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 In August 1985, the Department issued a Request for Proposal (RFP), State Project Number RFP-DOT-85-06, for a demonstration bonding assistance program. The program was authorized in 1985 by Congress, using Federal Highway Administration funds, to assist economically and socially disadvantaged business enterprises (DBEs) to meet the bonding requirements mandated on public works projects, and thereby increase their participation in the bid process. Consistent with existent agency policy, and Section 287.057(16), Florida Statutes, the RFP provided: A selection committee of at least three members will be established to review and evaluate each proposer's response to this Request for Pro- posal and subsequently decide the preference order of the proposers. In response to the RFP, the Department received six proposals. The evidence established that it is Department policy to submit the proposals to a "technical review committee," comprised of three members for evaluation of the technical responsiveness of the proposals, and to an employee of the Department's Bureau of Contractual Services to evaluate the cost responsiveness of the proposals. In this case, the proposals were submitted to a "technical review committee" consisting of two members and to an employee of the Department's Bureau of Contractual Services. The "technical review committee" separately evaluated and scored the technical responsiveness of each proposal, and reported their scores to an Operations and Management Consultant, with the Department's Bureau of Minority Programs. 1/ The Consultant did not evaluate the proposals. He merely averaged the scores of the two members of the "technical review committee," added the cost responsiveness of the proposals received from the Department's Bureau of Contractual Services, and prepared a summary evaluation package for the "Selection Committee." The evaluation package ranked the proposals by score. The "Selection Committee" consisted of the Department's Secretary (Thomas E. Drawdy), Deputy Assistant Secretary (Mel Hilliard), and Director of the Division of Administration (Bruce Gordon). Mr. Gordon, based on the scores set forth in the evaluation package, recommended, and the Committee concurred, that Boone's proposal be accepted. Mr. Gordon did not review any of the proposals submitted in response to the RFP. Kenneth L. Sweet, one of the evaluators on the "technical review committee," is an engineer for the Department's Bureau of Construction. While steeped with a broad range of technical and engineering experience, Mr. Sweet lacked knowledge of the requisites to successfully secure a bonding commitment.
Findings Of Fact The Florida Department of Transportation (hereinafter "DOT") advertised for bids on State Project No. 72190-3530 in Duval County, Florida, with the bids to be closed on June 19, 1985. The notice to contractors and the special provisions included with the bid package provided that the subcontractor participation goal for the project for firms owned and controlled by Disadvantaged Business Enterprises (hereinafter "DBE") was eight percent and for firms owned and controlled by Women Business Enterprises (hereinafter "WBE") was two percent of the total contract bid for that traffic signal installation and resurfacing project. In response to that advertisement for bids, Regency Electric Contracting Company (hereinafter "Regency") submitted a bid of $571,561.86 for the project. Mike Hunter, Inc.; Traffic Control Devices, Inc.; and Wiley N. Jackson Company also submitted bids for that project. Regency was the apparent low bidder. The bid submitted by Regency proposed to utilize 6.21 percent DBE subcontractors and .39 percent WBE subcontractors. Mike Hunter, Inc., proposed to utilize 5.4 percent DBE subcontractors and 2.8 percent WBE subcontractors. Traffic Control Devices, Inc., proposed to utilize 9.8 percent DBE subcontractors and 2.6 percent WBE subcontractors. Wiley N. Jackson proposed to utilize 39.9 percent DBE subcontractors and 2.7 percent WBE subcontractors. DOT, after reviewing the bids, issued a notice of switch in apparent low bidder for the project based upon the failure of Regency to achieve the DBE/WBE project goals and failure to submit documentation of good faith efforts to achieve those goals. Since Mike Hunter, Inc., (the second lowest bidder), also failed to achieve the project's DBE/WBE goals, DOT declared Traffic Control Devices, Inc. (the third lowest bidder), to be the low responsible bidder with its bid of $660,240.47 which is $88,678.61 more than the bid submitted by Regency. The 9.8 percent DBE participation proposed by Traffic Control Devices, Inc., was achieved by allocating a portion of the electrical work being performed by Traffic Control Devices, Inc., to a single DBE subcontractor at a price which was approximately double that proposed to be charged by Regency utilizing its own forces. W & T Enterprises, Inc., is the sole DBE subcontractor proposed to be utilized by Traffic Control Devices, Inc. Although W & T is a North Carolina corporation, it is certified by DOT as a DBE subcontractor for participation in contracts awarded by DOT. W & T qualified to transact business in the State of Florida on August 4, 1980, but its permit to transact business in Florida was revoked on December 16, 1981 for failure to file the annual report as required by law. Since that time, W & T has not re-qualified itself to do business in Florida, and W & T cannot now qualify to do business in Florida since there is now a Florida corporation under the name of W & T Enterprises, Inc. which is not affiliated with the North Carolina corporation, so that that name is no longer available in the State of Florida. Further, the North Carolina W & T Enterprises, Inc. is not registered under a fictitious name in Seminole County where it is alleged to maintain an office. Since Regency's Utilization Form No. 1 reflected that Regency had failed to achieve either the DBE or the WBE goals required for the project, an evaluation was made by DOT's "good faith efforts" review committee of Regency's "good faith efforts" documentation required to be submitted with its bid. In an attempt to evidence "good faith efforts" Regency submitted with its bid a one-page note which lists the DBE and WBE firms contacted by Regency. Regency only contacted a total of ten potential subcontractors and did not contact all of the potential subcontractors in any of the possible areas of subcontracting. The note further fails to indicate when the solicitations were made or that the solicitations were made at least seven days prior to the bid letting. Further, the few solicitations that were made were done by telephone and not by certified mail, return receipt requested, or by hand-delivery with a receipt. There is no evidence to indicate what information was given in the solicitations or that Regency offered to assist the firms contacted with preparation of their quotes, with review of the bid package, or with the obtaining of any required bonding or insurance. Lastly, none of the quotes obtained from any of the DBE or WBE firms contacted were attached to Regency's bid. DBE goals and WBE goals are established by DOT on a project-by-project basis. The evidence in this cause indicates that there were a number of facets to the project including, for example, grassing, asphalt/concrete, barricades/signs, guard rails, signalization and striping. Although one of Regency's witnesses who was not qualified as an expert made the statement that there was an insufficient amount of work available for subcontracting in the project, no specifics were offered as to the basis for that opinion other than the fact that Regency did not choose to subcontract any of the signalization work. No evidence was offered to show what portions of the project involved other-than-signalization work what portion of the project involved materials, or why no portion of the signalization should be subcontracted other than that witness's testimony that loop assembly work proposed to be subcontracted to W & T Enterprises Inc., by Traffic Control Devices, Inc., doubled the price of that portion of the work over Regency's estimate of the costs to do the loop assembly using Regency's own forces. Further, two of the four bidders were able to allocate sufficient portions of the project to subcontractors to meet the DBE goals set by DOT for the project, and three of the four bidders met the WBE goals.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered declaring the bid of Regency Electric Contracting Company on State Project No. 72190-3530 nonresponsive, rejecting that bid, and dismissing with prejudice Regency's formal protest of intent to award a contract. DONE and ORDERED this 1st day of November, 1985, at Tallahassee, Florida. Hearings Hearings LINDA M. RIGOT, Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 1st day of November, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-2820 The following proposed findings of fact of Regency Electric Contracting Company have either been adopted verbatim or have been adopted as modified to conform to the evidence: 3-6 and 16-19. The following proposed findings of fact of Regency Electric Contracting Company have been rejected as not constituting findings of fact but as constituting either argument of counsel or conclusions of law: 1, 2, 13-15, and 20. The following proposed findings of fact of Regency Electric Contracting Company have been rejected as unnecessary: 7-12. The following proposed findings of fact of the Department of Transportation have either been adopted verbatim or have been adopted as modified to conform to the evidence: 1, 4, 7, and 8. The following proposed findings of fact of the Department of Transportation have been rejected as not constituting findings of fact but as constituting either argument of counsel or conclusions of law: 2, 3, 6, and 11. The following proposed findings of fact of the Department of Transportation have been rejected as unnecessary: 5, 9, and 10. The following proposed finding of fact of the Department of Transportation has been rejected as not being supported by any evidence: 12. COPIES FURNISHED: Larry D. Scott, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Ronald W. Brooks, Esquire 863 East Park Avenue Tallahassee, Florida 32301 Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building, M.S.-58 Tallahassee, Florida 32301
The Issue The issues are whether Respondent violated Sections 489.129(1)(i), (l), (m) and (o); 489.119(2); 489.1195(1)(a); and 489.1425(1), Florida Statutes, for the reasons stated in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record of this proceeding, the following findings of fact are made: Petitioner is the state agency responsible for regulating the practice of contracting in the State of Florida. At all times material hereto, Respondent was licensed as a certified general contractor in the state, pursuant to license number CG C008922. Respondent's license is currently inactive. Respondent has been a contractor for nearly 30 years, and has never been subject to disciplinary action against his license until this proceeding. Respondent was licensed as the licensed qualifying agent for ECE from January 1998 through February 2001, for a fee of $400.00 per month. As the qualifying agent, Respondent was responsible for all of ECE's contracting activities, in accordance with Section 489.1195(1)(a), Florida Statutes, which states: "All primary qualifying agents for a business organization are jointly and equally responsible for supervision of all operations of the business organization; for all field work at all sites; and for financial matters, both for the organization in general and for each specific job." Respondent did not obtain a certificate of authority for ECE. On November 16, 1998, ECE entered into a contract in the amount of $15,577.00 with Carl and Darlene Weinzierl to install aluminum siding at their residence in Terra Ceia, Florida. The contract specified that ECE would use Reynolds brand siding in the construction. ECE actually used an inferior grade of aluminum siding. The contract did not contain a notice explaining to the Weinzierls their rights under the Construction Industry Recovery Fund. Such notice is required by Section 489.1425, Florida Statutes. ECE represented to the Weinzierls that they would receive a mortgage to pay for the aluminum siding and to consolidate their other debts at an interest rate of 6.5 percent. The actual interest rate on the mortgage was 18 percent. On December 14, 1998, ECE commenced work on the Weinzierls' house. ECE never completed the work. On January 22, 1999, ECE filed a lien against the Weinzierls' property in the amount of $15,577.00. Respondent had no knowledge of the project on the Weinzierls' house, of the mortgage arrangement made by ECE, or of the lien filed by ECE against the Weinzierls' property. On November 5, 1998, ECE entered into a contract in the amount of $3,624.00 with Barbara Lewis to install soffit and fascia at her residence in Bradenton, Florida. The contract did not contain a notice explaining to Ms. Lewis her rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE represented to Ms. Lewis that she would receive financing to pay for the soffit and fascia at an interest rate of 11 percent. The actual interest rate of the financing was 18 percent. ECE performed the work on Ms. Lewis' house in one day. Respondent had no knowledge of the project at Ms. Lewis' house or of the financing arrangement made by ECE. On August 16, 1998, ECE entered into a contract in the amount of $13,250.00 with John Maxwell to install aluminum siding at his residence in Bradenton, Florida. The contract did not contain a notice explaining to Mr. Maxwell his rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at Mr. Maxwell's house on August 18, 1998, and completed the project on August 27, 1998. On August 31, 1998, ECE recorded at the Manatee County Circuit Court a mortgage on Mr. Maxwell's property in the amount of $13,427.55 for the installation of aluminum siding. Mr. Maxwell had signed no documents to place a mortgage on his property, and received a satisfaction of mortgage on May 19, 1999. Respondent had no knowledge of the project to be completed at Mr. Maxwell's house or of the mortgage recorded by ECE. On October 10, 1998, ECE entered into a contract in the amount of $3,663.00 with Richard Lanois and Beverly Carroll to install soffit and fascia on their residence in Bradenton, Florida. The contract did not contain a notice explaining to Mr. Lanois and Ms. Carroll their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at the house on October 13, 1998, and completed the project on October 15, 1998. ECE recorded a financing statement to obtain a lien on the property of Mr. Lanois and Ms. Carroll with the Manatee County Circuit Court on October 22, 1998. Neither Mr. Lanois nor Ms. Carroll had signed the financing statement that ECE filed at the court. Respondent had no knowledge of the project at the residence of Mr. Lanois and Ms. Carroll, or of the financing statement filed by ECE to obtain a lien on their property. On December 2, 1998, ECE entered into a contract in the amount of $5,739.00 with Paul and Linda Porter to install Reynolds brand thermal double pane windows at their residence in Bradenton, Florida. The contract did not contain a notice explaining to the Porters their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at the Porters' house on December 5, 1998, and completed the project on December 17, 1998. ECE installed BetterBilt brand windows rather than Reynolds windows, without the Porters' approval. On December 17, 1998, ECE recorded at the Manatee County Circuit Court a mortgage on the Porters residence in the amount of $5,775.80. The Porters had signed no documents to allow this mortgage to be placed on their property. Respondent had no knowledge of the project at the Porters' residence or of the mortgage recorded by ECE on the Porters' residence. On November 2, 1998, ECE entered into a contract in the amount of $6,426.00 with William C. Roach to install Reynolds thermal double pane windows on his residence in Bradenton, Florida. The contract did not contain a notice explaining to Mr. Roach his rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at the Roach residence on November 2, 1998, and completed the project on November 3, 1998. ECE installed BetterBilt brand windows instead of Reynolds windows, without Mr. Roach's permission. ECE represented that Mr. Roach would receive financing to consolidate the cost of the windows, his mortgage, and his credit card debt. In fact, Mr. Roach received financing only for the cost of the windows. Respondent had no knowledge of the project at Mr. Roach's residence or of the financing arrangement that ECE entered into with Mr. Roach. On November 28, 1998, ECE entered into a contract in the amount of $3,635.90 with Carol Lipp to install Reynolds brand soffit and fascia on her residence in Bradenton, Florida. The contract did not contain a notice explaining to Ms. Lipp her rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at Ms. Lipp's residence on November 30, 1998, and completed the project on December 7, 1998. ECE recorded a financing statement with the Manatee County Circuit Court in order to obtain a lien against Ms. Lipp's property. Ms. Lipp had not signed the financing statement. Respondent had no knowledge of the project at Ms. Lipp's residence or of the financing statement filed by ECE on Ms. Lipp's residence. On January 22, 1999, ECE entered into a contract in the amount of $13,504.00 with Shirley G. Bradley to install 11 Reynolds thermal double pane windows and to enclose the lanai and front entry of her residence in Englewood, Florida. The contract did not contain a notice explaining to Ms. Bradley her rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at Ms. Bradley's residence on January 25, 1999, and completed the project on February 9, 1999. ECE installed BetterBilt brand windows instead of Reynolds windows, without Ms. Bradley's permission. ECE represented to Ms. Bradley that she would receive financing for the project at an interest rate of 16 percent. In fact, ECE obtained a loan for Ms. Bradley at an interest rate of 21 percent. Respondent had no knowledge of the project to be completed at Ms. Bradley's residence or of the financing arrangement between ECE and Ms. Bradley. On October 13, 1998, ECE entered into a contract in the amount of $6,511.10 with George Haight to install Reynolds thermal double pane windows on his residence in Bradenton, Florida. The contract did not contain a notice explaining to Mr. Haight his rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE installed BetterBilt brand windows instead of Reynolds windows, without Mr. Haight's permission. Respondent had no knowledge of the project to be completed at Mr. Haight's residence. On December 7, 1998, ECE entered into a contract in the amount of $15,216.00 with Shirley Behen to install Reynolds thermal double pane windows on her residence in Bradenton, Florida. The contract did not contain a notice explaining to Ms. Behen her rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE represented to Ms. Behen that she would receive financing for the windows that would also consolidate her roof payments and credit card debt. ECE provided none of the promised financing. ECE installed BetterBilt brand windows instead of Reynolds windows, without Ms. Behen's permission. On December 15, 1998, ECE recorded a mortgage on Ms. Behen's residence with the Manatee County Circuit Court in the amount of $10,713.95. Ms. Behen had not signed any document to secure a second mortgage on her property. Respondent had no knowledge of the project to be completed at Ms. Behen's residence or of the mortgage filed on her property by ECE. On November 17, 1998, ECE entered into a contract in the amount of $7,845.00 with Debby and Wally Keefe to install Reynolds thermal double pane windows on their residence in Bradenton, Florida. The contract did not contain a notice explaining to the Keefes their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE represented to the Keefes that they would receive a mortgage to pay for the windows and consolidate their credit card debt at a rate of 6.5 percent. In fact, ECE provided a mortgage with an actual interest rate of 18 percent. Respondent had no knowledge of the project to be completed at the Keefes' residence or of the mortgage arrangement between the Keefes and ECE. On September 29, 1998, ECE entered into a contract in the amount of $8,531.00 with Joe and Laura Poulin to install vinyl siding on their three duplexes in Bradenton, Florida. The contract did not contain a notice explaining to the Poulins their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE recorded a financing statement with the Manatee County Circuit Court, obtaining a lien against the Poulins' property. The Poulins did not sign the financing statement. Respondent had no knowledge of the project to be completed at the Poulins' residence or of the financing statement filed by ECE. In August 1998, ECE entered into a contract in the amount of $8,307.00 with Darwin and Joyce Wilson to install 17 Reynolds thermal double pane windows on their residence in Sarasota, Florida. The contract did not contain a notice explaining to the Wilsons their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced the project on September 5, 1998, and completed the project on September 7, 1998. ECE installed BetterBilt brand windows instead of Reynolds windows, without the Wilsons' permission. Respondent had no knowledge of the project to be completed at the Wilsons' residence. Also in August 1998, ECE entered into another contract with the Wilsons, in the amount of $14,000.00, to install Reynolds vinyl siding on their residence. The contract did not contain a notice explaining to the Wilsons their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE began installing the vinyl siding on October 15, 1998, and completed the project on November 15, 1998. ECE represented to the Wilsons that they would receive a new first mortgage that would include the price of the windows, the siding, their house payment, and their credit card debt. In fact, ECE provided no such mortgage. Respondent had no knowledge of the second project to be completed at the Wilsons' residence. On October 7, 1998, ECE entered into a contract in the amount of $5,171.00 with Derek Campagna to install vinyl siding and fascia on his residence in Bradenton, Florida. The contract did not contain a notice explaining to Mr. Campagna his rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work on October 8, 1998, and completed the project on October 10, 1998. On or about January 5, 1999, ECE filed a lien against Mr. Campagna's property in the amount of $5,171.40. Respondent had no knowledge of the project to be completed on Mr. Campagna's residence or of the lien filed by ECE. The misrepresentation of the actual interest rate to be charged for financing the above projects was the commission of fraud or deceit in contracting by ECE and its representatives. The installation of BetterBilt windows in those houses the owners of which had contracted for Reynolds windows constituted the commission of fraud or deceit in contracting by ECE and its representatives. Respondent was unaware of ECE's fraudulent activities in the Bradenton/Sarasota area at the time they were occurring. Respondent believed that ECE did business exclusively in Indian River, St. Lucie, and Martin counties on the east coast of Florida. Respondent submitted the proper forms for the relevant permits and actively supervised ECE's construction work on the east coast of Florida. There was no evidence that ECE used Respondent's license to obtain permits for the projects it undertook in the Bradenton/Sarasota area. The evidence established that ECE pulled no permits at all for those projects. From all the evidence presented at the hearing, the inference may fairly be drawn that ECE purposely kept Respondent in the dark concerning its activities in the Bradenton/Sarasota area. Respondent first learned of ECE's activities in Bradenton/Sarasota through a telephone conversation with a friend, Peter Green. Mr. Green was a mortgage broker, and told Respondent that he was trying to secure financing for some of the ECE clients named above. Mr. Green told Respondent that some of these clients were very upset with ECE, and asked Respondent if he was aware of the problems. Respondent told Mr. Green that he was unaware ECE was doing any work on the west coast of Florida. Mr. Green gave Respondent the phone number of Darlene Weinzierl, one of the disgruntled ECE customers. Following her own bad experience with ECE, Ms. Weinzierl had undertaken an investigation of the company. She searched courthouse records for liens filed by ECE and contacted all the individuals whose names she found. Ms. Weinzierl heard "horror stories." A woman who could barely speak English told her that ECE had slapped siding over rotting woodwork, sent her a bill for $20,000, then filed a lien on her house. Another woman told Ms. Weinzierl that when she attempted to cancel her contract, the ECE salesman showed up at her door accompanied by a man ostentatiously wearing a gun in a shoulder holster. Other customers told Ms. Weinzierl that ECE had forged mortgages on their property. Ms. Weinzierl's hearsay testimony is unsupported by other competent substantial evidence and therefore cannot be relied on for the truth of the statements contained therein. However, it is undisputed that Ms. Weinzierl later conveyed this information to Respondent. Respondent telephoned Ms. Weinzierl on January 23, 1999. Ms. Weinzierl conveyed to Respondent everything she had learned about ECE. The next day, Respondent spoke with James Pizzo, Jr., one of the principals of ECE. Mr. Pizzo told Respondent that he had a very aggressive salesman who "had made a lot of promises to people," but that he was in the process of responding to the complaints and correcting the situation. Respondent asked Mr. Pizzo why ECE was doing business on the west coast of Florida. Mr. Pizzo replied that ECE's telemarketing effort had saturated the east coast, and he believed there was a fresh market on the west coast. Because he had worked with Mr. Pizzo for over a year and had a good working relationship with ECE, Respondent took at face value Mr. Pizzo's promise to correct the problems. Respondent took no action on his own, and continued to act as the qualifying agent for ECE. Respondent did not visit any of the west coast job sites or make any independent effort to contact ECE's victims. FDLE commenced a RICO investigation of ECE in the spring of 1999. Special Agent Charles Leonard, the FDLE investigator, first interviewed Respondent on May 10, 1999. Respondent was never a target of the investigation, and cooperated fully. Respondent did not sever his relationship with ECE until February 2001. By this time, 14 complaints had been filed against ECE by customers in the Bradenton/Sarasota area, and ECE had taken no action to address the situation beyond ceasing to do business in the area. In mitigation of his failure to take any action for two years after he became aware of ECE's fraudulent practices, Respondent pointed to the precarious state of his health. In January 2000, Respondent's car was stopped on I-95 when it was rear-ended by a truck traveling at 50 to 60 miles per hour. Respondent received a concussion and suffered excruciating headaches. His neurologist ordered an MRI and found a brain tumor. The tumor could not be removed entirely. Respondent is also a diabetic. Respondent continues to have headaches so severe that he requires trigger point injections of pain medication and epidural injections in his neck and upper spine every few months. He regularly takes Tylenol III with codeine. He requires an MRI every six months to monitor his brain tumor. Prior to his brain surgery, Respondent managed his diabetes through oral medication; however, since the surgery he has needed three injections of insulin daily. At the same time he severed his relationship with ECE, Respondent notified Petitioner that he was transferring his license to inactive status. Respondent no longer actively practices contracting. However, his current position as a construction project manager for the Broward County School Board requires that he hold at least an inactive general contractor's license. Respondent credibly testified that if he were to lose his current job, and the health insurance that goes with it, he could not pay his medical bills.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Section 489.129(1)(l) and (m), Florida Statutes, suspending Respondent's license for three years from the date that Respondent re-activates his license, imposing an administrative fine in the amount of $3,000.00, and requiring Respondent to pay costs of Petitioner’s investigation. DONE AND ENTERED this 12th day of March, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2002. COPIES FURNISHED: Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1007 E. Cole Fitzgerald, III, Esquire Fitzgerald, Hawkins, Mayans & Cook Post Office Box 3795 West Palm Beach, Florida 33401 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Suzanne Lee, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact KTT was incorporated in January, 1987, with F. Kay McDougald owning 90 percent of the issued stock and her daughter, Tracy McDougald, owning 10 percent of the issued stock. F. Kay McDougald is president, treasurer, and one director of the Corporation, and Tracy McDougald is secretary and the second of two directors. Paid in capital was $500. At the time KTT was incorporated, F. Kay McDougald held one-third of the outstanding stock in Florida Transport Services (FTS) with the balance of the shares held by her husband. The land upon which FTS has its office and keeps its equipment is owned by the McDougalds jointly. FTS pays monthly rent to the McDougalds. Upon the incorporation of KTT, the latter shared the space with FTS and paid monthly rent to the McDougalds. Since the incorporation of FTS, circa 1974, F. Kay McDougald has worked in the company with her husband. She has generally functioned as office manager, bookkeeper and in charge of all clerical-type functions. In addition, she performed operational functions by dispatching vehicles and making any and all operational decisions during the absence of her husband. By experience, she is fully qualified to operate KTT as an independent business. Since becoming incorporated, KTT has purchased one tractor-trailer, and has obtained lease operator agreements with the owner-drivers of eight vehicles, of which three are miniwheelers, four are tractor trailers, and one a tandem truck. All of these vehicles are capable of, and are used primarily for, hauling road aggregates. In continuing operations during 1987 to date of hearing, the net worth of KTT has increased to approximately $20,000. As a subchapter S corporation, the income of KTT is taxable to the owners. FTS also operates vehicles used in hauling road aggregates; however, most of FTS equipment is tractor trailers. Since KTT began operations, FTS has leased equipment to and from KTT. Due to many years working closely with competitors Mac Asphalt Company and Trans Phos, FTS and Kay McDougald developed a cooperative relationship with those companies, and KTT has been able to lease equipment from those companies when needed. No evidence was presented that Mr. McDougald exercises any control over, or has any interest in, the operation of KTT other than a spousal interest in his wife succeeding in the business. Some three years ago two or more contractors approached Mrs. McDougald to suggest that she form a corporation, obtain minority business certification, and bid to subcontract on DOT road building contracts for the hauling of road aggregates. After considering the concept for about two years, Mrs. McDougald formed KTT and initiated the application for certification here being considered.
The Issue Whether Petitioner's bid on State Job No. 86075-3459 was non-responsive and Respondent's award of the bid to the next lowest responsible bidder was arbitrary, illegal or dishonest.
Findings Of Fact Petitioner timely submitted its bid on State Job No. 86075-3459 and this bid was the lowest received by DOT on this project. The DBE requirement on this bid was 11%. This means each bidder had to show on its submittal that at least 11% of the project cost would go to a minority business subcontractor. With its bid submittal, on the Disadvantaged Business Enterprise (DBE) Utilization Summary (Form 275-020-003 Minority Prog. 11/87), Petitioner listed as DBE subcontractors Reliable Trucking, Inc. with $100,000 as the dollar amount for DBE goal and $280,000 for Community Asphalt Corporation. (Exhibit 1.) These two figures exceeded the 11% minimum DBE requirement. Community Asphalt Corporation had been a certified DBE subcontractor in early 1990 but in May 1990 its certification expired and was not renewed. Accordingly, at the time of the bid opening, Community Asphalt was not listed on the list of certified DBE subcontractors DOT provided to bidders with the bid forms to complete for this project. Petitioner had initially shown only Reliable Trucking, Inc. on Exhibit 1 with $400,000 as the dollar amount for the DBE goal. Reliable Trucking is a certified DBE. Petitioner received a late quote from Community Asphalt and just before submitting its bid added Community Asphalt to its DBE Utilization Summary, interlining the $400,000 amount for Reliable Trucking and changed this amount to $100,000. Although Petitioner still intended to use Reliable Trucking for work on this project in excess of $400,000 its policy, which was here followed, is to show on its DBE Utilization Summary submitted with its bid only a small percentage over the required minimum. Therefore, when Community Asphalt was added as a DBE subcontractor, the dollar amount to Reliable Trucking was reduced. Petitioner's employee who added Community Asphalt to the DBE Utilization Summary checked to see that Community Asphalt was a certified DBE but, unfortunately, looked at the list of certified DBE subcontractors furnished by DOT for an earlier bid--not the current list. The current list which had been supplied to Petitioner did not list Community Asphalt as a certified DBE. When the bids received were first checked by the DOT employee who reviews bids to see that DBE requirements are met, she approved the bid but set it aside for further check. Later, after realizing Community Asphalt was not on the approved list of DBE's she disapproved the bid and it proceeded to the Good Faith Efforts Committee for review. Petitioner submitted no documentation of any good faith efforts to comply with the DBE requirements. This is understandable as Petitioner thought when the bid was submitted that Community Asphalt was a certified DBE and its bid complied with the DBE requirements. In reviewing and accepting bids for DOT projects, Respondent relies entirely on the documentation submitted with the bid and does not allow bidders to supplement the bid after opening.
Recommendation It is recommended that the protest of Bergeron Land Development, Inc. to the rejection of its bid submitted on State Job No. 86075-3459 be dismissed with prejudice. DONE and ENTERED this 23rd day of October, 1990, in Tallahassee, Leon County, Florida. KEN N. AYERS 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 23rd day of October, 1990. APPENDIX Respondent's proposed findings are generally accepted, except for: Rejected. The DBE forms submitted by Petitioner, as corrected by Petitioner before submittal, showed Reliable Trucking, Inc., a certified DBE, to receive only $100,000 in subcontracts, far less than the 11% DBE participation required. Rejected. Whether Reliable Trucking had a firm contract with Petitioner to provide in excess of $400,000 subcontracting work on this project is immaterial if the DBE utilization form submitted with the bid fails to show the DBE utilization goal is attained or documentation of good faith efforts are not included. Rejected that the mistake by Petitioner was a non-material mistake. Bids have to be accepted as received. Rejected. Rejected. Rejected. Accepted as an accurate quote of Rule 14-78.003,Florida Administrative Code. The legal conclusion that the ruledoes not require evidence of good faith efforts be included withthe bid submitted is rejected. The conclusion of law that Respondent violated its own rule is rejected. COPIES FURNISHED: John H. Beck, Esquire 1026 East Park Avenue Tallahassee, Florida 32301 Paul J. Martin, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 John Radey, Esquire Post Office Drawer 11307 Tallahassee, Florida 32302 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 605 Suwannee Street, Room 562 Tallahassee, Florida 32399-0458
Findings Of Fact Respondent, Florida Department of Transportation (DOT), is required by state and federal law to ensure that 10 percent of state and federal funds available for construction, design and consulting service-contracts be provided as an opportunity to small business concerns owned and controlled by socially and economically disadvantaged individuals (DBE). DBE contract goals are established by DOT for each construction contract. Every bidder must submit a form to DOT which either documents compliance with the DBE contract goal or, if compliance is not met, must provide sufficient information to demonstrate that good faith efforts were made by the bidder to meet the goal. Prior to June 1984, DOT's practice allowed contractors ten days after the bid letting to correct their DBE forms or to submit their good faith effort documentation. However, effective May 23, 1984, DOT adopted Rule 14- 78.03(2)(b), F.A.C., which provides in pertinent part: 4. For all contracts for which DBE . . . 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 . . . participation information shall be submitted with the contractor's bid proposal. Award of the contract shall be conditioned upon submission of the DBE . . . 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. (Emphasis supplied.) In August 1984, subsequent to the adoption of Rule 14.78.03(2)(b)4., F.A.C., DOT sent a "Notice to All Contractors" which advised . . . all submittals for evaluating Good Faith Efforts in meeting DBE/WBE goals must be submitted with the bid proposal in order to be considered for award of the contract. Failure to submit the Good Faith Effort documentation with the bid may result in rejection of the bid. Petitioner, Wiley N. Jackson Company, acknowledges receipt of the "Notice to All Contractors." By notice dated August 30, 1984, contractors were advised that sealed bids would be received until 10:30 a.m., September 26, 1984, on various road projects. The bid documents advised that the DBE goal for Job Number 89095-3411 was 10 percent. The specifications for Job Number 89095-3411 contain extensive provisions with regard to compliance with the DBE contract goals. Among these provisions is the following language contained in Section 2-5.3.2. 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. The Contractor's bid submission shall include the following information (Submitted on Form No. 141-12 - DBE/WBE Utilization Form No. 1): 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 toward DBE and WBE goals. A description of the work each named DBE and 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. (Emphasis supplied.) The specifications list, as grounds for disqualification of bidders, failure to satisfy the requirements of Section 2-5.3. Further, Section 2-5.3.3 of the specifications advised bidders that: 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; provided however, a contractor's good faith efforts obligation does not require a contractor to accept a quotation from a DBE or WBE which exceeds the lowest quotation received from any subcontractor by more than one percent. 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. Sections 2-5.3.2 and 2-5.3.3 are drawn directly and literally from Rule 14-78.03(2)(b). Consequently, all bidders were apprised by rule and bid specifications that if the DBE contract goal could not be met, sufficient information had to be submitted with their bid to demonstrate their good faith efforts to meet the goal, and the criteria that would be utilized to evaluate their efforts. On September 26, 1984, Petitioner submitted the low bid in the amount of $7,688,271.91 for Job Number 89095-3411. Attached to the bid was Form 141-12 - DBE/WBE Utilization Form No. 1, indicating that Petitioner's proposed utilization of DBEs was 0.2 percent of the total contract amount; $15,385 on a total bid of $7,688,271.91. Accompanying Petitioner's bid was a handwritten letter which stated: Gentlemen: To demonstrate good faith effort prior to the bid date for this project, we submitted seventy-three registered letters to prospective D.B.E. Subcontractors. On the major items we propose to sublet, comparative D.B.E. and non-D.B.E. quotations were received as follows: Box Culvert - J. E. Hill (D.B.E.) - 505,762.00 Shelton & Son - 369,092.00 Difference - $136,670.00 Fencing - Mikell (D.B.E.) - 55,727.00 Cyclone - 46,833.00 Difference - $ 8,894.00 Grassing - Mikell (D.B.E.) - 91,919.00 Agricultural Land - 63,198.00 Difference - $28.721.00 In view of the above, we are unable to meet the D.B.E. Goal and, at the same time, submit a realistic and competitive bid. Copies of pertinent quotations are attached and copies of D.B.E. solicitations (registered letters) and responses are available for your review. Quotations reflecting one unaccepted DBE proposal, and one accepted non-DBE proposal, in each of three areas--concrete, fencing and grassing--were attached to the letter. In each instance the DBE proposal exceeded the non-DBE proposal by more than one percent. No other documentation was submitted with Petitioner's bid to demonstrate its good faith efforts to meet the DBE contract goal. Respondent, Dickerson Florida, Inc. (Dickerson), was the second low bidder with a bid of $7,926,819.49. Dickerson's bid reflected a DBE participation of 10.8 percent. Upon the closure of bidding, Petitioner's bid was submitted to the Good Faith Effort Committee at DOT to evaluate the information contained in the bid to determine whether Petitioner's documentation evidenced a good faith effort to meet the DBE goal. That committee found Petitioner's bid documentation failed to demonstrate a good faith effort to meet the DBE goal, and recommended that Petitioner's bid be declared non-responsive and be rejected. DOT declared Petitioner's bid non-responsive and rejected its bid. DOT proposed awarding the contract to Dickerson. Petitioner's bid documentation failed to demonstrate a good faith effort to meet the DBE contract goals. The documentation failed to demonstrate that: (1) Petitioner, at least seven days prior to letting, had provided written notice to all certified DBEs, or, of what the DBEs had been informed, (2) Petitioner had selected economically feasible portions of the work to be performed by DBEs, (3) Petitioner had provided interested DBEs with assistance in reviewing the contract plans and specifications, and (4) Petitioner had selected for subcontract types of work that matched the capabilities of the solicited DBEs. Further, Petitioner's documentation did not include all quotations received from DBEs. Job Number 89095-3411 included several categories of work: box culverts, signs, landscaping, guardrail, fencing, traffic striping, trucking, paving, grading and miscellaneous concrete. The bid documentation submitted by Petitioner did not indicate the items it attempted to subcontract, nor what efforts, if any, it had expended to solicit DBE participation beyond "a letter" it had mailed, at an indeterminate date, to some 73 unidentified "prospective DBE subcontractors." Facially, Petitioner's documentation evidenced a pro forma effort. Subsequent to the bid closing, Petitioner forwarded to DOT copies of the 73 letters it had mailed to "prospective DBE subcontractors," together with the certified mail return receipts. Petitioner was in possession of these documents prior to the close of bidding, and could have submitted them with its bid. DOT's Good Faith Effort Committee declined to consider Petitioner's postbid submission. The committee interpreted Rule 14-78.03, F.A.C., to require the DBE participation information be submitted with the bid proposal, and to preclude consideration of postbid submissions. DOT has at all times acted consistently with this interpretation.
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 Transportation rejecting the bid submitted by Petitioner, Wiley N. Jackson Company, on State Project No. 89095-3411, Martin County, Florida, and awarding the contract to Respondent, Dickerson Florida, Inc. DONE and ENTERED this 31st day of May, 1985, at Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 31st day of May, 1985. COPIES FURNISHED: David T. Knight, Esquire Shackleford, Farrior, Stallings and Evans, P.A. Post Office Box 3324 Tampa, Florida 33601 Larry D. Scott; Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Robert M. Ervin, Esquire Thomas M. Ervin, Jr., Esquire Ervin, Varn, Jacobs, Odom & Kitchen Post Office Drawer 1170 Tallahassee, Florida 32302 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue The issues in this case concern the question of the entitlement of the Petitioner to certification as a Minority Business Enterprise within the meaning of Chapter 288, Florida Statutes and Rule 13-8.005, Florida Administrative Code. In particular, the issue to be resolved is whether Merrie J. Lee, the majority person within this corporation and owner of more than 51 percent of the stock, controls the management and daily operations of the corporation.
Findings Of Fact On July 28, 1988, the Respondent received an application from Merrie J. Lee Construction Company, Petitioner, requesting certification as a Minority Business Enterprise under the authority of Chapter 288, Florida Statutes and Rule 13-8.005, Florida Administrative Code. Merrie J. Lee is the sole director of that corporation and is the minority person within the corporation, by virtue of the fact that she is a female. She is also the president of the corporation. Lee M. Brown, a non-minority person, is the vice-president. William V. Lee, the brother to Merrie J. Lee is the secretary/treasurer to the corporation. He is a non-minority person. The business of Merrie J. Lee Construction Company is underground utilities. When the corporation was formed Merrie J. Lee contributed $140, Lee M. Brown $100 and William V. Lee $100, as capitalization. Of the 10,000 stock shares, 1,000 have been issued. At the inception of the corporation Merrie J. Lee held 52 percent of the stock. She now holds 68 percent of the stock in that her father Wayne E. Lee bade a gift to his daughter of his 16 percent of the stock shares that had been issued. This arrangement was made following the request for certification. As a result, Merrie J. Lee owns 68 percent of the issued stock shares, her brother owns 16 percent and Lee Brown owns 16 percent. Petitioner is a small business corporation with less than 25 full-time employees. It operates the business at an address of 1136 Nestling Court, Gulf Breeze, Florida 32561. This is the residence address of Ms. Lee and has been provided to her rent-free from her father Wayne E. Lee who owns the property. Merrie J. Lee Construction Company is a Florida corporation having been incorporated on May 3, 1988. Thus far, the work that the company has performed has been in the public right-of-way. The work that has been done by the Petitioner has been conducted in Santa Rosa, Escambia and Okaloosa Counties in Florida. Under the terms of the Articles of Incorporation, Article Nine, the power to adopt, alter or amend or repeal By-Laws is vested in the shareholders. Merrie J. Lee holds the majority position among the shareholders. Article III, Section 1, of the By-Laws points out that the function of the corporation as an entity shall be exercised by or under the authority of and the business affairs of the corporation shall be managed under the direction of the Board of Directors. In this instance, that means Merrie J. Lee, the sole director. Article IV, Section 2, of the By-Laws provides in part that the officers of the corporation shall have the following duties: THE PRESIDENT shall be the chief executive officer of the corporation, shall have general and active management of the business and affairs of the corporation subject to the directions of the Board of Directors, and shall preside at all meetings of the shareholders and Board of Directors. THE SECRETARY shall have custody of, and maintain, all of the corporate records except the financial records; shall record the minutes of all meetings of the shareholders and the Board of Directors, send all notices of meetings out, and perform such other duties as may be prescribed by the Board of Directors or the President. THE TREASURER shall have custody of the corporate funds and financial records, shall keel full and accurate accounts of receipts and disbursements and render accounts thereof at the annual meetings of the shareholders and whenever else required by the Board of Directors or the President, and shall perform such other duties as may be prescribed by the Board of Directors or the President. Article III, Section 10, of the By-Laws provides that a majority of the number of directors fixed by the By-Laws shall constitute a quorum for the transaction of business. The act of the majority of the directors present at the meeting which constitutes the quorum shall be the act of the Board of Directors. This means that in this corporation in which there is only one director by the terms of the legal documentation, Merrie J. Lee controls the corporation. In actuality given the limited experience which Merrie J. Lee has had in the conduct of an underground utilities business; the similarity of this business to that of her father, a company known as Utility Service Company, which specializes in underground utility construction; the familial relationship between Merrie J. Lee and her brother and father, the latter two persons having substantial influence in the business affairs of the Petitioner; the reliance upon her father for financial support; the necessity to trade upon his reputation in the business community to attract jobs and the close relationship between her father's corporation and the Petitioner corporation concerning employees and equipment, meaningful control of Merrie J. Lee Construction Company on the part of Merrie J. Lee, the minority person, cannot be found. Examples of this close affiliation concerns the fact that, at present, Merrie J. Lee is a full-time, salaried employee of the Utility Service Company, which is owned by Wayne Lee and William Lee. Her duties with that company include answering the phone, bookkeeping, paying bills, and handling radio traffic. She has no function as a corporate officer with Utility Service Company or any other company excepting Merrie J. Lee Construction Company. In her position with Utility Service Company she is not called upon to sign checks. Her work with Utility Service Company commenced in 1985. At this time she is training a replacement with the expectation of taking a full-time position with Merrie J. Lee Construction Company. Prior to her affiliation with Utility Service Company Merrie J. Lee had worked for Gulf Isles Utility Company, a water and sewer company, owned and operated by her father. Her duties with Gulf Isles Utility Company included answering the phone, attending customer complaints, reading meters and turning service on and off. Before her time of employment with Gulf Isles Utility Company Ms. Lee had worked part-time with Gulf Island National Seashore on Pensacola Beach, Florida and her duties included registering campers and assisting those campers during their stay at the park. She also collected toll fees from the campers. Ms. Lee has worked in a bait and tackle shop in the past and as a part-time daycare worker. Merrie J. Lee has a high school diploma and attended both Pensacola Junior College and Stephens College in Columbia, Missouri. She did not obtain degrees following her high school education. Having grown up in a family in which the father was actively involved in the underground utility business, Merrie J. Lee had the occasion to make trips to job sites with her father, as a child, and has had that sort of acquaintenanceship with the underground utilities work in her adult life. Ms. Lee has obtained occupational contractor's licenses from Escambia and Santa Rosa Counties or caused that to be done. Ms. Lee is not intimately familiar with the field work aspects of the underground utilities business. She is more familiar with the attempt to gain business, negotiation of contracts, preparation and submission of bids, purchasing of goods, equipment and services, hiring and firing of employees and keeping financial and business records of the corporation and participating in decisions about the progress of work. Her strongest understanding of the underground utilities business relates to the financial and business record aspects. In the bid preparation by Merrie J. Lee Construction Company, this is joint effort involving Ms. Lee, Wayne Lee and Lee Brown. Lee Brown is also employed as an estimator at Utility Service Company in addition to his association with Merrie J. Lee Construction Company. Bid preparation at Utility Service Company is also a joint effort. In that circumstance at Utility Service Company, Ms. Lee checks suppliers by phone, and checks mathematical extensions of prices. Her participation in the bid process at Merrie J. Lee Construction Company, in its short history, having examined her explanation of that arrangement, does not appear to be significantly different than her role at Utility Service Company, with the exception that she is more interested in that process and continues to gain experience in this process with the passage of time. In any event, one could not say that Ms. Lee is a mainstay in the bid process within Merrie J. Lee Construction Company and she has conceded this point. Without the assistance of others Merrie J. Lee does not seem capable of making critical choices about the bidding at this time. In conjunction with the job foreman, Ms. Lee is involved in scheduling the sequence of construction work. Merrie J. Lee does not go to the job sites on a daily basis. She does visit on occasion. Her daily contacts are by phone in discussion with the foreman concerning progress of work and the need for further materials. She and the field supervisor are both involved in arranging delivery of materials to the job site. Wayne Lee is also involved in the ordering of supplies and materials for job sites. Ms. Lee in her testimony made some explanations about the type of equipment necessary to install underground utilities and gave some description of what function an underdrain pipe fulfills. In relying upon her father as a source of guidance, she has as a resource a man who is licensed by the State of Florida, Department of Professional Regulation as a certified plumbing contractor within the meaning of Subsection 48.105(3)(m) and 489.115, Florida Statutes. Mr. Lee also has a degree in civil engineering and is a registered professional engineer, a registered land surveyor in Florida, a certified Class C water treatment operator in Florida and a certified Class C wastewater treatment operator in Florida. All total he has 35 years of experience in underground utility construction. Her brother William Lee has been in the construction business since the time he was a young man and has considerable experience in the underground utility business. He has learned his business with extensive on-the-job training, training which Ms. Merrie J. Lee has not undergone. William Lee is a licensed plumbing contractor with the Florida Construction Industry Licensing Board. William V. Lee is being groomed to take over Utility Service Company from his father, Wayne E. Lee. At the time of the hearing, eight persons were employed by Merrie J. Lee Construction Company, in the sense of those who were on the payroll. These employees had been hired by Merrie J. Lee and her father. Among those persons was Greg Thorsen, the foreman of one of the jobs that the company was involved with. Calvin Talbert a pipe layer on that job and his helper, Clarence Davis. Another person in that crew referred to as a hooker, is Jeffrey Underwood. A further person in that crew, is Willie Smith, who works a compacting machine. Donnie Silcox is a foreman on the same job that Thorsen is associated with. His helper is Louis Schwent. Another helper on the job is Darren Watson. Kevin Dixon worked on this job, but was fired and replaced by Watson. In the firing Silcox had checked with Ms. Lee concerning the fact that Dixon was not performing adequately and Ms. Lee told Silcox that persons who would not work should not be left on the payroll and that Silcox should dismiss Dixon from his employment, which was done. Ms. Lee had hired Willie Smith, Jeffrey Underwood, Kevin Dixon, Gregg Thorsen, and Donnie Silcox among others. Greg Thorsen, Calvin Talbert, Clarence Davis, Willie Smith, Donnie Silcox and Louis Schwent had worked for Utility Service Company in the past. Given that the company has just begun, it does own a great deal of equipment. It has rented most equipment in order to fulfill its obligations under contract. One piece of equipment that is being purchased is a pickup truck, which it bought from Utility Service Company, based upon the agreement to pay the balance of a note owed on this truck which was in the amount of $4,000. This was a favorable arrangement for Petitioner. A considerable amount of the equipment that is being used has been rented at favorable rates from Utility Service Company. This would include a hydraulic excavator, a bulldozer, a rubber-tired backhoe and a front-end loader, whose operators were employees of Utility Service Company. Utility Service Company allows the Petitioner the free use of telephones and radios. Wayne E. Lee has loaned the corporation $1200, which is not an interest bearing loan. In addition the house in which Ms. Lee lives, belonging to Wayne E. Lee, stands as security for a $20,000 loan which Ms. Lee negotiated on behalf of Merrie J. Lee Construction Company. Wayne E. Lee cosigned the note. Ms. Lee is personally accountable for debts outstanding in the corporation and for her company's performance under jobs under contract. At the time this application for recognition as a minority business was made four persons had the ability to sign checks written by the corporation. They included Merrie J. Lee, William V. Lee, Wayne E. Lee and Lee Brown. Because of concerns expressed by the Respondent's employee in the review of this application, all individuals, other than Merrie J. Lee, have been removed as persons who have the authority to write checks on the business account of Merrie J. Lee Construction Company. During the pendency of the time in which persons other than Merrie J. Lee could have written checks, they did not. Merrie J. Lee Construction Company is not registered with the Construction Industry Licensing Board. The time devoted to Merrie J. Lee Construction Company by her brother and father is in the interest of assisting that company without the expectation of compensation. Wayne E. Lee interceded with the Chadbourne Company owner, to arrange for Merrie J. Lee Construction Company to act as a subcontractor in a job in which Merrie J. Lee Construction Company expects to be paid $495,000 under the terms of the contract. This arrangement between the Chadbourne Company and Merrie J. Lee Construction Company as brought about by the efforts of Wayne E. Lee, meant that Merrie J. Lee Construction Company would not have to provide a bond. This was vital to the interest of Merrie J. Lee Construction Company because it was not in a position to bond it in that amount. In addition to the $495,000 contract as a subcontractor to Edward M. Chadbourne, in work at the Pensacola, Florida, airport, Merrie J. Lee Construction Company has had three other jobs at the time of the hearing in this cause. The first job was for approximately $1,200 with Lost Bay Trading Company in which, after consultation with her father, Merrie J. Lee arranged for this work by consultation with the principals in the Lost Bay Trading Company. The second contract was for $24,000 of work at the University of West Florida. The third contract was for $54,800 with Panhandle Paving Company. Bonds were not required in these three contracts either. The application here was reviewed by Raymond Lawrence Bryant, an employee of the Department of General Services in the Minority Business Assistance Office. He concluded that Merrie J. Lee as the minority person within the corporation, did not control the management and daily operations of Merrie J. Lee Construction Company as envisioned by Section 288.703(2), Florida Statutes. He also expressed the opinion that the business was not currently performing a useful business function as defined by Section 287.0943(1), Florida Statutes. That position was modified with the advent of the four contracts which have been discussed. In essence, the idea of denying certification based upon the belief that the-company does not perform a useful business function has been withdrawn. In connection with the idea of lack of control, Bryant identified a number of criteria within Rule 13-8.005(3)(a)-(g), Florida Administrative Code as reasons for denial. This speaks to provisions that were in effect at the time of the submission of the application. A copy of the Bryant report related to this project may be found as Joint Exhibit number 2, admitted into evidence. His summarizing remarks were submitted on October 14, 1988. His suggestion of denial was followed up by correspondence of Carolyn Wilson-Newton, Minority Business Assistance Coordinator for the Department of General Services. This correspondence date is November 2, 1988 and describes the intent to deny the certification. Subsequently, the provisions at Rule 13-8.005(3)(a)-(g), Florida Administrative Code, were amended on November 17, 1988. On November 23, 1988 the Petitioner filed its petition requesting a formal hearing under Section 120.57(1), Florida Statutes to contest the denial of the application for Minority Business Enterprise certification. The case was then sent to the Division of Administrative Hearings and a hearing was conducted on the date set out before. The amendments to Rule 13-8.005(3)(a)-(g), Florida Administrative Code are refinements to the previous rules and are in keeping with incipient agency policy that had been developing before the advent of the changes to the rule.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: that a final order be entered which denies Petitioner's request for certification as a Minority Business Enterprise. DONE and ENTERED this 5th day of May, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 5th day of Mat, 1989. APPENDIX The following discussion is made of the proposed facts of the parties. Petitioner's Facts Paragraphs through 5 and the first two sentences to paragraph 6 are subordinate to facts found. The last sentence in paragraph 6 is contrary to facts found. Paragraph 7 is rejected to the extent that it creates the impression that Merrie J. Lee has sufficient understanding of the bidding and technical side of the business to be effectively in control of the management and daily operations of the corporation. Paragraphs 8 through 12 are subordinate to facts found. Paragraph 13 is subordinate to facts found with the exception of the second sentence which is contrary to facts found. Paragraph 14 is subordinate to facts found. Respondent's Facts Paragraphs 1 through 6 are subordinate to facts found as are all sentences in paragraph 7, excepting the last. The last sentence in paragraph 7 is unnecessary to the resolution of the dispute. Paragraphs 8 through 16 are subordinate to facts found. Paragraph 17 is unnecessary to the resolution of the dispute. Paragraphs 18 through 20 are subordinate to facts found. Paragraphs 21 through 23 are not necessary to the resolution of the dispute. COPIES FURNISHED: John C. Pelham, Esquire Pennington, Wilkinson, Dunlap and Camp 30375-A Capital Circle, N.E. Post Office Box 13527 Tallahassee, Florida 32317-3527 Stephen S. Mathues, Esquire Office of General Counsel Department of General Services Room 452, Larson Building Tallahassee, Florida 32399-0955 Ronald W. Thomas, Executive Director Department of General Services 133 Larson Building Tallahassee, Florida 32399-0955
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, on the testimony of the witnesses at the hearing, and on the deposition testimony received in evidence, I make the following findings of fact: On October 30, 1985, the Florida Department of Transportation ("FDOT") received and opened sealed bids on State Project Number 72270-3431, in Duval County, Florida. Five bids were submitted for this project. The lowest bid, in the amount of $6,235,948.35, was submitted by Hubbard Construction Company ("Hubbard"). The amounts of the other bids were as follows: the second low bidder, $6,490,796.91; the third low bidder, $6,519,447.90; the fourth low bidder, $7,470,941.74; and the fifth low bidder, $7,477,038.49. All bids submitted were more than seven per cent over FDOT's estimate of the project price. The two lowest bids also appeared to be unbalanced and, as set forth in more detail below, the Hubbard bid was in fact unbalanced in several particulars. It is FDOT policy to give special review to bids that are more than seven per cent above the estimated price of the project. All bidders were made aware of this policy by the following language on the first page of the Notice To Contractors: Bidders are hereby notified that all bids on any of the following projects are likely to be rejected if the lowest responsive bid received exceeds the engineer's estimate by more than seven per cent (7 percent). In the event any of the bids are rejected for this reason, the project may be deferred for readvertising for bids until such time that a more competitive situation exists. Upon review of the bids submitted on the subject project, FDOT decided to reject all bids. By notices dated December 6, 1985, all bidders were advised that all bids were rejected. The stated reasons for the rejection of all bids were as follows: All bids were too high; the apparent first and second low bidder's bids were unbalanced and the apparent first low bidder failed to meet the WBE Requirements. Hubbard submitted its formal written protest to the FDOT regarding the proposed rejection of its bid on the subject project on January 3, 1986. This protest was made pursuant to Section 120.53, Florida Statutes (1985), the instructions to bidders and bid information provided by the Department, and rules of the Department, including Rules 14-25.04 and 14-25.05, Florida Administrative Code. Unbalancing occurs when a contractor puts a higher price on a particular item of work in the project in anticipation of using more of that item than the FDOT has estimated will be required. Unbalancing can also occur when a lower than estimated price is placed upon a particular item. When a bid appears to be unbalanced, the bid is submitted to the Technical Awards and Contract Awards committees for review. In this case, the FDOT's preliminary estimate personnel discovered six items that were unbalanced within Hubbard's bid. The first item of concern was an asphalt base item for which the FDOT's estimate was $4.00 per square yard and the Hubbard bid was $19.29 per square yard. The second item was clearing and grubbing for which FD0T's estimate was $50,000 and Hubbard's bid was $200,000. The third item was removal of existing structures for which FDOT's estimate was $190,762 and Hubbard's bid was $38,000. The fourth item was installing new conductors for which FDOT's estimate was $251,000 and Hubbard's bid was $141,000. The fifth item was removal of existing pavement for which FDOT's estimate was $78,000 and Hubbard's bid was $153,000. Finally, the sixth item was surface asphalt items for which FDOT's estimate was $98,000 and Hubbard's bid was $169,000. The FDOT has a policy that any bid that is seven per cent or more over the estimate will go before the Awards Committee for review. Further, the FDOT has a policy that whenever the bids are more than seven per cent higher than the estimate, the FDOT's Bureau of Estimates will then review their estimate and the apparent low bidder's bid to determine whether the original estimate was correct. The FDOT maintains a Women's Business Enterprises ("WBE") program. The FDOT's program requires that successful bidders provide for participation of women owned and controlled business in FDOT contracts. The program is implemented by the setting of so-called "goals" for certain projects. The goal is stated as a percentage of the total dollar bid for each project. Thus, the WBE goal for a project requires that the bidder utilize FDOT certified WBE's in constructing the project to the extent that the FDOT's goal is a percentage of the total bid. The FDOT has implemented rules to effectuate its WBE program. Rule 14- 78, Florida Administrative Code (amended effective May 23, 1984). In submitting a bid, the rules offer the bidder the option of meeting the WBE goals or submitting proof of a good faith effort to meet the goal and if a good faith effort is sufficient, the FDOT may waive the goal. The FDOT's bid package and specifications, as furnished to contractors, in no place referred to the Department's rule providing that only 20 percent of the amount of subcontracts with WBE suppliers shall count toward the goals on Federal aid projects. The specifications clearly state that WBE suppliers may be counted toward the goals. The specifications as furnished by the Department also imply that the 20 percent rule applies only to non-federal aid jobs. The project in question in this case is a Federal aid project. There is a conflict between the rule and the language of the specifications which creates an ambiguity in the specifications, as well as a trap for the unwary bidder who overlooks the requirements of the rule. The FDOT is in the process of amending the specifications to make them conform to the rule. The Special Provisions contained within the bid specifications established certain minority participation goals for this project--ten per cent for Disadvantaged Business Enterprises (DBE) and three per cent for Women Business Enterprises (WBE). FDOT personnel analyzed the bid documents submitted by Hubbard according to the criteria set forth at Rule 14-78, Florida Administrative Code, and determined that Hubbard exceeded the DBE goal but failed to meet the WBE goal. Hubbard's WBE participation was two per cent. All other bidders on the project met both of the DBE and WBE goals. When Hubbard submitted its bid on this project, Hubbard thought that it had complied with the three per cent WBE goal by subcontracting 3.5 per cent of the contract price to WBE certified firms. However, 2 per cent of the contract price was to be subcontracted to a WBE for supplies to be furnished by a WBE who was not a manufacturer. Accordingly, when the 20 per cent rule discussed above was applied to that 2 per cent, the total amount of WBE participation which could be counted toward Hubbard's compliance with the rule was approximately 2 per cent, which was less than the 3 per cent goal. Once it was determined that Hubbard had failed to meet the WBE goal, FDOT personnel analyzed Hubbard's good faith efforts package pursuant to Rule 14-78, Florida Administrative Code. Hubbard's good faith efforts package failed to demonstrate that Hubbard had taken sufficient action in seeking WBE's to excuse its failure to meet the WBE goal for this project. Similarly, Hubbard's evidence at the hearing in this case was insufficient to demonstrate that Hubbard had taken sufficient action in seeking WBE's to excuse its failure to meet the WBE goal for this project. Most telling in this regard is that all four of the other bidders on this project were successful in meeting or exceeding the DBE and WBE goals.
Recommendation For all of the foregoing reasons, it is recommended that the Florida Department of Transportation issue a Final Order rejecting all bids on Federal Aid Project No. ACIR-10-5 (76) 358 (Job No. 72270-3431). DONE AND ORDERED this 24th day of March 1986, at Tallahassee, Florida. MICHAEL M. PARRISH 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 24th day of March 1986. APPENDIX TO RECOMMENDED ORDER IN DOAH CASE NO. 86-0O24BID The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. Rulings on findings proposed by the Petitioner, Hubbard Construction Company The substance of the findings of fact proposed by the Petitioner in the following paragraphs of its proposed findings have been accepted and incorporated into the findings of fact in this Recommended Order: 1, 2, 3, 4, 5, and 8. The substance of the first sentence of paragraph 6 is accepted. The remainder of paragraph 6 is rejected as an unintelligible incomplete statement. Paragraph 7 is rejected as not supported by competent substantial evidence. (The Standard Specifications for Road and Bridge Construction were not offered in evidence.) Paragraph 9 is rejected for a number of reasons, including not being supported by competent substantial evidence, being to a large part irrelevant, being predicated in part on an erroneous notion of which party bears the burden of proof, and constituting in part legal argument rather than proposed findings of fact. The first and third sentences of paragraph 10 are accepted in substance. The second and fourth sentences of paragraph 10 are rejected as irrelevant. The last sentence of paragraph 10 is rejected as irrelevant and as not supported by competent substantial evidence. Paragraph 11 is rejected as irrelevant and as including speculations which are not warranted by the evidence. Paragraph 12 is rejected as irrelevant and as including speculations which are not warranted by the evidence. Paragraph 13 is rejected as not supported by competent substantial evidence and as being contrary to the greater weight of the evidence. Rulings on findings proposed by the Respondent, Department of Transportation The substance of the findings of fact proposed by the Respondent in the following paragraphs of its proposed findings have been accepted and incorporated into the findings of fact in this Recommended Order: 1, 2, 3, 4, 5, 6, 7, and 8. Paragraph 9 is rejected as irrelevant. COPIES FURNISHED: John E. Beck, Esquire 1026 East Park Avenue Tallahassee, Florida 32301 Larry D. Scott, Esquire Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301-8064 Thomas Drawdy, Secretary Department of Transportation Mail Station 57 605 Suwannee Street Tallahassee, Florida 32301-8064
The Issue Whether Respondent's proposed award of a contract to Intervenor is contrary to statutes, rules, policies, or the bid specifications, pursuant to Section 120.57(3)(f), Florida Statutes.
Findings Of Fact On January 14, 2003, Respondent advertised for bids by way of an invitation to bid (ITB) for Contract Number E3C42, Maintenance Financial Project Number 40952917201. This would be a "Push Button" contract for the replacement of damaged guardrails along various roadways in Okaloosa and Walton Counties. Pursuant to this Contract, the successful bidder would respond upon notice, and repair or replace guardrails, or take other measures to ensure safety of the traveling public. The bid solicitation and contract were issued pursuant to Section 337.11, Florida Statutes. All bidders had to certify compliance with Florida Statutes and other applicable law, and all contractors were held to strict compliance with all legal requirements. There were no protests to the terms and conditions of the bid solicitation. The instant challenge does not allege non-compliance with the statutes or terms of the ITB generally. The challenge is whether award of the bid to Intervenor, as a non-profit corporation, is "contrary to competition." This maintenance contract does not require that the contractor be pre-qualified pursuant to Section 334.14, Florida Statutes, and Rule Chapter 14-22, Florida Administrative Code. Four bidders responded to the solicitation, with the apparent low bidder being Intervenor, and the apparent second low bidder being Petitioner. Respondent posted its intended award of the contract to Intervenor, and Petitioner timely filed a protest that initiated this proceeding. Intervenor is a not-for-profit corporation created under the provisions of Chapter 617, Florida Statutes. As such, pursuant to Sections 617.0301 and 617.2001, Florida Statutes, Intervenor can engage in any lawful purpose not for pecuniary profit. As a not-for-profit corporation, Intervenor may receive certain tax breaks and other economic advantages not enjoyed by a for-profit corporation. Petitioner is a for-profit corporation. No evidence exists that Intervenor is not capable and responsible to perform the work. Intervenor is qualified to contract with Respondent for the performance of work related to the construction and maintenance of transportation-related facilities by youths enrolled in youth work experience programs, pursuant to Section 334.351, Florida Statutes. Respondent spends appropriations under this section, and Intervenor is the recipient of such contracts. However, the instant contract will not be let under Section 334.351, Florida Statutes, but pursuant to Section 337.11, Florida Statutes.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the protest filed by Petitioner be dismissed and Respondent shall award the subject contract to Intervenor. DONE AND ENTERED this 24th day of July, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 24th day of July, 2003. COPIES FURNISHED: John C. Bottcher, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Brant Hargrove, Esquire Law Office of Brant Hargrove 2984 Wellington Circle, West Tallahassee, Florida 32308 Timothy Patrick Driscoll, Esquire Timothy Patrick Driscoll, P.A. 101 First Avenue South, Suite 340 St. Petersburg, Florida 33701 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
