage Structures; Conc. Curb and Gutter and Shoulder Gutter; Staked Silt Barrier; Guardrail (Rdwy.); Fencing; Roadway Signs; Pav't. Markings (Rer. Pav't. Markers and Thermoplastic Striping); and Incidental Items. Length 1.914 miles. (B. I. 440803) cost $20.00 FEMALE GOAL 1 percent M.B.E. GOAL 5 percent TOTAL M.B.E. GOALS 6 percent NOTE: ON-THE-JOB TRAINING WILL BE REQUIRED FOR THIS PROJECT. (Approx. 550 Cal. Days) The project is also known as the "Nova Drive Project". Such bids were to be received by the Department no later than April 27, 1983. Seven construction firms submitted bids on the project. As is pertinent here these included petitioner, Badgett Resources, Inc. (Badgett), a firm located in Fort Lauderdale, Florida, and respondent, Capeletti Brothers, Inc. (Capeletti), a firm with principal offices located in Miami, Florida. Capeletti submitted a bid for $6,917,515.50, which was the lowest bid on the project Badgett's bid was for $6,922,625.50, or $5,110.00 higher than the Capeletti bid, and was the next lowest bid. On April 27, 1983 the Department opened the sealed bids. Because certain information was not furnished with Capeletti's bid, Capeletti made another submittal on May 9, 1983. After reviewing this information, and having further communications with Capeletti, the Department finally concluded on May 17, 1983, that Capeletti met all applicable requirements. Thereafter, on May 20, 1983 the Department posted the bids and designated Capeletti as the lowest responsive bidder. On May 23, 1983 Badgett filed its notice of protest in which it requested a formal hearing prior to the award of the contract to Capeletti. That same day the Department notified Badgett that because it believed the failure to proceed with the award of the contract "would result in an immediate and serious danger to the public health, safety and welfare", it intended to immediately award the contract to Capeletti pursuant to Subsection 120.53(5)(c), Florida Statutes. It did so since the project was federally funded with Discretionary Interstate Lapse Funds, and if work did not commence prior to June 27, 1983, the State would suffer the loss of those funds. Capeletti began construction on the project prior to June 27 and has actively continued such work since that time. Bid Specifications According to the notice requesting bids, all work related to the project had to comply with the "Plans, Specifications and Special Provisions of the State of Florida Department of Transportation." These bidding requirements are more commonly known as the Bid Specifications. As is pertinent here, the Bid Specifications included a requirement that each bidder comply with the Minority Business Enterprises (MBE) requirements developed by the Department. The Department has a policy that firms owned and controlled by minorities or women shall be given the maximum opportunity to participate in the performance of contracts let by the Department. In this vein it has established overall minority goals in Rule 14-78.03, Florida Administrative Code, for its MBE program. These include contract goals for minority business enterprises (firms owned and controlled by minorities) and contract goals for women business enterprises (firms owned and controlled by women), both of which applied to the project in question. The MBE goals for the Nova drive Project were 5 percent for minority business enterprises and 1 percent for women business enterprises. This meant that 5 percent and 1 percent of the estimated total dollar value of the contract should have been performed by certified minority and women controlled enterprises respectively. However, Rule 14-78.03(1)(c)2. provides that if the successful bidder cannot meet the 5 percent and 1 percent goals, it "must satisfy the Department that the contractor has made good faith efforts to meet the goals." In this regard, the Rule requires that the bidder "actively and aggressively" attempt to comply with the goals, and sets forth nine relevant factors or types of effort that may be considered in determining whether a good faith effort has been made. (Rule 14-78.03(1)(c)2.a.i.-ix). The Rule cautions that "pro forma" good faith efforts are unacceptable. Department rules and the Bid Specifications made it quite clear that in order to be eligible to participate as MBE's the Department must first certify the firm. The specific requirements for certification are set forth in Rule 14- 78.05, Florida Administrative Code. A failure to comply with these requirements can result in the denial of a bid award. The Bid Specifications provided the following requirement pertaining to the submission of information showing compliance with the MBE goals: The Florida Department of Transportation prefers the Minority Business Enterprises Form I to accompany the bid documents. If this is not possible, the form must be received by the Florida Department of Transportation's Office of Minority Programs, attention MBE Liaison Officer, no later than ten (10) calendar days after the bid opening date. (Emphasis added) The term "calendar day" is defined in the Bid Specifications as "every day shown on the calendar, ending and beginning at Midnight". Since the bid opening date was April 27, 1983, a strict interpretation of this standard required that the MBE submissions by the bidders to be filed with and received by the Department's Office of Minority Programs no later than Saturday, May 7, 1983. This is confirmed by a memorandum prepared by the Secretary of the Department on June 4, 1982 which was sent to all prequalified contractors and clarified the requirements relative to MBE's. There he stated that "(i)t must be remembered that all the above information (including MBE Utilization Form No. 1) is to be in the Department's hands within ten (10) days following the bid opening as opposed, for example, to simply being mailed within the ten-day-period." However, it-has been an informal Department policy for many years to require a document to be filed on the next following Monday when the original deadline falls on a Saturday or Sunday. The Minority Business Enterprises Certification Form No.1 to be submitted in conjunction with the bid, or ten days thereafter, is a two-page Department prescribed form that identifies each minority subcontractor to be used on the project by the contractor, the class of work, dollar amount of work, percent of contract, sex, type of minority, and whether the subcontractor has been certified by the Department as an MBE. The Bid Specifications provide not only that "(t)he MBE Utilization Form No.1. . .only include firms which are certified by the Department", but also that they be ". . .certified prior to the submission of the. . .Form". (Emphasis added). MBE Submissions by the parties Badgett submitted its MBE Utilization Form No.1 with its bid on April That form reflected that Community Asphalt, Post Office Box 9179, Pembroke Pines, Florida, would perform the paving portion of the project at a cost of $1,022,853.97, or 15 percent of the total contract. Community is Hispanic owned and controlled, and was represented on the form as being certified by the Department. A female controlled firm identified as Triple J, Post Office Box 6321, Fort Myers, Florida, was listed as the grassing subcontractor, which represented 2 percent of the total contract. These percentages exceeded the 5 percent and 1 percent goals established by the Department. Badgett did not utilize the lowest bid it received for grass work since that was submitted by a non-MBE firm. Had it done so, its bid on the project would have been $7,111.63 lower, or approximately $2,000 less than the overall bid submitted by Capeletti. Capeletti did not submit an MBE Utilization Form No. 1 or its MBE "good faith efforts" submittal with its sealed bid. Neither did it make such submissions by the tenth calendar day, or May 7, 1983. On the following Monday, May 9, Capeletti filed an incomplete MBE Utilization Form No. 1 and a "good faith efforts" submittal. Form No. 1 reflected that Pro Contracting, Inc., 15111 Falkirk Place, Miami Springs, Florida, a Hispanic owned and controlled firm, would perform 5.04 percent of the total contract work. In answer to the question of whether the firm has been certified by the Department, Capeletti answered that such certification had been "applied for". Capeletti also listed three female owned and controlled firms, Len Hazen Painters, Inc., Advance Barricades and Signing, Inc., and C & G Specialties, Inc., as being subcontracted to perform 1 percent of the total contract price. The first two firms were shown as being certified by the Department while Capeletti indicated that, like Pro Contracting, certification for C & G Specialties had been "applied for". The percentage levels (5.04 percent and 1 percent) met the Department established goals. Although Capeletti indicated on its Form No. 1 that MBE certifications had been "applied for", this was incorrect. Neither Pro Contracting or C & G Specialties had in fact filed such an application on that date. Further, C & G Specialties had not applied for certification as of the time of the final hearing in mid-August. Both firms were also conspicuously omitted from the directories published by the Department which listed all MBE firms qualified to participate in Department contracts. On May 10, 1983, the Department Minority Programs Coordinator reviewed the Capeletti filing and found it to be deficient. He then telephoned Capeletti's MBE liaison officer, R. S. Stoddard, and informed him of "possible noncompliance" because of the non-certification of the two firms listed on the Form. He also advised Stoddard that Capeletti would have to submit other "qualified" MBE or WBE firms or provide the Department with evidence of its good faith efforts to meet the contract goals. The next day, May 12, the president of Pro Contracting flew to Tallahassee with an application for certification. Why he waited until after the deadline to seek certification was not disclosed. In any event, by 5:30 p.m. that day, it had been given a "temporary" certification good for ninety days, or until August 12, 1983, subject to a follow-up on-site evaluation of the firm by the Department. The temporary certification was given despite the application being incomplete in several respects and there being an admonition on the form itself that "INCOMPLETE FORMS WILL BE RETURNED." The less than twenty-four hour turnaround time for reviewing the application was by far the quickest time such an application had ever been processed, and a firm issued an MBE certification. In the past, such certifications had taken weeks or months since the Department has up to ninety days to review such applications pursuant to its rules. However, the Coordinator explained that "time was a factor", and justified the expedited approval on this basis. The temporary certificate expired on August 12 without being renewed, but the Coordinator stated it would be changed to a permanent certification on August 22, 1983. There are no Department rules which provide for "temporary" certification. However, the evidence reveals that this type of certificate had been issued to other subcontractors in the past, including Community Asphalt, which was used by Badgett. Because the 1 percent WBE goal was not met, it was necessary that Capeletti satisfy the Department it had made good faith efforts to meet the unmet goals. A "Good Faith Efforts" form specifying the information required to meet this test was sent by the Department on April 28, 1983. The form contained nine questions pertaining to the contractor's effort to meet the contract goal and tracked the criteria enumerated in the Rule. Although the form itself was not returned, Capeletti responded by letter dated May 6 and stated that it had mailed a letter to 85 WBEs and 10 MBEs on April 12 1983 soliciting quotes, and mailed the same letter to various WBE and MBE associations in the State of Florida. It also submitted a list of MBE/WBE firms that had subcontracted on Capeletti jobs in recent years. The reply by Capeletti essentially satisfied four of the nine suggested criteria in Rule 14-78.03(1)(c)2.a.i.-ix. It did not respond to the other five factors. Notwithstanding the failure of Capeletti to fully respond to all of the requested information, the Department recommended that 72 percent of the 1 percent WBE goal be waived since Capeletti had made a good faith effort to meet that goal. In so doing, the Department relied solely upon Capeletti's letter of May 6 as a basis for that determination. This recommendation was concurred in by a representative of the Federal Highway Administration on May 16. This was necessary since federal funds were being used on the project. On May 17, 1983, the Department determined that Capeletti had complied with the Department MBE requirements. This determination was based on the utilization of Pro Contracting to meet the entire 5 percent MBE goal, and the Federal Highway Administration's waiver of 72 percent of the 1 percent WBE goal of the project. On May 20 the Department posted the bids and designated Capeletti as the lowest responsive bidder for the project. The Status of Community Asphalt Respondents have raised the issue of whether Community Asphalt was a certified MBE at the time the bids were submitted on April 27. That subcontractor was used by Badgett to meet the 5 percent MBE goal. Community Asphalt was incorporated on September 22, 1980. Fifty-one percent of the stock is held by two Hispanics while the remaining 49 percent is held by non-Hispanic shareholders, one of whom owns Badgett. The purpose of the business was to qualify as a minority business enterprise for paving work on construction projects. The corporation is structured so that the Hispanic shareholders have ultimate control of the business and can elect the majority of the board of directors. Although Capeletti contended that the 49 percent block of stock can control the corporation's operations, or prevent it from bidding on jobs, sufficient provisions are available in the by-laws, articles of incorporation and statutes to allow effective Hispanic control. Community Asphalt was first certified on a temporary basis by the Department as a minority business enterprise for a 3-month period beginning October 28, 1981. A renewal application for continued certification was filed with the Department around January 7, 1982. That application was never acted upon by the Department despite numerous written and oral inquiries by the applicant and its attorneys over an extended period of time. The lack of action was caused in part by a shortage of personnel in the Department MBE office. Community was orally advised in June, 1982 by a Department MBE representative that its application had been approved and it would be placed on the approved list of MBE subcontractors for participation in Department contracts. Community relied upon this representation and did not pursue the matter further. Thereafter, Community's name appeared in the Department MBE directory provided to contractors for Department projects, including the updated directory used for the April, 1983 letting of projects. Most recently, it was again included in the June, 1983 directory. Badgett relied upon these directories to comply with the MBE goals. Although the Department "routinely" advises MBE contractors in writing whenever their certifications have expired, the Department did not do so in Community's case at the end of its 90-day certification on January 28, 1982, or at any time thereafter. The Department attributed this to an oversight and shortage of personnel. In March, 1983 Badgett submitted a bid on the I-75 and SR 84 Department project in Broward County. On that particular job it had also received a bid quote from Community Asphalt. The Department awarded the contract to Badgett and authorized Community Asphalt to be used to meet the MBE contract goals. It is now performing the contract. Further, Community consistently submitted bids from January, 1982 until the Nova Drive project without any question being raised by the Department and participated in numerous Department jobs over that period of time. Department Practice on MBE Submissions and Waiver of Irregularities The Department views the MBE program as being an opportunity for minority and female owned companies to participate in the road and bridge construction program. According to its Coordinator, the policy in the past has been to "stretch" the rules if necessary to afford MBEs such an opportunity. The MBE Coordinator could not recall ever rejecting a contract for noncompliance by a bidder with the MBE good faith requirements. In situations where a contractor has not submitted its good faith efforts in conjunction with its bid, the Coordinator has allowed contractors to supply such information after the tenth calendar day and even up to twenty-five days thereafter where "continuous communication" occurs, and the contractor is attempting to fulfill the requirements. The Department internally created an awards committee some fourteen years ago which reviews all bids whenever irregularities, discrepancies or unbalancing of bid items occur on a particular job. In determining how to resolve such problems, the committee's primary concerns are to protect the integrity of the competitive bid system and do whatever is in the best interest of the State. The committee did not get involved in the Nova Drive Project, but the director of the division of construction, who sits on the committee, considered the tardiness of Capeletti in complying with the MBE requirements to be a "minor deficiency" and a "waiverable irregularity". He described "major" deficiencies as being a failure to submit a bid bond or not signing the bond, either of which would warrant rejecting an apparent low bidder. Section 3-1 of the Florida Department of Transportation Standard Specifications for Road and Bridge Construction (1982 edition) provides in part as follows: Until the actual award of the contract, however, the right will be reserved to reject any and all proposals and to waive technical errors as may be deemed best for the interest of the State. (Emphasis added) Effects of Cancelling the Contract As noted earlier Capeletti has been performing under the contract since the latter part of June, 1983. Should the contract be cancelled, Capeletti estimates its reimbursable costs from the State to range from $500,000 to $1,000,000. This amount represents expenditures already made for such things as earth-work, drainage structures and pilings and beams ordered or already made. This amount was not considered to be unrealistic by a Department representative. The contract specifications call for the contract to be completed in approximately 550 calendar days. If the work is done at an even pace, around 20 percent of the job will have been completed at the time this recommended order is issued. However, from a construction standpoint, performance of the contract can be terminated at any time and the construction completed by another contractor.
Recommendation Based on foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Transportation enter a final order immediately terminating the contract awarded to Capeletti Brothers, Inc. on the Nova Drive Project, and that the remaining portion of the work under that project be relet for bids. DONE and ENTERED this 10th day of October, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1983.
The Issue As set forth by the parties in the Prehearing Stipulation and in their proposed recommended orders, the issue in this case is whether the bid submitted by Pass International, Inc., on the Booker T. Washington Middle School Project No. A-0557 is responsive with respect to compliance with the Minority/Women Business Enterprise Assistance Levels subcontracting requirement contained in the Invitation to Bid.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, on the contents of the Pre-Hearing Stipulation, and on the entire record of this proceeding, the following findings of fact are made: At all times material to this proceeding, the School Board was a duly-constituted School Board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida, pursuant to Article IX of the Florida Constitution and to Section 230.03, Florida Statutes. Acestarz, Inc., was organized as a Florida for-profit corporation on September 2, 1997. Joseph Akoni, an African American male, owns 100 percent of the stock of Acestarz and acts as its president. In an agreement executed April 19, 1998, Joseph Robert Mijares, a Hispanic, agreed to act as Acestarz' qualifying agent and to apply for Acestarz's certification of authority as a general contractor. At the time, Mr. Mijares was an employee of Pass, and he acted as project manager on a number of Pass construction projects, both large and small. Mr. Mijares notified Pass of his agreement with Acestarz a few days after it was executed. Mr. Mijares held a state general contractor's certification. As qualifying agent, Mr. Mijares submitted the application for certification for Acestarz to the Florida Department of Business and Professional Regulation, Construction Industry Licensing Board, on April 23, 1998. A Temporary Authorization License was issued to Mr. Mijares on August 5, 1998, which authorized Acestarz to practice contracting through Mr. Mijares as its qualifying agent pending the processing and receipt of the permanent certification. By its terms, the temporary license was to expire on October 5, 1998. On or about June 1, 1998, Acestarz submitted a Certification Application to the School Board requesting certification as an African American M/WBE. In a letter dated June 1, 1998, Patricia Freeman, Director of the Division of Business Development and Assistance, notified Mr. Akoni that the application had been received. In the letter, Ms. Freeman stated: In the interim [while the application is pending], you may bid as a prime, or subcontractor, on future Dade County Public Schools contracting opportunities, set aside for, or requiring M/WBE participation. Should you be deemed the apparent low bidder or a subcontractor thereto, your application will be processed before contract award. Prime contractors who utilize subcontractors that are pending, but subsequently are deemed ineligible for certification, will be allowed to make a substitution, within the same racial or gender category as the firm being substituted. The School Board's BTW project is a competitive design- build project involving the conversion of Booker T. Washington Middle School into a high school. In order to submit a bid on the BTW project, prospective bidders were required to submit pre-qualification proposals for evaluation in August 1997. Pass and Danville-Findorff, among others, submitted pre-qualification proposals. After the School Board administrative staff evaluated the proposals, three firms, including Pass and Danville-Findorff, were pre-qualified to bid on the BTW project. On or about June 9, 1998, the School Board issued an Invitation to Bid on the BTW project. The bid specifications instructed the bidders to submit a lump-sum bid for all design and construction services required to complete the BTW project. The bid specifications further provided that the bids were to be submitted on or before July 28, 1998, and that, thereafter, the bids would be opened, read, and tabulated. According to the bid specifications, the "[a]ward of the contract will be made to the lowest responsible bidder for the actual amount bid." The time for submitting bids was extended to August 4, 1998. Included as part of the Invitation to Bid on the BTW project is a Special Provision for Compliance with M/WBE Subcontracting Assistance Levels Participation ("Special Provision"). The purpose of the Special Provision is to "ensure that Minority/Women Business Enterprises are afforded maximum opportunity to participate in School Board work." Section II.A., Special Provision. An M/WBE is defined in Section I.A.12. of the Special Provision as follows: Any legal entity which is organized to engage in commercial transactions and which is at least fifty-one (51) percent owned and controlled by minority persons. Minority person means a person who is a citizen or lawful permanent resident of the United States and who is: An African American, a person having origins in any of the Black racial groups of Africa; An Hispanic, a person of Spanish or Portuguese culture, including, but not limited to persons with origins in Mexico, South America [sic] Central America, or the Caribbean Islands, regardless of race; A Woman. Pursuant to the Special Provision, M/WBE assistance levels for one or more minorities are to be specified for all School Board projects. The assistance level for African American M/WBEs was established at eight percent of the total price bid on the BTW project. Section III.A. of the Special Provision provides in pertinent part: SUBMITTALS As a condition of responsiveness, all bid submittals shall contain the documents and information required below. . . . Sealed bids must contain a completed FORM FM 4828, BREAKDOWN OF PROJECT COST AND SUBCONTRACTORS/ CONSULTANT LIST, stipulating the name, and price for each Subcontractor, including the M/WBE category for those listed to meet the M/WBE subcontracting Assistance Level requirements. Letters of Intent (Attachment C-FM 4829) for listed M/WBEs used to meet the M/WBE subcontracting Assistance Levels must be presented by the apparent low bidder, to the Department of Contract Management, . . . within two (2) days (by no later than 2:00 p.m.) after the date, and time and location specified in the LEGAL ADVERTISEMENT AND THE INSTRUCTIONS COVERING OPENING OF BIDS. Letters of Intent prices must not be less than the amount listed on Form FM 4828, Breakdown of Project Cost and M/WBE Subcontractor/Consultant List. Letters of Intent for M/WBEs not listed on FM-4828, will not be considered in determining Compliance, unless the listed M/WBE becomes Unavailable. M/WBE Certification Applications (FM-3920) must accompany the Letters of Intent for all M/WBEs utilized to meet the Assistance Levels who are not certified nor pending certification as M/WBE's [sic] Dade County Public Schools at the time of bid submission. All bids, will be publicly opened, read, and tabulated in the School Board Auditorium, or other designated area, Dade County School Board Administration Building, by an authorized representative of the School Board. The submittal of the apparent low bidder being considered for award will be presented to the Division of Business Development and Assistance for an M/WBE subcontracting Compliance Review, in accordance with Section IV. of the SPECIAL PROVISION FOR COMPLIANCE WITH M/WBE SUBCONTRACTING ASSISTANCE LEVELS PARTICIPATION. If the apparent low Bidder is found to be nonresponsive or in Noncompliance, the Department of Contract Management shall notify the second low bidder . . . . Failure to submit the completed Form FM 4828 submittals at the bid opening may result in the bid being found nonresponsive. Both Pass and Danville-Findorff submitted sealed bids for the BTW project on August 4, 1998. The bid packages were opened on August 5, 1998. Pass had submitted the lowest lump-sum bid at $13,900,000, and Danville-Findorff had submitted the second lowest bid at $13,979,000. Pass submitted a Form FM 4828 with its bid in which it identified Acestarz and Manny & Lou as the M/WBEs that Pass intended to use to meet the eight-percent African American subcontracting assistance level. The listings on the Form FM 4828 submitted by Pass indicated that Acestarz would perform work in categories 9.01 through 9.06 for a price of $500,000 and that Manny & Lou would perform work in category 15.04 for a price of $700,000. Without Acestarz' $500,000 proposal, Pass's bid would not meet the eight-percent African American M/WBE assistance level. Section III.B.4. of the Special Provision provides as follows: The listing of a M/WBE Subcontractor [on Form FM 4828] by the Bidder shall constitute a representation by the Bidder that the listed Subcontractor is available and qualified, and a commitment by the Bidder that if it is awarded the contract, it will enter into a subcontract with the Subcontractor for the type of work, at a minimum of the price set forth in its submission. "Qualified" is defined in Section I.A.21. of the Special Provision as follows: A subcontractor is potentially Qualified to do specific work if at a minimum it meets all of the following criteria: It has or is able to obtain any and all bonds, insurance and licenses required to do such work and was duly informed by the Bidder that a bond, insurance or license was required and said Subcontractor included the cost associated with same in the bid quotation; It has the necessary experience, financial ability, organization, technical qualifications, skill and facilities to do such work; It is able to reasonably comply with the performance schedule needed for such work; It does not have an unsatisfactory record of integrity, judgment or performance; It is able to meet the applicable equal employment opportunity requirement if stipulated, and It is not otherwise ineligible to perform such work under applicable law and regulations. It is the general contractor's responsibility to determine whether a subcontractor is qualified to do the work or portion thereof. Nothing delineated herein shall be interpreted to waive the requirement that the subcontractor be legally licensed and certified at the time it is scheduled to perform such work. Prior to listing Acestarz on Form FM 4828, Henry Louden, who prepared Pass's bid package on the BTW project, did not ask Mr. Akoni about Acestarz' licensure status, the number of employees on its payroll, its financial capacity, or the type of equipment it had. Prior to submitting Pass's bid package, Mr. Louden mentioned to Mr. Akoni that he needed to look at bonding requirements because, when doing public work, subcontractors sometimes were required to provide bonds. Mr. Louden did not, however, inform Mr. Akoni of any licenses Acestarz might need to do the work proposed or of the insurance that Pass required its subcontractors to carry. The extent of Mr. Louden's knowledge about Acestarz prior to submitting Pass's bid package was described in the following two exchanges: Q. [By Mr. Flaxman] What did you know as it related to his [Joseph Akoni's] construction, his portion of construction, things of that nature prior to your [sic] submitting his name to the School Board? A. [By Mr. Louden] His experience? Q. Everything. Whatever you knew about him. A. About his whole firm, then? Q. Yes. A. Joe Akoni came to our office, inquired about bidding work with us, identified areas that he was familiar with, in construction areas that he is familiar with, and subsequent to that, I guess, he got together with Mr. Mijares in my office, and after that discussion, Mr. Mijares -- * * * THE WITNESS: Okay. Mr. Mijares got involved with Ace Starz [sic]. Ace Starz looked at a couple jobs in our office. Ace Starz submitted some bids to us on other jobs. Ace Starz was interested in submitting prices for the Booker T. Washington job. We provided plans to him. We reviewed the plans together, identifying the scope that we needed them to furnish to us, . . . . Q. . . . . Is there anything else you knew about Ace Starz, Inc. as it related to the construction of the project [prior to submitting Pass's bid package]? A. No.2 And, again, Q. (By Mr. Swimmer) Did you meet or did someone else on behalf of Pass meet with Mr. Akoni prior to Mr. Akoni giving a price on behalf of Ace Starz [sic] to go over the scope of work? A. [By Mr. Louden] Yes. Q. And did you discuss with him scope of work at that time? A. Yes. Q. And did you come away from that meeting with a sense of qualifications and ability of Ace Starz and Mr. Akoni [Objection by Mr. Flaxman.] MR. SWIMMER: Then, let me ask you -- I'll rephrase the question. BY MR. SWIMMER: Q. Did you reach a belief as a result of your interaction with Mr. Akoni regarding his capacity, his ability with regard to construction of the items for which he was pricing? A. Yes. Q. And what was that conclusion? A. His pricing and understanding of what we were requesting, from what I felt was necessary, in order to achieve -- to submit a price to me when we went through the plans, after he submitted the pricing, we reviewed it and it was consistent with what I was looking for, with other sub prices that we received. Q. Did you go through the plans with him, with Mr. -- A. Yes. Q: Did Mr. Akoni mark up the plans to describe the work which would be the scope of his price? A. I'm sure he did. I don't recall what he marked, whether he marked it. I identified specifically which areas he needed to price 3 On August 4, 1998, the date that bid packages on the BTW project were submitted to the School Board, Acestarz was not licensed by the state Construction Industry Licensing Board pursuant to Chapter 489, Florida Statutes, or by Miami-Dade County pursuant to Chapter 10 of the Code of Metropolitan Dade County, Florida. Once Pass was notified by the School Board that it had submitted the low bid, Pass timely submitted Letters of Intent from each of the three subcontractors it intended to use to meet the M/WBE assistance levels for the BTW project, as required by Section III.A.2. of the Special Provision. An application for certification for Acestarz was not submitted with Pass's bid package because Acestarz's certification application had been filed with the Division of Business Development and Assistance on June 1, 1998, and was still pending. Pass was determined to be the lowest responsive bidder and its bid package was forwarded to the Division of Business Development and Assistance for a compliance review to be conducted pursuant to the Special Provision.4 In Section I.A.4. of the Special Provision, "compliance" is defined as "[t]he condition existing when a successful bidder has met and implemented the requirements of this Provision." In Section I.A.6. of the Special Provision, "compliance review" is defined as "[a] review to determine whether the successful Bidder is in Compliance with these Provisions." "Successful Bidder" is defined in Section I.A.24. as "[t]he Bidder to which the contract is awarded." Even though the above-quoted sections of the Special Provision specify that a compliance review is done for the "successful" bidder after the contract for the project is awarded, the M/WBE compliance review is actually done before the contract is awarded in accordance with the procedures set out in Section IV. of the Special Provision. Section IV.A. provides in pertinent part: DETERMINATION OF COMPLIANCE Subsequent to bid opening and prior to award, the M/WBE Compliance Administrator will conduct a review of the bid submittals in order to determine Compliance with the Provision as follows: 1. Fulfillment of Established Assistance Levels If the total price for work to be performed by M/WBE Subcontractors as indicated in either the Breakdown of Project Cost and Subcontractors/Consultant List or Letters of Intent is sufficient to fulfill the established Assistance Levels, in each race/ethnic/gender category, the Compliance Administrator will issue a written Notice of Compliance to the Bidder. Pursuant to these provisions, the compliance review involves consideration of the cost breakdown for each M/WBE subcontractor listed by the lowest responsive bidder on the Form FM 4828; whether each subcontractor listed is a certified M/WBE, has an application for certification pending, or has filed a certification application with its Letter of Intent; and whether the price of the work to be done by each M/WBE subcontractor meets or exceeds the assistance levels specified in the bid documents. Ms. Freeman, in her capacity as Compliance Administrator, was responsible for conducting the compliance review of Pass's bid package. On August 14, 1998, before the compliance review had been completed but after Pass had been identified as the lowest responsive bidder, Danville-Findorff sent a notice of bid protest to Julio Alvarez in the School Board's contract administration section protesting the award of the contract for the BTW project to Pass. The August 14 notice of protest includes virtually the same factual allegations as those set out in the Petition which initiated these proceedings. Danville-Findorff supplemented the allegations contained in its August 14 notice of protest in letters dated August 19, 1998, and September 1, 1998, which included additional information regarding Joseph Mijares, the qualifying agent for Acestarz. On August 18, 1998, Pass sent to the School Board via facsimile an M/WBE Subcontractor/Consultant Letter of Intent executed by G. Family Ent., Inc., a certified M/WBE, in which that company agreed to perform the same scope of work that Acestarz had agreed to perform in its Letter of Intent submitted to the School Board on August 6, 1998.5 G. Family Ent., Inc., agreed to do the work for $500,000, the same price specified by Acestarz. Although the School Board never issued a formal response to Danville-Findorff's August 14 notice of protest, the issues raised were resolved when Ms. Freeman issued a Notice of Noncompliance dated August 26, 1998, in which she stated that, based on her analysis of Acestarz' status, Pass's bid did not meet the eight-percent assistance levels for African American M/WBEs established for the BTW project. Ms. Freeman's conclusion was based on a finding that Acestarz' $500,000 proposal could not be credited toward the African American assistance levels required for the BTW project because "ACESTARZ was neither qualified as a construction company on bid day, nor can it be certified as an M/WBE." Ms. Freeman refused to authorize Pass to substitute another M/WBE subcontractor for Acestarz because "it can only be assumed that Pass was fully aware of ACESTARZ' status." When it received the Notice of Noncompliance, Pass timely requested a meeting with Ms. Freeman, as permitted in Section IV.B.2. of the Special Provision. The meeting was held on August 28, and, on September 4, 1998, Ms. Freeman issued a Final Notice of Noncompliance in which she reiterated her conclusion that Pass's bid was not in compliance with the African American M/WBE assistance levels required for the BTW project. In the final notice, Ms. Freeman stated: ACESTARZ was not qualified to perform construction services of any nature at the time of bid. Not only did it not hold a State license but it was denied a County license without first obtaining the requisite local or state licenses. Therefore, it was not eligible or qualified to bid as a prime or a subcontractor. * * * In conclusion, Pass not only listed an unqualified firm, but one that was not legally organized to conduct business as a construction company. Therefore, Pass cannot be credited for including ACESTARZ to meet the M/WBE requirements, on this project. * * * To your request for immediate authorization to allow Pass to substitute [another M/WBE subcontractor for] ACESTARZ,"[6] please be advised that Pass . . . made" the same request on August 12, 1998, Please be advised that, other than certified M/WBEs, prime contractors are only credited for listing subcontractors, that meet all legal requirements, but fail to be certified for reasons determined by the Division, in accordance with M/WBE Certification requirements. ACESTARZ was not legally qualified to engage in the construction business at the time of bid opening, and withdrew its M/WBE Certification Application."[7] Therefore, a substitution for the firm cannot be allowed. Section IV.C.5. of the Special Provision provides that the Final Notice of Noncompliance "shall be final and conclusive. The Compliance Administrator shall recommend that the Compliance Review procedure be initiated with respect to the next lowest responsive Bidder, or all remaining bids may be rejected and the project readvertised." A compliance review was not initiated for Danville-Findorff because, on September 4, 1998, Pass delivered its Formal Written Protest to the School Board. Pass stated in the protest that "the stated basis for declaring Pass International, Inc. to be not in compliance with the M/WBE subcontracting requirements set forth in the notice of August 26, 1998, is clearly in error." Specifically, Pass challenged Ms. Freeman's conclusion that Acestarz was not qualified to do the work specified in the Form FM 4828 because it was not licensed at the time Pass submitted its bid. The issues raised in Pass's protest were resolved when Ms. Freeman sent Pass a letter dated September 29, 1998, entitled "RESCISSION OF NOTICES OF NONCOMPLIANCE" for the BTW project.8 Ms. Freeman rescinded the Final Notice of Noncompliance because, at the recommendation of the School Board's legal counsel, she reconsidered the definition of the term "qualified" contained in Section I.A.21. of the Special Provision and determined that, under this definition, Acestarz "is considered a qualified subcontractor for purposes of M/WBE Compliance." Specifically, Ms. Freeman concluded that, pursuant to Section I.A.21. of the Special Provision, it was not the responsibility of the Division of Business Development and Assistance to determine whether Acestarz was qualified to do the work included in Pass's bid submittal. Rather, according to Ms. Freeman, it was Pass's responsibility. In addition, Ms. Freeman concluded that, pursuant to Section I.A.21. of the Special Provision, an M/WBE does not need to be licensed or certified at the time the bid is submitted. Rather, it need be licensed to do the work and certified as an M/WBE Subcontractor in the appropriate category at the time it performs the work under the contract. During her re-evaluation of the notices of noncompliance, Ms. Freeman also decided that it was improper to conclude during the compliance review that Acestarz was not certifiable as an African American M/WBE. A compliance review to determine whether M/WBE assistance levels are met by a bidder is done pursuant to the criteria set out in the Special Provision; the decision to grant or deny an application for M/WBE certification is based on an evaluation of the application pursuant to the standards established in School Board Rule 6Gx13- 3G-1.05. As a result, Ms. Freeman advised Pass in the September 29 letter that, as "the next step in the process," the Division of Business Development and Assistance would complete its review of Acestarz' certification application.9 Some of the criteria for certification specified in School Board Rule 6Gx13-3G-1.05 are the same as or similar to the minimum criteria for an M/WBE subcontractor to be qualified pursuant to Section I.A.21. of the Special Provision. In a letter dated October 23, 1998, entitled "DENIAL OF MINORITY/WOMEN BUSINESS ENTERPRISE (M/WBE) CERTIFICATION," Ms. Freeman advised Joseph Akoni that the documents he submitted failed to show that he "has the capability, knowledge, training, education, and experience needed, to independently guide the future and destiny of Acestarz' construction activities." (Emphasis in original.) Ms. Freeman also observed that, as a matter of statutory law, Acestarz' Hispanic qualifying agent, Robert Joseph Mijares, "has the responsibility to supervise, direct, manage and control the contracting and construction activities of Acestarz." Ms. Freeman concluded: "In summary, Acestarz's construction activities appear, at best, to be managed and controlled jointly by an African American and a non-African American. Therefore, the firm failed to establish eligibility for certification as African American-owned and controlled business, as prescribed by School Board rules." A copy of this denial notice was sent to Pass. Acestarz appealed the decision to deny its application for certification as an African American M/WBE. Ms. Freeman's decision was affirmed by the Certification Appeals Committee, and, in a letter dated November 20, 1998, Ms. Freeman sent to Acestarz' attorney the "FINAL MINORITY/WOMEN BUSINESS ENTERPRISE (M/WBE) CERTIFICATION DENIAL NOTICE." Section III.D. of the Special Provision specifies that, if an M/WBE listed on Form FM 4828 is "determined not to be certifiable, [the M/WBE] must be substituted with another certified or certifiable M/WBE before award." Accordingly, on December 11, 1998, Pass proposed to use TCOE Corporation, a certified African American M/WBE, as a substitute for Acestarz, to do the same scope of work for $550,000. The request to substitute TCOE had not been granted or denied at the time of the final hearing. Summary With respect to the first and second factual issues raised in Danville-Findorff's formal bid protest, the evidence presented is sufficient to establish that Acestarz was neither licensed nor certified as an African American M/WBE at the time Pass submitted its bid on the BTW project. This is irrelevant, however, to a determination of whether Pass's bid is in compliance with the bid specifications because, pursuant to Section I.A.21. of the Special Provision, an M/WBE subcontractor need be licensed and certified only "at the time it is scheduled to perform" work under the contract. With respect to the third issue raised in its formal bid protest, Danville-Findorff presented evidence during the hearing regarding the licensing requirements for construction contractors found in Chapter 489, Florida Statutes, and in Chapter 10, Code of Metropolitan Dade County. Its apparent aim in presenting this evidence was to establish that, because Acestarz was not licensed by the state or the county, Acestarz could not submit a proposal to Pass for inclusion in its bid on the BTW project under the definition of "contracting" in the statute and in the code provision. In essence, Danville-Findorff is attempting to challenge the provision in Section I.A.21. of the Special Provision which requires that an M/WBE subcontractor be licensed at the time it is scheduled to perform work on the project. Danville-Findorff may not do so in this proceeding: The notice of protest challenging the specifications contained in an invitation to bid must be filed within seventy-two hours "after the receipt of . . . intended project plans and specifications in an invitation to bid or request for proposals, and the formal written protest shall be filed within 10 days after the date the notice of protest is filed." Section 120.57(3)(b), Florida Statutes (1997). Danville-Findorff protested only the School Board's intention to award the contract to Pass, and the protest was filed after the bids were opened. With respect to the fourth issue raised in Danville- Findorff's formal bid protest, the evidence is uncontroverted that Joseph Mijares, an employee of Pass until October 1998, acted as the qualifying agent for Acestarz, as that term is defined in Section 489.105(4), Florida Statutes. Danville- Findorff's purpose in presenting this evidence is apparently to establish that Mr. Mijares exerts complete control over Acestarz by operation of this statute. According to Danville-Findorff, this level of control by a Hispanic violates School Board Rule 6Gx13-3G-1.05.I. which requires that an African American M/WBE be fifty-one percent "owned and controlled, in form and in substance" by African Americans. The issue of control is, however, not relevant to a determination of whether a bidder is in compliance with the terms of the Special Provision. Rather, the issue of control is relevant only to a determination of whether an application for certification as an African American M/WBE should be granted or denied pursuant to School Board Rule 6Gx13-3G-1.05. With respect to the sixth issue raised in its formal bid protest, Danville-Findorff presented no credible evidence to establish that it was placed at a competitive disadvantage with regard to its bid on the BTW project because an employee of Pass acted as qualifying agent for Acestarz for purposes of Acestarz' application for licensure as a general contractor. With respect to the seventh issue raised in Danville- Findorff's formal bid protest, the evidence is uncontroverted that Acestarz did not submit an application for certification as an African American M/WBE with its Letter of Intent. This was unnecessary pursuant to Section III.A.3. of the Special Provision because Acestarz' application for certification was submitted on or about June 1, 1998, and was pending at the time Pass's bid was submitted. With respect to the fifth and eighth issues raised in its formal bid protest, Danville-Findorff presented sufficient evidence to establish with the requisite degree of certainty that, at the time the bid package was submitted, Pass did not satisfy the eight-percent assistance level for African American M/WBE participation on the BTW project: Pass did not satisfy the responsibility imposed on it in Section I.A.21. of the Special Provision to determine whether Acestarz was "qualified" or "potentially qualified” to do the work it had proposed to do on the BTW project. Mr. Louden, the Pass employee who prepared the Pass's bid package for the BTW project, did not possess adequate information regarding Acestarz or its president, Mr. Akoni, to determine whether Acestarz satisfied the criteria set out in Section I.A.21., which are the minimum criteria that must be met by a subcontractor to be "potentially Qualified to do specific work." In addition, Mr. Louden failed to make any meaningful inquiry into the qualifications of Acestarz. Because Pass lacked adequate information regarding Acestarz' qualifications and failed to make meaningful inquiry to ascertain Acestarz' qualifications at the time Pass submitted its bid package, Pass could not, in good faith, represent to the School Board that Acestarz was "qualified" or “potentially qualified” at the time the bid was submitted, which it did pursuant to Section III.B.A. of the Special Provisions when it listed Acestarz on the Form FM 4828.9 Because Pass did not conform to the requirements of Section I.A.21. and Section III.B.4. of the Special Provision when it listed Acestarz as a "qualified" or “potentially qualified” African American M/WBE subcontractor, it was not entitled to use Acestarz to meet the African American M/WBE assistance levels for the BTW project at the time it submitted its bid. Furthermore, under these circumstances, Pass cannot substitute another subcontractor for Acestarz because that option is available pursuant to Section III.D. of the Special Provision only upon the denial of the application for certification of an M/WBE which was not certified at time the bid was submitted. Because Pass's bid does not meet the assistance levels established for African American M/WBEs set out in the Special Provision for Compliance with M/WBE Subcontracting Assistance Levels Participation, Pass's bid was not in compliance with the Special Provision at the time it was submitted. Therefore, Pass's bid is not responsive to the bid specifications for the BTW project. The award the contract for the BTW project to Pass would be contrary to the bid specifications and would be arbitrary in light of the facts found herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board reject the bid of Pass International, Inc., as non-responsive to the bid specifications and that a compliance review be initiated with respect to the next lowest responsive and responsible bidder. DONE AND ENTERED this 14th day of April, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1999.
Findings Of Fact Stipulated facts The School Board issued a Request for Proposals (RFP No. 96-029S) March 24, 1995, to solicit bids for its group vision care. The RFP requires parties to file a notice of intent to protest the conditions of the RFP within 72 hours of receipt of the RFP. Optiplan did not file a protest of the conditions of the RFP. Optiplan and VSP, among others, submitted proposals which constituted offers. The Superintendent formed an Insurance Committee of fourteen individuals, consisting, among others, of School Board members, School Board employees, representatives of the three employee unions, and public representatives to review proposals submitted pursuant to the RFP. The Insurance Committee met a total of twelve times, beginning on February 17, 1995, and ending on July 25, 1995. Each meeting lasted between 3 and 10 hours. The Insurance Committee conducted its scoring on the various proposals using a score sheet prepared by Siver on the "Ready and Willing" category at the July 25, 1995, meeting. The scores were divided into three categories: Price [45 points], Ready and Willing [45 points], and Minority/Women Business Enterprise (M/WBE) [10 points] at the July 25, 1995, meeting. The Insurance Committee voted on July 25, 1995, and recommended that VSP be awarded the RFP. VSP was the highest ranked proposal on the evaluation. Optiplan filed a timely formal protest to the School Board's recommendation. Optiplan has standing in this bid protest proceeding to protest the award of the proposed contract. VSP as the successful proposer has standing in these proceedings as an Intervenor. VSP filed a timely Motion for Leave to Intervene and was granted intervention by the Hearing Officer. The Broward County VSP office is a marketing and/or sales office. VSP has only one employee in its Broward County Office. That one employee is a white male. The parties Respondent, the School Board of Broward County, Florida, operates the second largest school system in Florida; and the seventh largest system in the United States. It has approximately 21,000 eligible employees. Petitioner, Optiplan, is a managed vision care program which has been in operation for over eight years. Optiplan's proposal to provide a Group Vision Care plan for the School Board was the second highest ranked proposal. Intervenor, VSP is a not-for-profit Florida corporation which provides group vision service plans. VSP is the incumbent provider and has provided group vision care to the School Board since October 1987. The Insurance Consultant and The Superintendent's Insurance Committee Siver Insurance Management Consultants (the Insurance Consultant or Consultant) acted as independent risk and insurance management consultants for the RFP process, including the RFP development and proposal evaluation. The Superintendent of the School Board formed a committee (the Insurance Committee) to develop requests for proposals for multiple group insurance plans for School Board employees, to develop evaluation factors, to evaluate the proposals submitted, and to make recommendations to the School Board for the award of the insurance contracts. Optiplan had a team of paid lobbyists who met with Insurance Committee members outside of Committee meetings, provided information to Committee members, and represented Optiplan at Committee meetings. Committee Member Brown, President of the Federation of Public Employees, did not like or respect Jack Tobin, one of the Optiplan lobbyists. Mr. Brown did not score the proposals or vote on any of the vision issues. Mr. Brown's alternate, Jim Silvernale, was responsible for voting on the proposals. Mr. Brown's instructions to Mr. Silvernale were that in voting on the subject proposals, Mr. Silvernale should vote his own conscience based on the information presented to the Committee members. The Request for Proposals The Insurance Committee developed the RFP and the School Board issued Request for Proposal No. 96-029S (the RFP), March 24, 1995, to solicit proposals for provision of group vision care to School Board employees and their dependents. The RFP reserved the right of the School Board to reject any or all proposals with or without cause, and to accept the proposal which in its judgment would be in its best interest. The RFP gave the Insurance Committee and the School Board very broad discretion to consider and evaluate vendor proposals and to select the proposal which would best serve the School Board's needs. The RFP provided a description of the current vision group plan, and directed proposers to submit proposals which would meet or exceed current plan coverage, benefits, and plan provisions. Further, the RFP requested an "alternate" proposal which would increase the frequency (from the current plan's frequency of once every 24 months) of the "Frames Only" coverage to once every 12 months. In an addendum to the RFP, the School Board clarified that it was seeking both a proposal for a plan that would include "Frames only" coverage every 12 months and a proposal for a plan that would include "Frames Only" coverage every 24 months. The RFP stated that proposals would initially be evaluated in accordance with the criteria set forth in the RFP and advised that proposers should structure their proposals in a manner to properly address each of the evaluation criteria. The Proposal Forms section of the RFP required proposers to complete forms to provide information on the proposer's identification and address, group representative or account representative and address, administrative and claims payment facility, experience, proposed plan benefits, providers, M/WBE participation and certification, employee statistics, and willingness to provide the RFP's requested Model Program, as well as additional information. Proposal Forms were provided to solicit information which would be used in the application of the evaluation criteria to the proposal. However, proposers were admonished that the Proposal Forms may not address all, or may not fully address some, of the criteria. Proposers were solely responsible for addressing each of the evaluation criteria. At the April 18, 1995, meeting of the Insurance Committee, the Insurance Committee voted to make the minutes of its March 20, 1995, meeting an addendum to the RFP's to clarify for proposers the concern and intentions of the Insurance Committee relating to evaluating the M/WBE component. In this way, the Insurance Committee clarified and/or amended the RFP to clearly provide that remuneration was not the determinative factor for M/WBE participation evaluation. RFP Evaluation Criteria The "Evaluation Criteria and Selection Factors" section of the RFP states: The School Board reserves the right to select that proposal, if any, which in its judgment will be in its best interest. The Insurance Committee will rank all responsive proposals in accordance with listed evaluation criteria. The following factors will be considered in evaluating and ranking the responsive proposals: Projected cost and rate guarantee period - 0 to 45 points. Extent to which Proposer is willing and able to provide products and services as specified in the RFP - 0 to 45 points. For the purposes of evaluating criteria, the primary factors may be: Degree of relevant experience of the Proposer with respect to comparable clients located in Florida; and Degree to which Proposer matches the current plan provisions, coverages and services required; and Capability of network to provide proposed care and services. Extent to which minorities and women will participate in the providing of services - 0 to 10 points. For the purposes of evaluating this criteria, the primary factors may be: Degree to which minorities and women participate in the services to be performed; and Estimated amount of remuneration to qualified M/WBE. [Emphasis supplied.] The RFP, additionally contained a section entitled, "Minority/Women Business Enterprise Participation" which advised proposers that the School Board has a specific goal of at least 20 percent minority participation in the delivery of services for which the RFP addresses. M/WBE participation is part of the evaluation criteria. * * * Proposer shall also provide a detailed state- ment of its Affirmative Action and M/WBE Prog- rams, its commitment to these programs at both the corporate and local level, and a detailed statement concerning the staffing of the Proposer's Broward County office(s) that will be responsible for the administration of the contract. A greater amount of evaluation credit will be given to Proposers with a Broward County office(s) whose employee composition by ethnicity and gender reflects the Broward County population as defined by the 1990 census. Less evaluation credit will be given to Proposers with administrative office(s) located outside Broward County and/or whose office(s) do not have the employee composition by ethnicity and gender that reflects the Broward County population as defined by the 1990 census. . . . [Emphasis supplied.] Establishment by the Insurance Committee of Evaluation Factors and The Initial Evaluation and Ranking of the Proposals While the RFP established the evaluation criteria, the Insurance Committee established the factors which would be considered in determining whether and to what extent the evaluation criteria had been met. The factors for scoring the "Willing and Able" criterion were selected at the May 15, 1995, meeting. The Insurance Consultant suggested the factors, and the Committee accepted the factors with some revisions. Attachment Number 3 to the Insurance Committee meeting of May 15, 1995, included the following language: "Maximum Suggested Points means that points may be awarded up to the stated maximum for each criteria." This reflected the consensus of the Insurance Committee that in scoring each of the criteria each Committee member could award points anywhere within the range of points assigned to each of the criteria. The Insurance Committee initially scored and ranked the vision proposals on June 9, 1995. The proposals were analyzed by the Insurance Consultant prior to evaluation by the Committee. The Insurance Committee accepted the analysis and recommended scoring of the Insurance Consultant on the Cost and Willing and Able Criteria, and adopted the scoring as its own without individual scoring by Committee members. At the June 9, 1995, scoring of the proposals, the Insurance Consultants recommended that VSP receive the Insurance Committee's recommendation. The reasons for the recommendation included: lowest overall cost for current plan; lowest proposed family rate for current plan; employee satisfaction reported to be high; and there appeared to be no compelling reason to change. At the June 9, 1995, meeting, the M/WBE Office staff suggested factors to be considered in evaluating the M/WBE RFP component and presented her preliminary analysis of the proposals' submitted M/WBE data. The Committee reviewed the suggested factors, and requested modifications based upon what the Committee thought the factors should be. At the June 9, 1995, meeting of the Insurance Committee, Ms. Dudley handed out documents entitled, "Evaluation Criteria," "M/WBE Participation Analysis," and "Workforce Environment Analysis." The Insurance Committee members had a number of questions concerning the criteria used by Ms. Dudley. Ms. Dudley agreed to return to her office to expand her M/WBE participation analysis to include additional scope of services information. When Ms. Dudley returned, she presented her Workforce Environment evaluation which showed Optiplan and VSP with 4 points. Ms. Dudley was uncomfortable making a recommendation on the M/WBE Participation section. She felt there was a disparity in the nature of the M/WBE companies (one company had 2 employees; another company had 35 employees.) There was considerable discussion relating to the amount of remuneration and the related value of services. The Insurance Committee finally voted to give all proposers 4 points across the board. There is no reflection in the minutes of the Insurance Committee meetings that the Insurance Committee voted to accept Ms. Dudley's June 9, 1995, evaluation factors for determining whether the RFP's M/WBE criteria had been met. Rescoring of the Proposals After the initial scoring of the proposals by the Insurance Committee, Optiplan representatives and lobbyists met with the Superintendent to object to the evaluation and recommendation of VSP. After the meeting, Optiplan sent a letter dated June 16, 1995, to the Superintendent stating its objections. After Optiplan objected to the initial scoring, the Insurance Committee voted to re-score the proposals. At the July 25, 1995, meeting, the Insurance Committee re-scored the vision proposals. For the re-scoring, the Insurance Consultant reviewed the Optiplan objections and presented the Insurance Committee with a "Revised Comparison of Proposals - Willing and Able to provide Products and Services." The Insurance Committee conducted its scoring on the various proposals using a score sheet prepared by Siver (the Insurance Consultant) on the "Ready and Willing" category at the July 25, 1995, meeting. At the July 25, 1995, meeting, Ms. Dudley handed out a tally sheet as well as evaluation criteria for the M/WBE component. This was the only material handed out concerning the M/WBE evaluation that day. The materials were the same as those previously prepared for the health plan proposals. Ms. Dudley advised that the Workforce Environment analysis was the same as was provided in the earlier meeting. She had added the location of administrative offices. The third sheet was a summation of the M/WBE remuneration and the scope of work proposers had identified. The Insurance Committee voted to change the point allocation from 5 points for Workforce Environment and 5 points for M/WBE Participation to 3 points and 7 points respectively. Mr. Gentile asked whether there was clarification on which firm VSP had selected. Mr. Thomas advised that McKinley Financial Services had been selected. The Insurance Committee did not, either by vote or consensus, set a threshold amount of M/WBE remuneration for awarding points. The RFP did not dictate to the Insurance Committee that proposals with the greatest amount of remuneration of M/WBE firms receive the maximum points or greater points. The Insurance Committee did not determine that maximum remuneration, or meeting a threshold of in excess of $40,000, meant that a maximum of 7 points would be assigned. The Insurance Committee considered both the amount of remuneration and the scope of M/WBE work in providing services under the contract. The Insurance Committee scored on a range of points up to a maximum of 7 points for M/WBE Participation. Upon re-scoring of the RFP on July 25, 1995, VSP was again declared the winner of the contract with a score of 43.58 points for the Cost component of the RFP, 39.74 points for the RWA component, and 8.67 points for the M/WBE component, for a total score of 91.98 points. Optiplan was awarded the second highest score with a score of 45.00 points for the Cost component, 36.37 points for the RWA component, and 8.30 points for the M/WBE component, for a total score of 89.68 points. Of 100 possible points, VSP and Optiplan were separated by only 2.30 points. Analysis of the Optiplan Protest by the School Board The Insurance Consultant was asked to review and to respond to Optiplan's protest. The Insurance Consultant performed an analysis of the vision RFP evaluation in accordance with each of the points raised in Optiplan's protest. This analysis was provided to the School Board for its consideration of the Optiplan protest. In performing its analysis of the vision RFP evaluation, the Insurance Consultant changed some of the scoring in light of Optiplan's protest assertions, in order to give Optiplan the benefit of the doubt. The Insurance Consultant concluded and advised that the results did not change, and that VSP would still be ranked higher than Optiplan. The Insurance Consultant advised the School Board that there was no basis for rejecting the Insurance Committee's recommendation of VSP over Optiplan. VSP's Underwriting Loss and Financial Viability Since the inception of its contract with the School Board through the end of March 1995, VSP had experienced an overall underwriting loss of approximately $483,300 on the School Board contract. VSP acknowledged this in its proposal. $293,135.00 of the loss were monies held in reserve to service claims. VSP President Allen Garrett advised the School Board that VSP was willing to stay with the School Board, and even enhance benefits, even though it had lost money because VSP was a nationwide concern with 15 million insured, and a contract with the second largest fully accredited school board in the nation was desirable and good for VSP business. Prior to the School Board's decision to reject Optiplan's protest and to award the contract to VSP, it was advised by its Insurance Consultant that VSP's willingness to continue to provide the group vision care program at the prices proposed was "neither unusual nor unexpected." This advice was based upon the Insurance Consultant's belief that VSP, and other vendors, could hope and expect that, by having a large employee base and resulting network, they would be able to lever- age their ability to serve other clients on a profitable basis. VSP's proposal included a Balance Sheet which clearly demonstrates that VSP is a financially viable company with assets as of December 31, 1994, of $10,256,448, an increase from $7,752,255 in December 1993; Net Income of $2,393,136; and a Fund Balance and General Reserves of $8,369.020. Eye exam appointment waiting time The RFP required proposals to provide eye exam appointments within 3 weeks. Optiplan's proposal stated that the average waiting time for an eye exam appointment is two weeks. VSP's proposal stated that the average waiting time for eye exam appointments for VSP patients is 1-3 days. VSP's authorization process is described in its proposal. The Insurance Consultant's analysis used by the Insurance Committee for re-scoring the proposals noted, in abbreviated fashion, that members first telephoned for a benefit form to be sent by mail; then obtained appointments within 1-3 days after calling for an appointment. Insurance Committee members could score proposals on a range from zero to a maximum of 3 points for the average waiting period for an eye exam appointment. Optiplan did not propose two separate plans for the frequency of the "Frames Only" coverage as requested by the RFP, but instead proposed the alternate plan only. Employees would be able to obtain a "frame only" benefit every 12 months for $55.00. Optiplan stated this as a benefit enhancement. The Optiplan proposal also allowed employees to elect a specific brand of contact lenses, Prosite, in lieu of eye glass benefits, without additional co-payments. Optiplan stated this as a benefit enhancement. The Insurance Consultant's Revised Comparison notes the Optiplan "enhancements." VSP's proposals provided the following plan enhancements: Credit of $293,135.00 IBNR reserves already established as a result of the current contract. Improved frame availability by increasing the frame allowance 56 percent from the current frame allowance. Panel doctors will accept a 10 percent discount for total cost of covered elective contact lenses after applying the $85.00 flat allowance. Insurance Committee members could score proposals on a range from zero to a maximum of 5 points based upon their evaluation of how and to what extent proposals exceeded the current plan's benefits and exclusions. Membership satisfaction surveys VSP performs member satisfaction assessments by mailing satisfaction questionnaires to every 25th patient. The Insurance Consultant's Revised Comparison notes this method of assessment of VSP. The scoring factors for Criterion No. 11 were as follows: Frequency of employee satisfaction Maximum points assessments Point of service +2 Monthly/quarterly +1 Semi-annually/annually 0 No assessments -2 VSP's methodology for satisfaction assessments does not fit neatly into any of the scoring factors itemized above. Inasmuch as VSP does have an assessment methodology, it would appear to be inappropriate to score it as a -2 on this criterion. Viewed on a frequency basis, a satisfaction assessment survey of every 25th patient would, depending on the number of patients seen, result in an assessment frequency more frequent than annually and perhaps as frequent as daily. Accordingly, it would appear to be within the discretion of the Insurance Committee members, depending on how they interpreted VSP's satisfaction assessment methodology, to have scored VSP on this criterion anywhere within a range from +0.1 points to +2 points. Proposers' experience/references Although Optiplan could not state exactly, it estimated that in excess of 200 employers receive Optiplan benefits. Volusia County, a reference provided by Optiplan, rated Optiplan "5-6" (on a ten point scale). Optiplan did not have a contract with a comparable size government group. Optiplan's proposal provided references indicating that it provides vision services to several HMO's with memberships of as high as 60,000. VSP has satisfactorily provided group vision care services to the School Board since October 1987. VSP also has contracts with 442 employers in Florida, including contracts to provide group Vision care to at least five other school boards in Florida. VSP's references gave it high ratings of "8-9" and "10." Local offices Optiplan has offices in Broward County. VSP clearly indicated in its proposal that its corporate headquarters are in Tampa. It clearly indicated that it had a Broward County office where its Group Representative or Account Executive for the School Board contract was located. VSP's administration and claims payment facility is located at its Tampa location. All materials provided to the Insurance Committee to be used in scoring proposals accurately stated the locations of VSP's offices. M/WBE RFP Component Prior to the due date for submission of proposals, the Insurance Committee discussed the M/WBE component of the RFP's and evaluation factors several times. The Insurance Committee discussed the M/WBE component of the health and vision care RFP's at length during the March 20, 1995, Insurance Committee meeting, which took place during the development process of the RFP's and prior to the issuance of the Group Vision Care RFP. The Committee was concerned that if the points available for the M/WBE component were inflated, proposers conceivably would subcontract with minority firms for questionable services, thus increasing costs. The discussion included comments that the past practice was to require insurance carriers to bid directly without agents and to furnish salaried service representatives for open enrollment and continuing in- house service. There had been a recent newspaper expose dealing with agent commissions within the county government group. At the April 18, 1995, meeting, the Insurance Committee voted to make the minutes of its March 20, 1995, meeting an addendum to the RFP's to clarify for proposers the concern and intentions of the Insurance Committee relating to evaluating the M/WBE component. In this way, the Insurance Committee clarified and/or amended the RFP to clearly provide that amount of remuneration was not the determinative factor for the M/WBE participation evaluation. M/WBE Workforce Environment The RFP requested proposers to complete a chart to provide employment statistics on the proposer's workforce. This chart provided for the submission of data from "Corporate, Home Office, Regional Office, Local Office." The chart did not limit proposers to supplying information only on Broward County Offices. VSP provided employee statistics as required by the RFP. It clearly identified that the statistics were for its "Corporate," "Home Office," and for its "Local Office." The "Local Office" was identified as a sales office with two non-Hispanic white males. VSP's minority statistics revealed that it has at least 80 percent women/minority employees in its offices. While VSP's administrative office is located outside of Broward County, it's offices have a high percentage of women/minorities as employees. M/WBE Participation The RFP requested proposers to "identify the M/WBE firm or firms who will be working with you on this engagement." The RFP also required proposers to Indicate . . . the extent and nature of the M/WBE's work with specificity, as it relates to Service Requirements detailed in Section III, including the percentage of total engagement cost/fee/commission which will be received by the M/WBE firm in connection with the work to be performed on this engagement. In response to the RFP M/WBE information request, Optiplan identified More Financial Services, Inc., as its M/WBE firm, and attached a document outlining the extent and nature of work that More Financial would be performing under the contract. More Financial was to receive 3 percent of all employee premiums. The amount of estimated remuneration to Optiplan's M/WBE firm was calculated to be approximately $47,163 per year for the life of the contract. VSP identified a printing firm as one of its M/WBE firms with total amount of remuneration to be "$17,568 (3 yr. estimate) depending on volume printed per job." VSP also identified More Financial Services, Inc., or McKinley Financial Services, Inc., as another M/WBE firm. It clearly indicated that it would be More Financial Services, Inc., or McKinley Financial Services, Inc. Either one of these companies, if selected as the M/WBE contractor, would perform the same services for VSP and would receive the same amount of remuneration. The estimated remuneration was stated to be "$31,200 (3 yr. estimate) based on 3/4 of 1 percent of annualized premium." By letter of July 6, 1995, Allen Garrett notified Richard Thomas, The School Board Benefits Director, that VSP had selected McKinley Financial Services, Inc. as the VSP M/WBE participant. The letter was copied to Anthony Gentile, Chairman, Insurance Committee. The extent and nature of work to be performed by More Financial Services, Inc., for either Optiplan or VSP, as stated in the Optiplan and VSP proposals, was the same. Mr. Collymore, President of More Financial Services, Inc., prepared the work statements which were included in the proposals of each of the three firms he contacted. After the June 9, 1995 scoring of the proposals and before the July 25, 1995 re-scoring, Mr. Collymore wrote to the Insurance Committee Chairman, Anthony Gentile, to "urge the Members of the Insurance Committee to use the total M/WBE dollar remuneration as the measure when allocating points based on remuneration." Mr. Collymore explained to the Insurance Committee that the actual work to be performed might be more. He provided examples of why the remuneration might be more for the different proposals. Mr. Collymore wrote the letter because there was a discussion on June 9, 1995, by Shelia Dudley of the EEO Office that the scope of work was the same for all the proposals, but the remuneration was different. Copies of Mr. Collymore's July 10, 1995, letter were passed out to Insurance Committee members at the July 25, 1995, meeting. Optiplan's selection as the contractor would be the most advantageous selection for Mr. Collymore due to the larger amount of remuneration. The RFP does not specify that proposers must provide the type of services which Mr. Collymore testified he would provide for Optiplan. VSP had discussions with minority vendors concerning the provision of services contingent upon an award of the group vision contract. VSP had contacted vendors and had estimated the amount of remuneration. After VSP was initially recommended for the award of the contract, it executed a Commission Agreement with McKinley Financial Services, Inc. The remuneration under this agreement was the same amount as quoted in the VSP proposal. Some general observations The evidence in this case is sufficient to show that at least a few of the members of the Insurance Committee made a few scoring decisions on the basis of mistakes in their understanding of the facts. Those few scoring decisions made on the basis of mistaken understanding of the facts have not been described in detail in these Findings of Fact because the impact of those few scores on the average scores is de minimus. If all of the average scores were to be recalculated to take into account the few scores that were proved to be based on mistake, there would be no significant change in the ranking of the parties. There were some scores by some members of the Insurance Committee that, on the record in this case, appear to be what can best be described as unexplained aberrations. Because they are unexplained, the evidence is insufficient to establish that these apparent aberrations were based on arbitrary considerations. It is possible they were merely honest mistakes. It is possible there is some logical explanation for some or all of the apparent aberrations, which explanation is not part of the record in this case because the members who made those scores were not called as witnesses or, if called, were not asked about those scores. Unexplained aberrations are an insufficient basis upon which to conclude that a bidding process is arbitrary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order dismissing the Formal Written Protest filed by Optiplan, Inc. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of December 1995. MICHAEL M. PARRISH, 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 22nd day of December 1995 APPENDIX The following are the specific rulings on all proposed findings of facts submitted by all parties: Proposed findings submitted by Petitioner: Paragraphs 1 through 8: Accepted in whole or in substance. Paragraph 9: Rejected as consisting of subordinate and unnecessary details and as not fully consistent with the greater weight of the evidence. Paragraphs 10 and 11: Accepted in substance. Paragraph 12: Rejected as consisting of subordinate and unnecessary details. Paragraph 13: Rejected as consisting of subordinate and unnecessary details and of argument. Paragraphs 14 through 19: Accepted in whole or in substance. Paragraphs 20 and 21: Rejected as subordinate and unnecessary details, or as irrelevant, because the Insurance Committee did not use the sub- classifications in Petitioner's Exhibit 3 during their re-scoring on July 25, 1995. Paragraph 22: Rejected as subordinate and unnecessary details and as, in any event, not fully consistent with the greater weight of the evidence. Paragraph 23: Rejected as consisting primarily of argument. Paragraph 24: The first two sentences of this paragraph are rejected as consisting of subordinate and unnecessary details. The last sentence is rejected as irrelevant because it is inconsistent with the scope of services described in the Optiplan response to the RFP. Paragraph 25: Rejected as consisting primarily of argument; specifically, argument which is inconsistent with the greater weight of the evidence. Paragraphs 26 through 28: Rejected as subordinate and unnecessary details or as irrelevant, because the Insurance Committee did not use the Dudley sub- classifications proposed in Petitioner Exhibit 3 when it scored the proposals on July 25, 1995. Paragraph 29: Rejected as consisting of subordinate and unnecessary details and as argument. Paragraph 30: Rejected as consisting of subordinate and unnecessary details and as not fully supported by the greater weight of the evidence. Paragraph 31: Rejected as consisting of subordinate and unnecessary details and as argument. Paragraph 32: Accepted. Paragraph 33: Accepted up to the word "organizations." The remainder is rejected as a proposed conclusion of law, rather than a proposed finding of fact. Paragraphs 34 through 39: Accepted in whole or in substance, with some unnecessary editorial comments deleted. Paragraph 40: Accepted in substance that Optiplan and More Financial Services had some form of understanding about the terms on which the latter would provide services if Optiplan received the subject contract. The evidence is insufficient to show that an enforceable contract was entered into. Paragraph 41: Accepted. Paragraphs 42 and 43: Rejected as contrary to the greater weight of the evidence; the cover letter is part of the response. Paragraphs 44 through 46: Accepted. Paragraph 47: Rejected as consisting of subordinate and unnecessary details. Paragraph 48: The portion from the beginning to the second comma is rejected as subordinate and unnecessary details. The remainder is accepted. Paragraph 49: Rejected as consisting of subordinate and unnecessary details. Paragraph 50: Rejected as consisting of subordinate and unnecessary details and as argument. Paragraph 51: Rejected as consisting of subordinate and unnecessary details. Paragraph 52: Rejected as argument. Paragraph 53: First sentence accepted in substance. The remainder is rejected as irrelevant; the RFP did not require contracts with proposed M/WBE firms. Paragraphs 54 through 57: Rejected as consisting of subordinate and unnecessary details or as irrelevant. Paragraph 58: First sentence accepted. The remainder is rejected as consisting of subordinate and unnecessary details. Paragraphs 59 and 60: Rejected as consisting of subordinate and unnecessary details or as irrelevant. Paragraph 61: Accepted. Paragraphs 62 through 64: Rejected as consisting of subordinate and unnecessary details or as irrelevant. Paragraph 65: Rejected as comprised primarily of argument, rather than proposed findings of fact. Paragraphs 66 and 67: Accepted in whole or in substance. Paragraphs 68 through 72: Rejected as consisting of subordinate and unnecessary details or as irrelevant in view of the re-scoring. Paragraph 73: Rejected as consisting of subordinate and unnecessary details about status of the record. Paragraphs 74 through 76: Accepted in whole or in substance. Paragraphs 77 through 81: Rejected as consisting primarily of argument and as, to the extent it proposes facts, as contrary to the greater weight of the evidence. Paragraph 82: Rejected as contrary to the greater weight of the evidence. Paragraph 83: Rejected as consisting of subordinate and unnecessary details which do not support the inference for which they are offered. Paragraph 84: Rejected as contrary to the greater weight of the evidence. Paragraph 85: Rejected as consisting of subordinate and unnecessary details or as irrelevant. Paragraph 86: Rejected as consisting of subordinate and unnecessary details and as not fully supported by the evidence. Paragraph 87: Rejected as argument and, to the extent it proposes facts, as being contrary to the greater weight of the evidence. Paragraph 88: Rejected as consisting of subordinate and unnecessary details or as irrelevant. Paragraph 89: Rejected as consisting primarily of argument. Paragraph 90: Rejected as consisting of subordinate and unnecessary details. Paragraph 91: First sentence is accepted in substance. Second sentence is rejected as contrary to the greater weight of the evidence; there were no thresholds in effect at the July 25 re- scoring of the M/WBE criteria. Paragraph 92: Rejected as argument; specifically, argument based on incorrect facts. Paragraph 93: Rejected as in part irrelevant and in part not fully supported by the persuasive evidence. Paragraph 94: Rejected as irrelevant because the description of the proposed services to be performed by More Financial Service is the same in the proposals submitted by Optiplan and VSP. Paragraphs 95 and 96: Rejected as argument; specifically, argument not supported by the greater weight of the evidence. Paragraph 97: Accepted in substance. Paragraphs 98 and 99: Rejected as consisting primarily of argument. Paragraphs 100 and 101: Rejected as primarily argument and as not fully supported by the persuasive evidence. Paragraphs 102 and 103: Rejected as primarily argument and as consisting of subordinate and unnecessary details. Paragraph 104: Rejected as argument. Paragraph 105: Rejected as consisting of subordinate and unnecessary details and as argument; specifically, argument in support of a conclusion that is not warranted by the greater weight of the evidence. Paragraph 106: Rejected as argument; specifically, argument in support of a conclusion not fully supported by the greater weight of the evidence. Paragraphs 107 through 118: Rejected as irrelevant because the issue to which the proposed facts relate was not raised with specificity in the formal protest. (Several of these paragraphs are also rejected as being primarily argument.) Paragraphs 119 through 132: Rejected as consisting of subordinate and unnecessary details and as argument not fully warranted by the greater weight of the evidence. Also rejected as irrelevant because the issue to which the proposed facts relate was not raised with specificity in the formal protest. Paragraphs 133 and 134: Accepted in substance. Paragraphs 135 through 147: Rejected as consisting primarily of argument regarding issues that were not raised with specificity in the formal protest. Paragraphs 148 through 150: Accepted in substance. Paragraph 151: First sentence accepted in substance. Second sentence rejected because the Insurance Committee members had discretion to award more or less than one point depending on their interpretation of VSP's satisfaction assessment methodology. Paragraph 152: Rejected as consisting of subordinate and unnecessary details. Also rejected as not fully supported by the evidence. Paragraph 153: Rejected as argument; specifically, argumentnot warranted by the greater weight of the evidence. Paragraphs 154 through 158: These paragraphs are rejected as consisting of subordinate and unnecessary details and as irrelevant because they address issues not raised with specificity in the formal protest. Paragraphs 159 through 174: These paragraphs are rejected for several reasons. First, they are irrelevant because the issue of whether Committee member Brown was biased against Optiplan was not raised in the formal protest. Second, even if relevant, most of the facts proposed would be subordinate and unnecessary details because Mr. Brown did not participate in the July 25 re- scoring of the proposals and the evidence is insufficient to show that Mr. Silvernale's scoring was tainted by Mr. Brown's attitude towards Optiplan or its representatives. Paragraphs 175 through 179: Rejected as irrelevant because the proposed facts relate to an issue that was not raised in the formal protest. Paragraphs 180 through 184: Rejected as irrelevant because the proposed facts relate to an issue that was not raised in the formal protest. Also irrelevant because the facts proposed, even if accepted, would not warrant the inference for which they are offered. Paragraphs 185 through 188: Accepted in substance that the evaluation factors were adopted after the responses to the RFP were distributed to the Committee members. The conclusion that this was in and of itself improper is rejected. Paragraphs 189 through 200: Rejected as consisting primarily of argument about the weight of the evidence, rather than proposed findings of fact. Paragraphs 201 through 216: Rejected as constituting primarily argument about legal issues or proposed conclusions of law, rather than proposed findings of fact. Proposed findings submitted by Respondent: Paragraph 1 (including its subparts) through 43: Accepted in whole or in substance. Paragraphs 44 and 45: Reject as being comprised primarily of legal argument or proposed conclusions of law, rather than proposed findings of fact. Paragraph 46: Accepted. Proposed findings submitted by Intervenor: Paragraph 1 through 23: Accepted in whole or in substance. Paragraph 24: Rejected as subordinate and unnecessary details. Paragraph 25 through 50: Accepted in whole or in substance. Paragraph 51: First sentence accepted. Second sentence rejected as irrelevant. Paragraph 52 through 67: Accepted in whole or in substance. Paragraph 68: Rejected as subordinate and unnecessary details. Paragraph 69 through 85: Accepted in whole or in substance. Paragraph 86: Rejected as an over-simplification or as subordinate and unnecessary details. Paragraphs 87 through 103: Accepted in whole or in substance. COPIES FURNISHED: Edward J. Marko, Esquire Broward County School Board 1401 East Broward Boulevard, Number 201 Post Office Box 4369 Ft. Lauderdale, Florida 33338 Mitchell Berger, Esquire Holiday Russell, Esquire Berger & Davis 100 Northeast 3rd Avenue Suite 400 Ft. Lauderdale, Florida 33301 Leonard A. Carson, Esquire Rosa H. Carson, Esquire Carson & Adkins 2873 Remington Green Circle, Suite 101 Tallahassee, Florida 32308 Frank R. Petruzielo, Superintendent Broward County School Board 600 Southeast 3rd Avenue Fort Lauderdale, Florida 33301-3125
Findings Of Fact On May 29, 1985, The Columbus Company submitted a bid to construct a rest area along I-95 in accordance with the specifications for State Job No. 70225-3410. The bid documents required the bidders to have 10 percent subcontractors from DBEs or submit documentation with the bid to show good faith efforts to meet this 10 percent requirement were made if the 10 percent goal is not met. Respondent maintains a list of businesses qualifying as DBEs and periodically publishes a directory of those firms so qualifying. This latest directory published by DOT prior to the bid opening on the contract at issue here was April 15, 1985. Respondent's Bureau of Minority Affairs maintains a current register and will advise any bidder so requesting whether of not a firm qualifies as a DBE or WBE. The invitation to bid provides the contractor's bid submission shall include the following information: The names and addresses of certified DBE and WBE firms that will participate in the contract. Only DBEs and WBEs certified by the Department at the time the bid is submitted may be counted towards DBE and WBE goals. A description of the work each named DBE or WBE firm will perform. The dollar amount of participation by each named DBE and WBE firm. If the DBE or WBE goal is not met, sufficient information to demonstrate that the contractor made good faith efforts to meet the goals. Oscar Pope was Petitioner's estimator on this bid and prepared the bid which was submitted. Pope sent letters to various DBE firms soliciting their participation as subcontractors in the project and put ads in the newspaper. Prior to submitting the bid Pope realized that he did not have the required 10 percent DBE participation and he contacted another company to inquire where he could get additional minority participation from truckers and was referred to UPF Trucking. Pope contacted UPF Trucking and Billy Montgomery of UPF told Pope that UPF could qualify as a MBE. Pope did not check the directory or call DOT to verify UPF Trucking's status as a MBE. In his bid submitted, which included DBE/WBE utilization form No. 1, Pope listed UPF Trucking as being certified by Florida DOT as a MBE. Including the subcontract Petitioner entered into with UPF Trucking brought the MBE participation to the 10 percent goal required by the contract and no documentation was submitted to demonstrate Petitioner had made good faith efforts to reach the required DBE goals but could not do so. Upon the opening of the bids for this project, Petitioner was the low bidder. When the MBE participation listed in the bid was checked, UPF Trucking was found to be not qualified as a MBE firm. UPF Trucking was not listed in the April 15, 1985, directory of qualified minority businesses or on any approved list maintained by DOT. Had Pope called DOT before submitting Petitioner's bid, he could have learned UPF Trucking was not a qualified MBE. Petitioner's bid was forwarded to DOT's technical review committee and good faith efforts committee and both of these committees recommended the bid be found non-responsive because of the failure to meet the DBE goal. The bid was declared non-responsive and the contract was awarded to the next lowest bidder.
The Issue The issues in this case are whether Raysbrook Sod, Inc. (Respondent), is indebted to Florida Sod, Inc. (Petitioner), related to the sale and purchase of sod, and, if so, in what amount.
Findings Of Fact Petitioner is a corporation engaged in the business of harvesting sod. Petitioner is located in LaBelle, Florida. Respondent is a corporation located in Riverview, Florida, and is also engaged in the sod business. In September 2007, Respondent was interested in purchasing some sod in order to satisfy a customer's needs. Respondent's regional supervisor, Gabriel Monsivais, approached a gentleman by the name of Trampis Dowdle about purchasing sod. Monsivais had never met Dowdle and, in fact, knew him only as "Mr. Trampis." Dowdle represented that he could obtain sod from Petitioner, and a deal was struck. There was no written contract between Monsivais and Dowdle, nor--quite interestingly- -between Petitioner and Respondent. Nonetheless, Respondent had its drivers go to Petitioner's sod field and begin loading sod for Respondent's use. In all, approximately 1,700 pallets of sod were acquired from Petitioner's field by Respondent. Each time a load of pallets was taken, a Load Sheet was created to show the number of pallets, the location of the field, and the name of the person taking the sod. The driver of the truck was expected to sign the Load Sheet, indicating that the sod had indeed been received. There is no dispute between the parties about the number of pallets taken by Respondent's drivers.1 As sod was taken by Respondent, Petitioner would issue an invoice reflecting the amount of sod and the price to be paid. The invoices were sent to Respondent via U.S. Mail. The total amount billed for the sod was $42,559.16. Respondent issued a check (No. 8899) in the amount of $1,271.16, made payable to Petitioner on November 30, 2007, in payment of the first invoice from Petitioner. No further checks from Respondent were received by Petitioner, leaving a balance due of $41,288.00.2 Respondent, however, did attempt to make payments for the sod it purchased. Respondent wrote checks to Dowdle based on Dowdle's representations that he either owned Petitioner's company or was working for Petitioner. In fact, Dowdle neither owned nor was in any way affiliated with Petitioner. Dowdle was apparently defrauding Respondent (and possibly Petitioner as well). Respondent's representative, Joseph Bushong, and Petitioner's representative, Jake Alderman, had never met prior to the day of the final hearing in this matter. There was no written contract between the parties. The entire business relationship between the parties was done orally, based on conversations between Monsivais and Dowdle. Nonetheless, Respondent did obtain over $42,000.00 worth of sod from Petitioner. Respondent does not contest this fact. Respondent's actions indicate acknowledgement of the presumed relationship between the parties. Respondent submitted a credit application to Petitioner with references and credit information to be used by Petitioner in extending credit to Respondent for the sod it was purchasing. Respondent issued at least one check directly to Petitioner for payment of the sod in response to an invoice issued by Petitioner. The check was made payable to "Florida Sod" in the amount of $1,271.16. That check directly corresponds to the amount in Invoice No. 1697 from Petitioner dated October 8, 2007. Respondent did receive additional invoices from Petitioner for the sod Respondent had purchased and received. Clearly, there was an understanding between the two companies that a business relationship existed. After making its first payment to Petitioner, Respondent's subsequent payments for the sod were made directly to Dowdle and his companies. One such payment, made by way of a credit card, was actually applied to a restaurant with which Dowdle apparently had some business connection. Other payments were made via checks made payable to other Dowdle interests. Respondent made payments to Dowdle in the mistaken belief that Dowdle was the agent of or employed by Petitioner. In fact, Dowdle has never been affiliated with Petitioner. Petitioner did not receive any of the payments made by Respondent to Dowdle. Petitioner and Dowdle are not related or affiliated in any fashion (other than a prior arm's-length sod purchase between the two). It is clear that Dowdle received the payments intended for Petitioner in payment for the sod purchased by Respondent. Dowdle, whose whereabouts are unknown by the parties, did not provide Petitioner with the payments. Rather, from the evidence, it appears that Dowdle kept the payments, thereby committing a fraud on both Petitioner and Respondent. Though both parties are somewhat at fault in this matter for failure to utilize normal and acceptable business practices, one or the other party must necessarily bear the burden of payment. The evidence supports Petitioner in this regard because it best followed normal business procedures. Had Respondent made its remittance checks payable to Petitioner (who had issued the invoices), Dowdle would not have been able to abscond with the money. Had Respondent obtained some affirmative proof that Dowdle was an agent of Petitioner, Respondent would have known better than to provide money to Dowdle. Had Respondent contacted Petitioner directly instead of relying on third parties (its foreman and Dowdle), the deception would have been uncovered. However, the facts of this case support the proposition that Petitioner made a valid sale of sod to Respondent, and Respondent did not pay Petitioner for the sod.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services requiring Respondent to pay Petitioner the sum of $41,288.00 within 30 days of entry of a final order. DONE AND ENTERED this 31st day of October, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2008.
Findings Of Fact State Project Job No. 87000-3696 calls for the construction of the Sixth District Office Building in Miami, Florida, at the intersection of State Road 836 and State Road 821. On October 30, 1985, DOT accepted and opened five sealed bids on State Project No. 87000-3696. At the bid opening, Wilson's bid of $2,021,573.80 was the apparent low bid. Archer Western's bid of $2,055,491 was the next lowest bid. The amount of both of these bids were within the estimate of DOT. The apparent low bidders determined solely by the lowest dollar amount bid, was Wilson, whose bid was the apparent low bid by $33,917.20. Pursuant to Rule 14-78.03, Florida Administrative Code, DOT set Disadvantaged Business Enterprise (DBE) and WBE participation requirements in the bid documents for this project with a contract goal that 10% of the contract be performed by DOT certified DBEs and that 2% of the contract be performed by DOT certified WBEs. Subarticle 2-5.3.2; as amended of the bid documents provides: For all contracts for which DBE and/or WBE contract goals have been established each contractor shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE and WBE participation information shall be submitted with the Contractor's bid proposal. Award of the Contract shall be conditioned upon submission of the DBE and WBE participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. It also states that only DOT certified WBEs may be counted toward WBE goals. Subarticle 205.3.3, as amended, of the bid documents provides: In evaluating a Contractor's good faith efforts the Department will consider: Whether the Contractor at least seven days prior to the letting, provided written notice by certified mail return receipt requested or hand delivery with receipt, to all certified DBEs and WBEs which perform the type of work which the Contractor intends to subcontract, advising the DBEs and WBEs (a) of the specific work the Contractor intends to subcontract; (b) that their interest in the contract is being solicited; and (c) how to obtain information about and review and inspect the contract plans and specifications. Whether the Contractor selected economically feasible portions of the work to be performed by DBEs and WBEs including where appropriate, breaking down contracts or combining elements of work into economically feasible units. The ability of a contractor to perform the work with its own work force will not in itself excuse a contractor's failure to meet contract goals. Whether the Contractor provided interested DBEs or WBEs assistance in reviewing the contract plans and specifications. Whether the DBE or WBE goal was met by other bidders. Whether the Contractor submits all quotations received from DBEs or WBEs, and for those quotations not accepted, an explanation of why the DBE or WBE will not be used during the course of the contract. Receipt of a lower quotation from a non-DBE or non-WBE will not in itself excuse a contractor's failure to meet contract goals. Whether the Contractor assisted interested DBEs and WBEs in obtaining any required bonding, lines of credit, or insurance. Whether the Contractor elected to subcontract types of work that match the capabilities of solicited DBEs or WBEs. Whether the Contractor's efforts were merely pro forma and given all relevant circumstances, could not reasonably be expected to produce sufficient DBE and WBE participation to meet the goals. Whether the Contractor has on other contracts within the past six months utilized DBEs and WBEs. The above list is not intended to be exclusive or exhaustive and the Department will look not only at the different kinds of efforts that the Contractor has made but also the quality, quantity and intensity of these efforts. Wilson indicated on the D.B.E./W.B.E. Utilization Form No. 1, which form was part of the bidding documents, that it intended to use a WBE contractor to perform 2% of the contract amount and DBE contractors to perform 20% of the contract amount. Wilson did not indicate on the Form whether the DBEs and WBE were DOT certified. In actuality, only 1.6% of the contract amount was to be performed by the WBE. Additionally, the WBE contractor and two of the DBE contractors were not certified by DOT and therefore did not count toward the contract goals. Fifteen percent of the contract amount was to be performed by DOT certified DBEs and 0% was to be performed by WBEs in the bid proposal of Wilson. The D.B.E./W.B.E. Utilization Form No. 1 directs the bidder that "If full compliance with the contract goals for this project are not met; submit sufficient documentation with the bid proposal to demonstrate that good faith efforts were made to meet the goals. This form also instructs the bidder that failure to submit sufficient documentation to demonstrate good faith efforts will be just cause to consider the bid nonresponsive and to reject the bid. The good faith efforts evaluation of a bid proposal is undertaken by DOT when a potential contractor has not met the WBE of DBE goals for a particular project. Failure to submit sufficient documentation of good faith efforts when a DBE/WBE goal is not met is just cause for DOT to consider a bid to be non-responsive. Wilson knew that if it did not follow the bid specifications that its bid would be deemed by DOT to be non-responsive. Wilson submitted a good faith efforts package with its bid to establish its attempt to meet the DBE and WBE goals. This package contained a letter dated October 28, 1985, in which Herbert Jaffess Wilson's Chief Estimator explained Wilson's efforts to obtain bids from DBE and WBE subcontractors. These efforts were to: 1) advertise in the Miami Herald for three days regarding a desire for these bids; 2) telephone DBEs and WBEs to request bids and to advise them that Wilson would help them; 3) mail letters to 32 DBEs regarding bids; and 4) list its name in the Dodge reports on a number of days as one of the interested bidders on this project. Mr. Jaffess further stated that it is the policy of Wilson "to employ the lowest bidder on a project; provided they are sufficiently experienced and are financially responsible, regardless of any other consideration." DOT personnel evaluated Wilson's bid and good faith efforts documentation in accordance with the bid documents. That evaluation found that the subcontractor listed in Wilson's bid as a WBE would only perform 1.6 percent of the work and that it was not DOT certified. Additionally; Wilson's good faith efforts documentation was insufficient to establish Wilson's good faith efforts for the following reasons: 1) only three of the DBEs and A WBEs to whom letters were mailed were DOT certified; 2) Wilson did not indicate when the letters were mailed; 3) Wilson did not solicit all DOT certified WBEs in the areas of work available for this project; 4) two of the five bidders met the DBE and WBE goals on this project; and 5) Wilson's failure to submit information concerning the other inquiries delineated in the bid documents in this regard. DOT also found that Wilson did not have a history revealing that it had on other contracts within the past six months utilized DBEs and WBEs. Consequently, Wilson's bid was deemed nonresponsive and was rejected. Wilson's bid submission did identify all DBE and WBE firms, whether or not certified by the DOT; that were to participate in the contract; did describe work each named DBE and WBE would perform with request to the contract; and did specify the dollar amount of participation by each named DBE and WBE firm participating in the contract. However the bid did not achieve the WBE goals even if the non-DOT certified WBE was included. Wilson's good faith efforts submission included a letter from Herb Jaffess dated October 28, 1985, to the DOT detailing Wilson's efforts to obtain DBE and WBE subcontractors, including the placement of ads in The Miami Herald, calling or writing to 40 DBE or WBE firms (few of which were DOT certified), seeking their participation in the contract; and notice of the contract bidding in the Dodge Reports. The Dodge Reports is an industry report which includes a daily listing of contracts out for bid that allows subcontractors to know what projects are being bid and which contractor is preparing a proposal for any particular project. Wilson's good faith submission indicated that it wrote letters to DBEs and WBEs soliciting their participation as subcontractors on the bid for the construction of the Sixth District Office Building, however, Wilson did not send the letters certified mail, return receipt requested, and did not submit receipts to show the letters were mailed. Wilson's good faith submission indicated that the solicited DBEs and WBEs were informed how to obtain information about and how to review and inspect the contract plans and documents. However potential DBE and WBE bidders were merely told that the plans and documents were available for inspection at Wilson's office. Wilson's bid submission indicated that it selected economically feasible portions of the work to be performed by the DBE and WBE firms, however, Wilson did not submit all quotations received from DBEs and WBEs and for those quotations not accepted, did not submit an explanation of why the DBE or WBE was not used. Wilson did not meet the goal for the project, but two contractors did. Archer Westerns the second low bidders met the goals with 10.6% participation for DBEs and 4.2% participation for WBEs. Wilson's bid submissions including the good faith submission did not comport with the requirements of the bid specifications. Therefore DOT could not deem Wilson's bid to be responsive. DOT notified Wilson by letter dated November 18, 1985, that Wilson's bid had been declared nonresponsive due to its failure to meet WBE requirements. On December 9, 1985, DOT, posted in Tallahassee an intent to award the contract for this project to Archer Western. No federal funds are involved in this project. On December 31, 1985, the Final Order in Capeletti Brothers, Inc. v. DOT, DOAH Case No. 85-3340R, was rendered, declaring Rule 14-78, Florida Administrative Code, invalid as to projects in which no federal funds would be expanded. On January 15, 1986, DOT filed timely Notice of Appeal from this Final Order.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Lawn it is RECOMMENDED that a Final Order be entered rejecting the bid submitted by Robert F. Wilson Inc., as being nonresponsive and awarding the contract on State Project No. 87000-3696 to Archer Western Contractors, Ltd. DONE and ENTERED this 19 day of February 1986, in Tallahassee. Florida. DIANE K. KIESLING 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 19th day of February 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 65-4352BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Fact of Petitioner Adopted in substance in Finding of Fact 1. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Adopted in substance in Finding of Fact 1. Rejected as not supported by the competent substantial evidence. Adopted in substance in Finding of Fact 11. Adopted in substance in Finding of Fact 11. Adopted in substance in Finding of Fact 11. Rejected as not supported by the competent substantial evidence. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 14. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 16 Rejected as not supported by the competent substantial evidence. Rejected as not supported by the competent substantial evidence. Rejected as not supported by the competent substantial evidence. Adopted in substance in Findings of Fact 5 and 17. Adopted in substance in Finding of Fact 2. Ruling on Proposed Findings of Fact of Respondent 1. Adopted in substance in Finding of Fact 1. 2. Adopted in substance in Finding of Fact 1. 3. Adopted in substance in Finding of Fact 7. 4. Adopted in substance in Finding of Fact 2. 5. Adopted in substance in Finding of Fact 5. 6. Adopted in substance in Finding of Fact 8. 7. Adopted in substance in Finding of Fact 4. Adopted in substance in Findings of Fact 14, 16, 17 and 18. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 19. Adopted in substance in Finding of Fact 20. Rulings on Proposed Findings of Fact of Intervenor 1. Adopted in substance in Finding of Fact 1. 2. Adopted in substance in Finding of Fact 2. 3. Adopted in substance in Finding of Fact 3. 4. Adopted in substance in Finding of Fact 4. 5. Adopted in substance in Finding of Fact 5. 6. Adopted in substance in Finding of Fact 17. 7. Adopted in substance in Finding of Fact 6. 8. Adopted in substance in Finding of Fact 9. 9. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 19. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 22. COPIES FURNISHED: Mark Herron Esquire Suite 415, First Florida Bank 215 S. Monroe Street Tallahassee, Florida 32301 Brant Hargrove, Esquire Larry D. Scott, Esquire Department of Transportation Burns Building 605 Suwannee Street Tallahassee, Florida 32301-8064 John C. 0'Rourke, Esquire 0'Brien 0'Rourke, Hogan and McNulty One North LaSalle Street Chicago, Illinois 60602 Paul A. Pappas, Secretary Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether the Respondent, Miami-Dade Community College, has adopted a statement of agency policy in violation of Florida law.
Findings Of Fact Prior to August 2, 2002, the Respondent employed the Petitioner, Lonny Ohlfest. At the time of his termination, the Petitioner filed a request for a due process hearing with the Respondent to challenge his termination from employment. The Petitioner challenged the basis for his termination as he wanted to clear his name regarding some unflattering allegations but, equally important, he wanted to keep his job with MDC. The Respondent denied the Petitioner's request for an administrative hearing and found that the Petitioner was not entitled to a hearing. More specifically, the Respondent concluded that since the Petitioner did not have a contract of employment he was not entitled to an administrative hearing. The Petitioner disputed the Respondent's claim and argued that he did have a contract, that he had a reasonable expectation that his employment would continue, and that the Respondent unlawfully refused to afford him regress through the administrative process. When the Petitioner's appeal of his request for an administrative hearing failed, he filed the instant case to challenge the Respondent's policy of not referring administrative cases for formal hearing. The delays in the appeal process explain and support the Petitioner's delay in filing the instant challenge to the agency's alleged rule. To understand the historical perspective of this case, the following findings are made pertinent to the Petitioner's employment with the Respondent: The Petitioner began employment with the MDC on or about April 4, 2001. He was hired as a part-time, hourly worker within the school of allied health technologies. The position he assumed was funded and operated within the "Health Careers Opportunities Program" or HCOP. The HCOP was funded by a federal grant. The monies coming from the grant were renewable each year and ran concurrent with the school's fiscal year (July 1-June 30). All employees paid through the HCOP grant were considered "temporary" as the grant monies were necessary to assure continued employment. In January 2002 the Petitioner was given a full-time position within the HCOP. He was designated "Program Leader/Student Services" for the upcoming summer bridge program. At all times material to this case, all parties knew that absent federal funding the HCOP would not continue to operate. Moreover, the Petitioner knew, or should have known, that his employment with the Respondent would run only until June 30, 2002. Thereafter, it was expected that if and when the federal funding came through, the HCOP employees (including the Petitioner) would continue to work within the scope of the program. At the end of the summer program in 2001, the HCOP employees took leave until the school year started and the funding of the program was assured. Accordingly, after the summer bridge program was completed, the Petitioner expected to be on leave during the summer of 2002 until called back to work. Instead, the Respondent terminated the Petitioner from employment. The 2002 summer bridge program had not finished well for the Petitioner. Amid allegations of sexual harassment (unsubstantiated and not at issue in this proceeding) the Petitioner's working relationship within the HCOP floundered. The Petitioner was aghast that unsubstantiated claims had been reported, he wanted the accusations resolved, he wanted his name cleared, and he was disappointed by the process that failed to timely and fully resolve the issues. When the Petitioner left the campus for what he believed would be the break (similar to the one they had taken the prior year), he was uncertain as to his employment status. In fact, when he left the campus he cleaned out his desk and returned his keys. Nevertheless, on July 26, 2002, Dr. Miller directed the Petitioner to present for work on July 29, 2002. He did not do so. On July 29, 2002, the Petitioner's immediate supervisor directed him to appear for work on July 30, 2002. He did not do so. In fact, the Petitioner did not return to the office until July 31, 2002. The Petitioner did not understand that his attendance was mandatory for the two days that he did not appear for work. When the Petitioner did check in with the HCOP office on the 31st he came to understand the gravity of the situation. As a result of the absences, the Respondent cited the Petitioner with insubordination and terminated his employment with MDC. The Petitioner timely challenged the termination but the Respondent ruled he was not entitled to an administrative review of the decision. The Petitioner filed for, and received, unemployment compensation. The termination was not justified by the standards applicable to that forum. The rules governing unemployment compensation do not, however, govern the administrative process regarding whether or not one's employment constitutes a property interest that is protected by law. Upon receipt of the Petitioner's petition seeking an administrative review, the Respondent declined to afford the Petitioner with a hearing. The Respondent does not forward petitions filed by non- contract employees when such individuals seek to challenge their termination of employment. The Respondent maintains that, as a matter of law, they are not required to forward such petitions for formal review. The Respondent does not have a written rule or policy stating that non-contract employees are not entitled to administrative review when their employment is terminated. Conversely, the Respondent does not have a written rule or policy stating that non-contract employees are entitled to an administrative review when their employment is terminated. The Petitioner was not a full-time, contract employee of the Respondent. The Respondent's policy affords full-time contractual personnel a right to an administrative hearing pursuant to Chapter 120, Florida Statutes.
Findings Of Fact After the Department of Transportation (DOT) proposed to reject its bid on State Project, Job No. 97860- 3319 as unresponsive, for failure to meet a women's business enterprise (WBE) goal, and failure to document good faith efforts to reach the goal, Capeletti initiated substantial interest proceedings, Capeletti Brothers, Inc. and State Paving Corporation vs. Department of Transportation and John Mahoney Construction Company, Inc., No. 85-3003, contending that it had made good faith efforts to meet the goal and that it had adequately documented the efforts; that the second low bidder had not met the goals; that DOT treated the goals as quotas; and that the DOT committees who evaluated the bids met in violation of the Sunshine Law. At the hearing in the present case, the parties stipulated that Capeletti's "bid was rejected because of noncompliance with Rule 14-78.03 as it relates to women's business enterprises and for noncompliance with the bid specifications which incorporated those provisions. The rule provisions under challenge read, in pertinent part: 14-78.03 General Responsibilities. In furtherance of the purpose of this rule chapter, the Department shall establish overall DBE and WBE goals for its entire DBE one WBE program. In setting the overall goals the Department shall consider the following factors: the number and types of contracts to be awarded by the Department; the number, capacity, and capabilities of certified DBEs and VBEs likely to be available to compete for contracts let by the Department; and the past experience of the Department in meeting its goals and the results and reasons therefore. To implement its DBE and WBE goal program the Department may: . . . (b) establish contract goals on each contract with subcontracting opportunities for certified DBEs and WBEs The Department shall establish separate contract goals for firms owned and controlled by socially and economically disadvantaged individuals and for firms owned and controlled by women. In setting contract goals, the Department shall consider the following factors: the type of work required by the contract to be let; the subcontracting opportunities in the contract to be let; the estimated total dollar amount of the contract to be let; and the number, capacity and capabilities of certified DBEs and WBEs. For contracts with an estimated total dollar amount of $1,000,000 or less, the contract goals shall not exceed 50 percent of the identified potential for DBE and WBE participation. For contracts with an estimated total dollar amount of $1,000,000, the contract goals shall not exceed 75 percent of the identified potential for DBE and WBE participation. For all contracts for which DBE and WBE contract goals have been established, each bidder shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE and WBE participation information shall be submitted with the contractor's bid proposal. Award of the contract shall be conditioned upon submission of the DBE and WBE participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. Failure to satisfy these requirements shall result in a contractor's bid being deemed nonresponsive and the bid being rejected. DOT proposes to deem Capeletti's bid nonresponsive forits conceded failure to meet a WBE goal and for the alleged failure to document good faith efforts to meet the goal. Citation Deleted In the course of the adoption of amended Rule 14- 78.03, Florida Administrative Code, Bjarne B. Andersen, Jr., an attorney on the staff of the Joint Administrative Procedures Committee, wrote Ms. Margaret-Ray Kemper, DOT's Deputy General Counsel, on January 22, 1985, with reference to amended Rule 14-78.03, stating: Sections 339.05 and 339.081, F.S., contain no specific rulemaking authority . . . while we do agree that the rule appears in part to implement s.339.05, F.S., as amended by Ch. 84-309, L.O.F.; we do not believe this "assent to Federal aid" is specific rule authority. It is at best implied authority. The day before a DOT employee (who, counsel represented at hearing, is not a lawyer) had written Ms. Elizabeth Cloud, Bureau Chief, Bureau of Administrative Code and Laws, Department of State, as follows: Based upon a telephone conversation with Mr. Bjarne B. Andersen, Jr. of the Legislative Joint Administrative Procedures Committee and further legal review by our office, we request that the . . . "law implemented" be amended to . . . [delete reference to Section 339.05, Florida Statutes (1984 Supp.)] In an internal memorandum dated March 8, 1985, DOT's Deputy General Counsel set out DOT's legal position in these words: Subpart A of 49 CFR, Part 23, defines minority persons . . . The definition of minority does not include women. However, women are encompassed within the definition of minority business enterprise which is defined as a small business concern owned and controlled by one or more minorities or women. 49 CFR, 23.5. 49 CFR, Part 23, Subpart C, sets forth general requirements for all recipients of federal funds. Among those requirements is a policy statement to be included in every financial assistance agreement affirming a commitment to MBE/DBE participation in contracts financed in whole or in part with federal funds. Also required is a MBE/DBE affirmative action program which must be incorporated by reference into financial assistance agreements. The program is made "a legal obligation and failure to carry out its terms shall be treated as a violation of this financial assistance agreement." 49 CFR, S23.43(b). The goal program is one of the required WBE/DBE program components. 49 CFR, S23.45(g). . . . However, although women are included within the definition of MBEs, 49 CFR, Part 23, Subpart C, requires recipients to establish separate overall and contract goals for firms owned and controlled by minorities and firms owned and controlled by women. 49 CFR, 23.45(g)(4). The memorandum relies exclusively on 49 CFR, Part 23, Subpart C, 23.45(g)(4) as authority for Florida's WBE program, citing no federal or state statutes as authority.
The Issue The issue in this cause is whether Respondent engaged in unlawful employment practices of discrimination against Petitioner, for the reason of her being a female, by denying her management training during her employment tenure and by subsequently terminating her employment, in violation of Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes (2003).1
Findings Of Fact Based upon observation of the demeanor and candor of each witness while testifying; documentary materials received in evidence; evidentiary rulings made pursuant to Section 120.57, Florida Statutes; and stipulations of the parties, the following relevant and material facts, arrived at impartially based solely upon testimony and information presented at the final hearing, are objectively determined: Petitioner, Kelly McKean, is a Caucasian female and, at all times pertinent to this proceeding, was an employee at one of Respondent's, Econo Auto Painting, Inc., business locations, located at 1822 West Memorial Boulevard, Lakeland, Florida, from February 12, 2001, until she was terminated on June 23, 2003. Petitioner had approximately six years of non-continuous employment at several of Respondent's business locations before beginning her employment at the above Lakeland business site. Petitioner was employed by Respondent as a "taper," the person who is responsible for taping cars after body repairs and before painting. The taping of cars consisted of aligning strips of tape to specific areas of each automobile to prevent the taped area from being painted by the painter. Petitioner was an "aggrieved person" as defined by Section 760.10, Florida Statutes. The evidence of record establishes the fact that during all times pertinent, Respondent's Lakeland location employed nine employees comprised of: two females and seven males (five Caucasians/three Hispanics/one African American). Of the nine employees, one Caucasian female and one African American male were in managerial positions. Both were employed through contractual services of Selective HR Services (SHRS), an independent contractor and co-employer of Petitioner. Respondent is an automobile body shop business specializing in automobile body repairs and painting the exterior of cars and, at all times pertinent to this proceeding, was an "employer" as defined by Subsection 760.02(7), Florida Statutes. During all times pertinent to this proceeding, SHRS was responsible for providing human resources management services for Respondent's employees.4 At all time pertinent to this proceeding, Respondent hired the shop managers for its several auto body repair shops through SHRS. At no time pertinent to this proceeding did Respondent promote employees to management positions from within. At no time pertinent to this proceeding did Respondent permit, offer, or have in place a management training program for the training and promotions of employees from within the ranks of its shop employees to management positions within the company. At all times pertinent to this proceeding, and, on Monday, June 23, 2003, Marquez Green was the shop manager and Ron Link was the assistant manager of Respondent's Lakeland branch body shop during Petitioner's last term of employment at that location. Basis for Petitioner's Termination Several weeks preceding her termination, on June 23, 2003, the assistant shop manager, Mr. Link, noticed and personally discussed with Petitioner her repeated improper taping of some cars in the assembly line processes. Mr. Link spoke with Petitioner about this problem particularly stressing the fact that each car not properly taped required repainting which resulted in a slowdown of the repair, sanding, taping, and repainting process. It was made clear to Petitioner that repainting due to improper taping was causing the shop to lose profit. During the days following notice of the problem regarding incorrectly taped cars, Petitioner failed and/or refused to improve her work habits. The lack of improvement by Petitioner of her work habit of taping cars apparently became of some concern with management, in view of Petitioner's experience and over seven years of service as a taper with Respondent's business. Added to this disturbing trend, some time later, both the shop manager and assistant manager observed Petitioner in the manager's office reading business documents. Management confronted Petitioner with this violation of its policy that "none management" personnel were not allowed to read/review business documents. Petitioner gave an excuse for her conduct stating that the prior manager permitted her to review office documents when she was caught up with her work. Other than her statement, Petitioner failed to provide the identity or the testimony of the prior manager who allegedly granted her permission to review office documents when she had completed her work assignments before the end of the day. Petitioner presented no corroborating evidence in support of her assertion of prior managerial permission for her to review office documents. Petitioner's allegation of "prior permissive authority" was thus not credible. Mr. Green gave undisputed testimony that during a third occasion, he observed Petitioner and a non-employee male friend of Petitioner walking and talking in the work area restricted to employees only. Mr. Green approached the couple and immediately brought the rule infraction of no non-employees within the restricted work area to Petitioner's attention, ending by instructing Petitioner to tell her male friend to leave the restricted workshop area immediately. Under these circumstances, and in the presence of a non-employee, Petitioner said to her shop manager: "He'll leave when I want him to leave." Following Petitioner's refusal to obey the shop manager's direct order accompanied by her disrespectful comment, Mr. Green moved to call the local police, and only then did Petitioner's male friend leave the premises. Mr. Green subsequently discussed this matter, as well as the profit loss due to improper taping of cars, with Mr. Link, and they jointly decided not to take disciplinary action against Petitioner at that time. Notice of Termination On Monday, June 23, 2003, Petitioner reported to work at approximately 7:35 a.m. and five hours later, at approximately 12:35 p.m., she had completely taped all nine cars in the shop for repair and painting that day. Petitioner sought out Mr. Link, inquiring what he would have her do next; assist other employees in the shop or go to lunch? Mr. Link instructed Petitioner to go home for the remainder of the day. After her departure, Mr. Link and Mr. Green discussed Petitioner's continuing hurried work habits, her attitude toward management when given a direct order, and her unauthorized presence in the manager's office reviewing business documents. Management considered the following: (1) Petitioner's continued episodes of improper taping was causing an increase in cost and a decrease in profits, (2) Petitioner's negative attitude toward management, and (3) Petitioner's unauthorized presence in the manager's office looking at managerial business documents. Management determined that the above conduct was sufficient basis for her termination as an employee. In the afternoon of June 23, 2003, Mr. Link, with authorization from Mr. Green, telephoned Petitioner and informed her that she was terminated because of her repeated and costly taping errors and her failure to correct those errors. The telephonic notice of termination was followed by a written termination letter with check marks beside the boxes "refusal to perform job duties" and "unable to perform job."5 This document formed the factual basis for Petitioner's termination as an employee. Background and Employer's Policy On February 12, 2001, before she began working at Respondent's Lakeland job site, but while she was working for Respondent at another job site, Petitioner executed an Employment Acknowledgement packet containing the policy(s) and procedures she agreed to follow in the event there occurred any employment disputes, including any type of discrimination. Petitioner also agreed to resolve employment disputes through use of SHRS' Alternative Dispute Resolution (ADR) procedure. Prior Complaints Made by Petitioner While working at Respondent's Longwood, Florida, job site, but before working at the Lakeland job site, Petitioner made one verbal complaint of sexual harassment to Betty Branham, SHRS compliance supervisor, regarding sexual comments regarding her buttocks made by male co-workers. The record does not contain evidence whether this complaint was pursued or dismissed. Petitioner neither made complaints nor did she make any reports of sexual harassment or discrimination, gender or otherwise, at the Lakeland job site during her February 12, 2001, to June 23, 2003, employment tenure there. Petitioner did not file a report with SHRS claiming discrimination because of her gender and/or because she was denied management training opportunities and opportunities for promotion into management. Other Employees Terminated by Respondent During the early hours of June 24, 2003, one day after Petitioner's termination, Mr. Link terminated a male employee, Edward Burgess. Mr. Burgess was a "sander," and he was terminated for "refusal to perform job duties" and "unable to perform job." According to Mr. Link, Mr. Burgess was "taking two-to-three times longer than what he should to sand cars." During the evening hours of June 24, 2003, Mr. Green terminated another male employee, Mr. Link. Mr. Link was terminated, as he recalled, "because another male employee made accusations that while walking behind him Mr. Link bumped into his rear and made sexual gestures." Mr. Link admitted he could not recall, that is, he could not confirm, argue or deny, the other party's versions of what actually occurred and what was said at the time of his bumping into the other employee. The unnamed other employee did not testify. Petitioner, through the testimony of witnesses, of record, and exhibits admitted into evidence, failed to produce a scintilla of substantial and competent evidence to establish: that she was subjected to an adverse job action when, in fact, she was terminated for poor job performance and disrespectful conduct toward management on June 23, 2003; that because of her gender, female, she was treated differently than similarly situated male employees, who were not terminated after violation of work place policy(s); and (3) that she was qualified for the job as managerial trainee but was denied an opportunity for employee managerial training which was provided by her employer to other employees.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief and the Charge of Discrimination filed in this cause by Petitioner, Kelly McKean. DONE AND ENTERED this 18th day of February, 2005, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 18th day of February, 2005.
