Findings Of Fact At all times relevant hereto, David E. Rabren was licensed as a Tampa Bay state pilot and was president of the Tricounty Pilot's Association (TRICO). At the time the movement of the OCEAN LORD occurred, there was only one state licensed pilot who was a member of TRICO. That was David E. Rabren. Other members held only federally issued pilot's licenses. Prior to the movement of the VOMAR, a second state licensed pilot joined TRICO. At present, there are four licensed state pilots and one deputy pilot associated with TRICO. The vessel OCEAN LORD arrived in Tampa Bay February 18, 1986, and was piloted by Captain Rabren to its berth at C. F. Industries (CFI). After taking on cargo, the OCEAN LORD was moved the same date to Gadsden Anchorage. During this move, Captain Murphy, a federally licensed, but not state licensed, pilot was on board. Captain Murphy is associated with TRICO. On February 21, 1986, the OCEAN LORD was moved from Gadsden Anchorage to the CSX Transportation dock at Rockport. Again, Captain Murphy was the pilot. On September 21, 1986, the vessel VOMAR was moved from Rockport to a dock at Big Bend with Captain Murphy as the pilot. Anita Rabren determined that the movement could be accomplished with a federally licensed pilot on board. On October 5, 1986, the vessel ASPEN, an American flag vessel, arrived at Tampa Bay, and the ship's agent requested TRICO provide a pilot. Due to a misunderstanding of the agent's statement that the ASPEN was coming from the west coast, Anita Rabren assumed this was from the west coast of the United States. Actually, the ASPEN's last port of call was in Korea. Had the vessel come from a west coast of the United States port, the voyage would have been a coastwise trip, and a federally licensed pilot would be required. A federally licensed pilot was assigned to pilot the ASPEN. The last port of call of the ASPEN was ascertained after the pilotages up Tampa Bay commenced, and the fact that an improperly licensed pilot was used was reported forthwith. TRICO paid a double pilot fee to the Tampa Bay Pilot's Association. Tampa Port Authority has jurisdiction over all of Hillsborough County and establishes rules and regulations for that area. They do not regulate pilotage of vessels. Many of the terminals in Hillsborough County are owned by the Port Authority, but some are privately owned such as Big Bend and Rockport, both of which are in the port of Tampa. The Port Authority controls the allocation of berths at all terminals owned by the Port Authority, but does not control the berths at privately owned terminals. The CFI terminal is owned by the Port Authority who establishes wharfage rates and docking rates at this terminal. The berths at Rockport and Big Bend are privately owned, and tariff rates are not set by the Port Authority. CSX Transportation owns a dock at Rockport where phosphate is loaded onto vessels. No wharfage or dockage charge is levied, but such charges are included in charges for the commodity loaded. Ships can clear customs at any of the terminals above noted. The Big Bend facility is under the jurisdiction of Gulf Coast Transit Company. Vessels bring coal to Big Bend for use by Tampa Electric Company. The AGRICO terminal at Big Bend is used for loading phosphate rock. All of these privately owned terminals are licensed by the Tampa Port Authority to whom they pay a fee and submit reports of their activities. The Tampa Port Authority charges a fee to vessels who load or unload cargo at the Gadsden Anchorage which is also in the port of Tampa. Section 310.002(4), Florida Statutes, defines "port" to mean, any place in the state in which vessels enter and depart. For Tampa Bay, this section lists Tampa, Port Tampa, Port Manatee, St. Petersburg and Clearwater as ports. Of those listed ports, Tampa and Port Tampa are in Hillsborough County and come under the jurisdiction of the Tampa Port Authority. No evidence was submitted showing the areas encompassed by the Port of Tampa and Port Tampa. The Port of Tampa's Terminal and Facilities Map (Exhibit 5) showing the port facilities at Tampa, Florida, does not show the facilities at Port Tampa; it shows only those facilities on the east side of the Tampa peninsula, and does not reach as far south as Big Bend. Presumably, if there are only two ports in Hillsborough County that portion of Hillsborough County west of the Tampa peninsula would comprise Port Tampa, and that portion of Hillsborough County east and south of the Tampa peninsula would comprise the Port of Tampa. If so, all of the movements here complained of occurred in the Port of Tampa. Exhibit 5 supports this conclusion. Finally, no credible evidence was presented that Respondent assigned a federally licensed, but not a state licensed, pilot to the OCEAN LORD, VOMAR and ASPEN as alleged, except Exhibit 3 which states the assignment of a federally licensed pilot to the Aspen was due to an error on the part of Captain Rabren. The direct testimony presented in this regard is that Anita Rabren assigned federally licensed pilots to those ships. Further, this determination that use of a federally licensed pilot for those movements of foreign flag vessels within the Port of Tampa was proper was made by Anita Rabren after receiving legal advice regarding the in-port movements of foreign flag vessels that can be piloted by a federally licensed pilot.
Findings Of Fact At all times relevant hereto, respondent, George E. Feld, held certified general contractor license number CG C021801 issued by petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. Feld has been a licensed contractor in Florida since June 1982. He has qualified George E. Feld and Associates, Inc. under his license and operates the business at 2131 Northeast 205th Street, North Miami Beach, Florida. After submitting the low bid, on or about March 1, 1985 George Feld and Associates, Inc. entered into a contract with the City of Tamarac to construct a 5,500 square foot recreation building for the City. The negotiated contract price was $195,950. The contract called for commencement of the project within ten days after the contract was signed and completion by July 27, 1985. Sometime prior to March 20, 1985, Feld met one David P. McCall and Marvin Weiss at a motel in North Miami. McCall was interested in doing work on the Tamarac project. He gave Feld a business card with the name "Arrow Head Development Corporation, Inc." printed on it, and which stated the firm was "state certified" and "licensed" as a general contractor. Feld also noted that Weiss held a general contractor's license, and he assumed that McCall and Weiss were working together. Relying on McCall's card, and later representations by McCall, but without checking with petitioner's office to verify if McCall or Arrow Head were licensed or qualified, Feld agreed to subcontract out the shell and sewer work on the Tamarac project to Arrow Head. To this end, Feld and Arrow Head entered into two contracts on March 20, 1985, for Arrow Head to perform the shell and sewer work. On June 21, 1985 McCall submitted a written "proposal" to Feld for the shell work on the job. The proposal had the following words and numbers typed on its face: "State License Number: #CGC 05961." It was not disclosed whose license number this was. Although McCall denied typing this document (because he does not personally know how to type), he did not deny that it was placed on the document at his direction or with his knowledge. It was not until sometime later that Feld learned that Arrow Head was not qualified by any licensee. Because of his mistaken belief that Arrow Head was qualified, Feld had never qualified that firm. Even so, there was no evidence that Feld intended to allow an unqualified firm to perform the work. Work proceeded on a timely basis as required by the contract. Feld visited the job site daily, and supervised all activities, including those performed by McCall. He routinely inspected the work, verified that it was being done according to specifications, and made corrections where needed. The job specifications called for trusses that were over forty feet in length. Because of this, and pursuant to the South Florida Building Code (Code), it was necessary for the City to hire an engineer to oversee their installation. The City hired one George Fink as engineer to supervise this phase of the project. However, Fink's responsibility was limited to just that, and once the installation was completed, Feld resumed responsibility for the remainder of the job. Trusses are a manufactured roof member and may vary in length, height and pitch. In this case, they were designed in the form of a cathedral roof, and were in excess of forty-seven feet in length. Further, because of the building's design, there were a number of trusses to be installed. The installation of the trusses was begun around 9:00 a.m. on Friday, June 27, 1985 and finished by 2:00 p.m. that same day. As required by the Code, Fink was present and supervised the installation of the trusses on the top of the shell. He confirmed at hearing that they were properly installed. The problem herein arose early that day when Fink had noticed that the building plans did not provide for lateral bracing of the trusses. However, according to Fink, this was not unusual since plans do not normally provide for lateral bracing. Even so, Fink told an unnamed person who "appeared to be the fellow running the erection crew" that lateral bracing should be added to the center and two side core members and that the four trusses on each end needed additional bracing. Fink also suggested to this unnamed individual that sheathing be added "as soon as possible" to the top and outside of the trusses to give added stability and protect them from wind damage and the like. In this regard, at hearing Fink conceded that it was "reasonable" for a contractor to erect trusses one day, and to place sheathing on them the following work day. Fink thought sheathing to be particularly necessary on this job since the trusses were high pitched," "long in length," and there were "no gables or anything in between to ... add any other support." By the end of the work day, the crew had placed the proper bracing on the trusses. However, no sheathing was applied. According to Fink, who was accepted as an expert in this proceeding, a prudent and competent contractor would be aware of the need for sheathing and added bracing because of the potential hazard of high winds caused by late afternoon thunderstorms in South Florida. By failing to place sheathing on the roof, Fink opined that Feld was grossly negligent and incompetent in the practice of construction on the Tamarac project. Sometime on late Sunday night or early Monday morning, most of the trusses on the roof collapsed. Some fell on an electrical wire running to the building. However, no injuries occurred. Only five trusses on the north side of the building remained in place. The City of Tamarac then filed a complaint with petitioner against Feld. The cause of the collapse was not disclosed, and even Fink was unable to state that the lack of sheathing was the cause of the accident. There was no evidence that strong winds or thunderstorms occurred on the night the trusses fell, or that bad weather was predicted when the work day ended on Friday afternoon. Feld acknowledged that no sheathing was placed on the trusses. He attributed this to the fact that the construction crew stopped work at 3:30 on Friday afternoon, and did not return to the job site until the following Monday morning. He intended to install the sheathing the following Monday but by then it was too late. This was in accord with the standard enunciated by Fink that it was not unreasonable for a contractor to erect trusses one day, and to place sheathing on them the following work day. Feld also stated that he was well aware of the need for bracing and sheathing on trusses by virtue of his long experience in the construction business. Feld hinted, but did not prove, that McCall may have been responsible for the accident because of bad blood between the two. In any event, he doubted that wind would have caused the trusses in question to fall. Finally, Feld pointed out that, even though city inspectors were present, no one had come to him on Friday afternoon and said the trusses might collapse over the weekend without sheathing. Feld is a graduate of the University of Buenos Aires with a degree in architecture, and has been engaged in the construction/architecture business for twenty-two years. He presently is an instructor of construction at Miami-Dade Community College. There is no evidence he has ever been the subject of a disciplinary action by the Board on any other occasion.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint against George E. Feld be DISMISSED, with prejudice. DONE AND ORDERED this 9th day of April, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 9th day of April, 1987.
The Issue Whether petitioner's application for a Class "G" license, statewide gun permit, should be granted.
Findings Of Fact The parties stipulated that petitioner's application for a Class G" statewide gun permit was properly filed with the Department of State, Division of Licensing. The application was not entered into evidence; however, the parties stipulated that the only bases for the denial of the license were those stated in the letter of February 16, 1987. On April 7, 1969, petitioner was adjudicated guilty of the offenses of breaking and entering an automobile and petty larceny. Petitioner was placed on probation for a period of five years. On April 16, 1987, petitioner entered a plea of nolo contendere to the offense of battery and was placed on probation for a period of six months. Respondent testified that between 1969 and 1974, while he was on probation, he tried to get his civil rights restored but that he has never been able to determine the status of his civil rights. Petitioner presented no evidence establishing that his civil rights had been restored. No evidence was presented at this hearing regarding the factual circumstances surrounding petitioner's arrest and conviction for breaking and entering an automobile. In his proposed findings of fact, petitioner describes facts from a document he describes as "listed as Item 4, Case Number 85-67 in a hearing held in 1985 on file with the Division of Administrative Hearings." However, no evidence regarding the breaking and entering conviction was submitted at this hearing, and a document submitted during the course of some prior hearing cannot be used to establish factual findings in this proceeding. Petitioner is the owner of Sun Coast Securities, Inc. His company provides security for major events needing crowd control, and a primary employer is the Florida State Fairgrounds. Petitioner has a Class "D" license and an agency license. On the night of October 31, 1986, petitioner was hired by the owner of Yesterday's Lounge to provide security at a Halloween party. Samuel Valez was one of the customers at the Halloween party. The Halloween party was supposed to start at about 9:00 p.m. However, Mr. Valez and a few of his friends got to the bar about 7:00 or 7:30 p.m. Mr. Valez had several drinks during the course of the evening. At some time after 10:00 p.m., Mr. Valez got into a dispute with a bartender. Petitioner thought he saw Mr. Valez take a swing at the bartender. However, Ms. Spalding, who was sitting at the bar, did not see any incident with the bartender. Ms. Ryan observed the dispute with the bartender and stated that Mr. Valez did not hit anyone but was having a disagreement over the service of the drinks. In any event, Mr. Valez was asked to leave the premises by the owner. Mr. Valez was intoxicated. Petitioner and the owner escorted Mr. Valez outside. After they got outside, petitioner and Mr. Valez exchanged a few words. Petitioner pushed Mr. Valez and then hit him in the face. Ms. Imschweiler, Ms. Spalding, and Ms. Ryan all observed the incident. None of the three saw Valez attempt to hit anyone, either petitioner or the owner of the lounge. Ms. Ryan testified that petitioner hit Valez more than once. After Mr. Valez had fallen, petitioner grabbed Valez by his ankle and dragged him across the parking lot ground. Mr. Valez kept stating he didn't want to fight, but every time he tried to get up petitioner pushed him to the ground again. Mr. Valez was bleeding. Ms. Ryan described Valez as having been beaten to a pulp. Petitioner contended that he was merely protecting the owner, that Mr. Valez had taken a swing at the owner, and that petitioner grabbed Valez' arm to prevent the owner from being hit. He also testified that Mr. Valez tried to hit him, and he hit Mr. Valez in self-defense. However, none of the witnesses saw Mr. Valez swing at anyone. The witnesses characterized petitioner's attack on Mr. Valez as unprovoked. Petitioner is 5'10" and weighs 300 pounds. Petitioner does power lifting and holds state and national records. He can squat lift 830 pounds. Mr. Valez is approximately 5'7" tall and weighs about 140 pounds. As a result of the altercation with Mr. Valez, petitioner was arrested and charged with aggravated battery. Petitioner ultimately pleaded nolo contendere to simple battery. The evidence presented at the hearing established that petitioner's attack on Mr. Valez was not in self-defense or in the defense of his client.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's application for a Class "G" license. DONE AND ORDERED this 1st day of August, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1988.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner has been discriminated against by being denied adequate training and being dismissed from her employment for reasons of her race (African-American).
Findings Of Fact The Florida Gulf Coast University (Gulf Coast) operated in Tallahassee, Florida at times pertinent hereto, for the purpose of improving teaching and learning in the area of environmental education in the public schools as well as community colleges and universities. Dr. Kathleen Shea Abrams served as the Director of the Office of Environmental Education (OEE) from October 1990 until the office closed in July of 2000. She was responsible for making OEE employment decisions in conformance with Gulf Coast's hiring approval procedures. Dr. Abrams, as Director, was responsible for organizing a hiring committee and interviewing candidates for the vacant office assistant position. With approval from Gulf Coast and the hiring committee Dr. Abrams selected Synthia Dianne Mallard, the Petitioner, for the position on August 14, 1996. Pursuant to the position description for the office assistant position, Ms. Mallard would be required to prepare routine correspondence, reports, requisitions, invoices, travel documents, etcetera, as well as answer the telephone and provide information for routine questions and make referrals as appropriate. She was required to screen calls and perform other assigned duties and was required to possess the knowledge, skills and ability to produce grammatically correct, oral and written work products. Following her employment, Ms. Mallard was provided with information regarding OEE telephone procedures. The written procedural guidelines expressly set forth the information to be obtained when taking a message. Dr. Abrams requested Tara Johnson, an African-American student clerical assistant who was working for the OEE, to provide training to Ms. Mallard. Training was based upon the office procedural manual which outlined requirements for completing university forms, described the mail pick-up and delivery process, discussed operation of the office telephone systems and other relevant matters. Dr. Abrams also met with Ms. Mallard several times a week for five to ten minutes or more to communicate work requests and provide brief written instructions and information to her. During these meetings Dr. Abrams recommended several times that Ms. Mallard review portions of the procedural manual and refer to it as she carried out her work. At the time that Ms. Mallard joined the OEE, a set of computer-generated address labels were available to be affixed to envelopes for daily courier pick-up and delivery to Gulf Coast. As the supply ran low, Dr. Abrams requested that Ms. Mallard print new ones. Since Ms. Mallard explained that she did not know how to print labels, Dr. Abrams allowed her to write labels by hand. The handwritten labels printed by Ms. Mallard, however, did not follow the same format as the computer-printed ones and improperly included the office's return address. As a result an envelope was returned to the office by courier who misread the return address as the primary address. Dr. Abrams instructed Ms. Mallard to omit the return address thereafter and wrote a sample label for Ms. Mallard to follow. Despite these efforts, Dr. Abrams was forced to speak to Ms. Mallard on several additional occasions about this subject as she continued to improperly address the mail. In preparing correspondence, Dr. Abrams would write out letters long-hand and deliver these to Ms. Mallard for typing. Through this process, Dr. Abrams discovered that Ms. Mallard was unfamiliar with the proper format for business letters or memoranda. After returning several drafts of letters because of errors in spacing, margins, and capitalization, Dr. Abrams advised Ms. Mallard to refer to examples of business letters from existing files and use them as models. Ms. Mallard required additional instruction on how to use the office typewriter. Dr. Abrams stated to Ms. Mallard at one point that she appeared to have over-estimated her clerical skills and computer training. She asked Ms. Mallard to establish a weekly goal of mastering one new skill a week. In order to achieve this goal, Ms. Mallard received computer instructions from Tara Johnson and other staff members including Dr. Robert Raze. Ms. Mallard cautioned Dr. Abrams, however, that the expectation "to master" the skills might be too high. As part of her duties, Ms. Mallard was asked to inventory and organize an office supply cabinet consisting of four shelves of supplies. Although Dr. Abrams estimated that the task should take a maximum of three to four hours to complete, Ms. Mallard did not finish the job until several weeks later. After several weeks, Dr. Abrams arrived at the conclusion that Ms. Mallard lacked important secretarial skills and would be unable to consistently produce a quality work product. Determining that Ms. Mallard would be unable to elevate her skills to an acceptable level, Dr. Abrams requested Ms. Mallard's termination as an employee by correspondence dated December 2, 1996. In addition to the performance deficiencies that Dr. Abrams observed personally, she also received complaints concerning the Petitioner's performance from other employees. Dr. Raze was hired by Dr. Abrams in 1991, and served as a "Coordinator," a senior professional position at the OEE. Dr. Raze experienced difficulty in receiving complete and accurate telephone messages from the Petitioner. Dr. Raze advised Dr. Abrams that Ms. Mallard had failed to obtain basic information such as the complete correct name of the individual calling, the entity which the individual represented, the purpose of the call and the return phone number on certain messages. Shannon Guillemette, another employee, reported an incident where she missed an important return telephone call because of Ms. Mallard's failure to answer incoming office telephone calls in accordance with her job description. Ms. Guillemette advised that similar incidents occurred in the past as well. These complaints were received by Dr. Abrams in the ordinary course of business as the Director of the office. The Petitioner prepared correspondence dated December 11, 1996, to Steven Belcher, Director of Human Resources at Gulf Coast in response to the letter from Dr. Abrams requesting her termination. The Petitioner's, correspondence in response to the termination letter itself contained numerous errors in grammar, spelling and punctuation, which were consistent with the deficiencies earlier identified by Dr. Abrams in the Petitioner's job performance. In December of 1996, the Petitioner was terminated from her employment position. The Respondent, through its witnesses and exhibits, has established that legitimate business reasons existed for that termination. The proven reason for Ms. Mallard's termination from employment was "poor job performance." When Ms. Mallard was terminated from the OEE, the office employed a total of nine individuals. Five of those individuals were African-American and four were non-minority. The Petitioner, Ms. Mallard, is an African-American and so is Dr. Raze. Dr. Abrams is a non-minority and is responsible for the decision to both offer employment and to hire Ms. Mallard as well as the decision to terminate her. Dr. Raze observed no instances of racial discrimination in the operation of the OEE from the time he was first hired in September 1991 through the closing of the office in July of 2000. The Petitioner failed to introduce any testimony or evidence corroborating her charge of racial discrimination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations determining that the Petition for Relief filed by Synthia Dianne Mallard be denied and that this cause be dismissed. DONE AND ENTERED this 2nd day of February, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 2nd day of February, 2001. COPIES FURNISHED: Synthia Dianne Mallard 1205 West 6th Street, Apartment 2 Jacksonville, Florida 32209 Robert C. Shearman, Esquire Henderson, Franklin, Starnes & Holt Post office Box 280 Fort Myers, Florida 33902 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi Coleman, Acting Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in this proceeding is whether the Respondent’s award of a security guard services contract to Intervenor is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact On October 8, 2008, Respondent, DMA, issued a Request for Proposals, RFP No. DMA-RFP-112, entitled “Security Guard Service.” The purpose of the RFP was to solicit bids for providing security services at five National Guard locations around Florida. The term of the contract was for five years. Part (a) of Section 1.2 of the RFP defines a valid proposal as a responsive offer where “a person or firm has submitted a bid/proposal and conforms in all material respects to the Request for Proposal.” Part (b) of section 1.2 defines a responsible or qualified offeror as a “person or firm with the capability to perform the requirements and the integrity and reliability to assure good faith performance.” Section 4.5 of the RFP governs “Bid Questions and Answers.” In particular, Section 4.5 states in part: Any technical questions arising from this RFP must be forwarded, in writing, to the procurement official designated in section 1.2 or 1.4 above. Section 4.7.1 of the RFP states: The Vendor must prove to the satisfaction of the Agency that their company has actively and normally been engaged in business for the services/items being procured under this solicitation for at least three (3) years of continuous operation. (This shall be demonstrated through references which have been in place at least one (1) continuous year). The Bidder shall have available under their direct supervision, the necessary organization, experience, equipment and staff to properly fulfill all the conditions, requirements, and specifications required under this solicitation. Section 4.8 of the RFP specifies DMA’s reservations and outlines how the proposals are evaluated in terms of responsiveness. In particular, Section 4.8.1 reserves the right of DMA to accept or reject any proposal. Section 4.8.2 defines a responsive proposal or bid as one that offers to perform the services called for by the RFP and meets the requirements of the RFP. Section 6.2 of the RFP delineates the Evaluation Criteria for scoring the proposals. Section 6.2 states: DMA will evaluate responsive replies and score them on a scale of 1 to 100 using the following criteria (weight noted parenthetically). DMA anticipates awarding one Contract to the responsive and responsible [sic] criteria which will be used to evaluate proposals: Qualifications: 70% 70 Points Price: 30% 30 Points Total: 100% 100 Points In order to demonstrate that a bidder was qualified in providing the services required by the RFP, DMA required references to be provided by the prospective bidders. Section of the RFP states: 6.2.1 Qualifications: The Vendor’s qualifications and experience in successfully serving facilities of similar size and scope to those required by this solicitation, as indicated by (Maximum 70 points – Attachment B –references (6 points) will be included in this maximum point total): Experience: Age of the Company, qualifications of key personal, extent of the vendor’s activities, locations of the Vendor’s Florida office(s) and nearest Florida account, and current and past project references. (0-24 Points) Preference for vendors that have considerable and quantifiable experience in providing similar services to governmental entities. (0-5 Points) Preference for companies with a proven ability to effectively manage multiple sites. Vendors should provide relevant experience data and references. References may be the same as those provided on Attachment B, if so; a statement to that effect should be added. (0-5 Points) Section 6.4 of the RFP states: Reference Sheet: Vendors shall provide at least three current references. Note 6 points (2 points for each reference) of the proposal points are applied from this category. During the evaluation process all companies will receive the maximum points until references are verified, at such time the points may be reduced. (Attachment B.) Attachment B to the RFP provides for the listing of three separate and verifiable references. The instructions for filling out Attachment B state, in part, the following: The Respondent must list a minimum of three (3) separate and verifiable clients of the Respondent, other than the DMA which have been in place for at least one (1) continuous year. Any information not submitted on this attachment shall not be considered. The clients listed shall be for services similar in nature to that described in this solicitation. Attachment B requires prospective bidders to list contact information for the bidder’s references so that the references could be verified at the appropriate time. The requested information includes the name of the company or entity that the contract was with, description of work, the beginning dates of the contracts and, importantly, the ending dates of the contracts. Attachment B does not include the use of the word “current” or “active” in its description of the type of references that a bidder should submit. Rannah Lewis is the Grant Specialist for the Department of Military Affairs. As such, she participates and manages bid solicitations for DMA. She has performed these duties for four or five years. In this case, Ms. Lewis was the person responsible for assembling the RFP and the person responsible for the use of the word “current” in this RFP. Her use of the word “current” referred to a recent contract that could be verified with respect to similarities between the referenced contract and the services being solicited by DMA. She distinguished a “current” contract from an “active” contract and specifically did not require the contract to be active. Indeed, Ms. Lewis’s purpose for including the starting and ending dates for contracts listed in Attachment B of the RFP was to aid her in identifying the contractor to the referent when she verified the bidder’s references. In the past she had sometimes encountered difficulty in verifying a bidder’s references because the contractee did not remember the contractor from the information Ms. Lewis had regarding the referenced contract. She also wanted to obtain references that demonstrated experience in providing services required in the RFP that were verifiable over the course of time. Ms. Lewis testified: We wanted them to demonstrate it had been a continuous process of at least a year so that when I called the reference, if they use them as a reference, they said – Well I’ve had this experience – personally, I’ve had this experience where I called a reference, and they go, well, they just started two weeks ago, so we really don’t know. And that was the intent, to avoid situations like that. There was no evidence presented at the hearing that demonstrated DMA’s use of the word “current” as meaning recent or relevant to the RFP was inaccurate or unreasonable. Eleven bids were submitted in response to the RFP. First Coast’s bid price was $17.42. Wackenhut’s bid price was $19.40. The bids were the third and fourth lowest bids, respectively. None of the bidders raised any questions regarding the meaning of the word “current” in the RFP. Eight out of the eleven bidders for the RFP listed contracts on Attachment B that were not active and had ended or expired. All of Wackenhut’s listed contracts were active. First Coast listed three references on Attachment B. Two of the references were active and are not at issue here. However, First Coast also listed the U.S Government – Department of the Navy as a reference and reflected the service dates for the contract as June 2001 through December 2006. The bids were evaluated by a three-person committee selected by the DMA. The Evaluation committee was directed by Ms. Rannah Lewis. The other members of the evaluation committee were Major John Gross and Joseph Beilawaski. Major Gross and Mr. Beilawski were selected because of their experience with regard to force protection and security. Each evaluator evaluated the bids independently of the other evaluators. Ms. Lewis awarded six points to First Coast for the three references it listed in Attachment B. She also awarded six points to Wackenhut for the three references it listed in Attachment B. She felt that a bidder’s references were current if the contract had been active within the past seven years. She chose seven years because, in her experience, most businesses retain records for at least seven years and could therefore, find and supply relevant information on the referenced contract. There was no evidence that Ms. Lewis was either arbitrary or capricious in her individual evaluation of the parties’ RFP proposals. Similarly, there was no evidence that Ms. Lewis’ evaluation was dishonest, contrary to competition, or otherwise impaired the competitive bidding process. Mr. Bielawaski awarded six points to all of the bidders for the references they listed on Attachment B. He believed that references in the recent past met the currency requirement of the RFP since the contracts referred to recent customers that provided services similar to that which was requested in the RFP. As with Ms. Lewis, there was no evidence that Mr. Bielawaski was either arbitrary or capricious in his individual evaluation of the parties’ RFP proposals. Similarly, there was no evidence that Mr. Bielawaski’s evaluation was dishonest, contrary to competition, or otherwise impaired the competitive bidding process. Major Gross determined that First Coast’s bid “complied with all material provisions” of the RFP. Major Gross thought that a contract that had been in place within the last three or four years would be “current,” even though that contract was not presently active. He awarded five points to First Coast and six points to Wackenhut based on the two companies’ respective references listed in Attachment B. Major Gross determined that the references provided by First Coast were current and that one was not active. He, therefore, deducted one point from First Coast’s score because of the inactive reference. However, Major Gross also testified that he was “probably in error” in deducting one point from First Coast based on the provision of Section 6.4, which required the award of two points for each reference that he “perceived as being current and appropriate to this bid proposal.” Indeed, Major Gross’ error worked against First Coast in winning the RFP since the error resulted in less points being awarded to First Coast and, thereby, advantaging Wackenhut. However, even with Major Gross’ error, there was no evidence that Major Gross was either arbitrary or capricious in his individual evaluation of the parties’ RFP proposals. Likewise, there was no evidence that Major Gross’ evaluation was dishonest, contrary to competition, or otherwise impaired the competitive bidding process. At the conclusion of the evaluations, the evaluators turned in their score sheets and notes to Ms. Lewis. The total scores for the three evaluators were averaged for a final score on each bidder’s proposal. First Coast received a total score of 91 points. Wackenhut received a total score of 90 points. First Coast was determined to be the bidder with the highest score. Ms. Lewis then verified First Coast’s three references. First Coast’s score remained unchanged since all three references were verified. Based on the scores First Coast was awarded the RFP by DMA. As indicated, the evidence did not demonstrate that the evaluators or DMA acted dishonestly, arbitrarily or capriciously. Indeed, each evaluator reviewed each proposal using consistent criteria that he or she used for all the proposals reviewed by that evaluator. In this case, the differences in the amount of time used to define the parameters of what constituted a current reference were immaterial. Both parties’ references fell well within all the evaluators’ time frames. Likewise, the evidence did not demonstrate that DMA’s definition of the word “current” was so unusual so as to cause the evaluation of the parties’ proposals to be arbitrary, capricious, or otherwise contrary to competition. No bidder received an advantage over another bidder based on DMA’s definition of the word “current.” Given these facts, the award of the RFP to First Coast was valid and should be upheld.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Department of Military Affairs enter a final order approving the award of RFP No. DMA-RFP-112 to First Coast Security. DONE AND ENTERED this 1st day of May, 2009, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2009. COPIES FURNISHED: Bradley R. Johnson, Esquire Taylor, Day, Currie, Boyd & Johnson Bank of America Tower 50 North Laura Street, Suite 3500 Jacksonville, Florida 32202 Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Elizabeth C. Masters, Lieutenant Colonel Florida National Guard Post Office Box 1008 St. Augustine, Florida 32085-1008 Andrew K. Kantor, Esquire 800 West Monroe Street Jacksonville, Florida 32202
The Issue Petitioner protests the method by which Respondent Department of Transportation (DOT) advertised RFP-DOT-99/00-3002 and RFP-DOT-99/00-3003 and the specifications contained in the RFP's SCOPE OF SERVICES, Sections 1.7.2, 2.0-A, 14.0-A, 14.0-B, and 14.0-C.
Findings Of Fact The subject Requests for Proposal (RFPs) are RFP-DOT- 99/00-3002 and RFP-DOT-99/00-3003, commonly referred-to as the 2000 RFPs. These RFPs seek suppliers of security guards for rest areas and welcome centers maintained by DOT in its District III. That District currently is administered by "east" and "west" segments of Interstate Highway 10, with "east" corresponding to RFP 3003 and "west" corresponding to RFP 3002. NYCO is a supplier of security guard services for industrial, health care, general, and retail establishments in Florida, Alabama, and Mississippi. Ken Chandler is Administrator and Operational Manager for NYCO. Since 1994, NYCO has bid on DOT RFPs for the same project and has provided security guard services for District III. Generally speaking, security guards are non-skilled persons who work at or near minimum wage. Higher standards for its security guards imposed by prior DOT contracts requiring law enforcement training and certification have resulted in NYCO paying off-duty law enforcement officers at a considerably higher rate of pay to work at DOT's facilities. The 2000 RFPs constitute "contractual services contracts" governed by Chapter 287, Florida Statutes. They also are "standard scope of services contracts," which means they are developed on a statewide basis with District input. NYCO's first contract with DOT was awarded July 1, 1994, for two years. The second was awarded July 1, 1996, for two years. For the first contract, specifications were mailed to Mr. Chandler three months in advance of the bid submittal date. For the second contract, NYCO, as the incumbent contract holder, was notified that specifications were ready for pick-up. NYCO had to submit a written request for the RFP package. The 1999 RFP was advertised on the Florida Communities Network (FCN) and, according to Richard Norris, DOT District III Contract Administrator, RFP packages also were sent to all proposers for the prior contract because he had promised to do so when that set of bids had all been rejected. Apparently, no such promise was made for the 2000 RFPs. (TR-103). FCN is a website maintained by the Florida Department of Management Services for the purpose of advertising public contracts. During the course of NYCO's most recent contract, NYCO employee Joe Huff regularly checked with DOT personnel to ensure that the security which NYCO was already providing was going along well. Both Mr. Chandler and Mr. Huff assumed NYCO would be alerted during these conversations as to when it could request the specifications for the next round of contracts, the 2000 RFPs. DOT employee Lloyd Tharpe submitted technical aspects of the 2000 RFPs to Richard Norris on or about December 23, 1999. Mr. Huff testified that he made contact with DOT personnel, including Mark Thomas, Tom Williams, Charlie Ward, Rufus Baron, and Milton Blake, on February 7, February 14, February 15, February 21, and February 29, 2000. While Mr. Huff maintained that on nearly every occasion he asked if the DOT employee to whom he was speaking knew when the new RFP specifications would be ready, his testimony on the precise contents of these conversations is a little vague. He based his recollection on notes in his day planner which merely listed the name of a city, and he then assumed that he spoke with whomever he usually contacted in that city. He could not recall the exact content of these conversations. None of the foregoing DOT employees corroborated that they had been asked about the 2000 RFP specifications by Mr. Huff. It was not established that any of Mr. Huff's contacts were with DOT's procurement office, which Mr. Huff knew advertises the RFPs. DOT District Maintenance Engineer Mark Thomas stated that he only became aware on or about February 29, 2000, that the 2000 RFP was being advertised. Mr. Huff was told on February 29, 2000, by Mark Thomas that the 2000 RFPs were "on the street" and that the mandatory pre-bid conference would be held March 2, 2000. NYCO attended the mandatory pre-bid conference for the 2000 RFPs on March 2, 2000. On March 3, 2000, NYCO timely filed its Notice of Intent to Protest the specifications of the 2000 RFPs. The deadline for submitting proposals in response to the 2000 RFPs was March 9, 2000. NYCO submitted a bid proposal timely, but found it difficult to prepare in such a short time frame. On March 13, 2000, NYCO timely filed its Formal Written Protest of certain specifications of the 2000 RFPs. The specifications challenged in this case were developed by the Department's State Maintenance Office. They read as follows: 1.7.2 Qualifications of Key Personnel Those individuals (as identified in Section 12 of Exhibit "A" Scope of Services) who will be directly involved in the project should have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Department's Contract Manager. Where State of Florida registration, certification, or license is deemed appropriate, as identified in Exhibit "A" Scope of Services, a copy of the registration, certificate, or license shall be included in the proposal package. 2.0-A Services to be Provided by Contractor A. Provide uniformed, armed Security Officers licensed pursuant to F.S. 493, to provide security services. 14.0 Eligibility Criteria All Security Officers and Contract Supervisors employed by the Contractor under this Contract are required to meet the following requirements. Training Requirements: Must be a graduate of a certified United States federal, state, county, or local law enforcement agency training program, a correctional officer training program, a military police training program, or an equivalent training program, which presented the individual with the appropriate certificate or diploma stating eligibility for employment as a Law Enforcement or Correctional Officer. Law Enforcement Officer and Correctional Officer shall be defined in Sections 943.10(1) and (2), Florida Statutes. The Contractor is encouraged to seek services of security guards licensed pursuant to Chapter 493, F.S., who are former members of the armed forces of the United States and have been affected by military downsizing or base closures, and shall be further encouraged to contact community colleges or other educational institutions which provide training for security guards for candidates meeting these qualifications. Licensing Requirements: Contract Supervisors and Security Officers, while on duty, must possess upon their person and present to Department personnel upon request the following: State of Florida Class "D" License (security guard license). State of Florida Class "G" License (license authorizing individual to bear a firearm). State of Florida Driver's License or other State Driver's License which permits the individual to operate a vehicle in the State of Florida. No Security Officer will be permitted to work under this contract using an Acknowledgement Card from the Department of State. A Security Officer or Contract Supervisor employed as a Law Enforcement Officer or Correctional Officer must have documentation showing proof of current employment and approval from his/her employing agency or department to carry a firearm during off-duty hours in his/her capacity as Security Officer and Contract Supervisor. The manner of advertising the 2000 RFPs also was challenged. For the 2000 RFPs, DOT did not advertise in newspapers or the Florida Administrative Law Weekly and did not mail specifications to incumbent contractors or to a list of potential bidders. DOT only advertised the 2000 RFPs via FCN from approximately February 1, 2000 to March 6, 2000. According to Richard Norris, the Department is required by statute to advertise projects on FCN. He cited neither statute nor rule to support his conclusion. He stated that there are many other or additional ways DOT may advertise a project and that advertisement by FCN is only the minimum requirement. He was not aware of any current statutory or rule requirement that DOT directly notify potential bidders for this type of RFP. However, he stated that if he were approached directly by a potential bidder, he would tell that potential bidder about the RFP over the phone. To develop scope of services contracts such as the 2000 RFPs, Alan Reese, the Department's State Contracts and Agreements Manager, directs the gathering of information from the Department's Districts or other sources, develops a draft, receives input from each District as to the draft, and the draft is reviewed throughout the Department, including its legal office, until finally the State Maintenance Engineer signs-off on it. In this instance, the bid specifications were intended to create a uniform and consistent statewide system that was understandable to the bidders. Lloyd Tharpe and his staff were responsible for mailing out the RFP packages as they were requested by potential bidders after the first advertisement approximately February 1, 2000. No active intent or effort by DOT staff to obscure NYCO's opportunity to bid was proven. The 2000 RFPs require that to be a security guard of DOT facilities, one must be qualified to be hired as a law enforcement officer or correctional officer as defined in Subsections 943.10(1) and (2), Florida Statutes. (RFP Section 14.0-A). The training qualifications to be hired as a law enforcement officer under Chapter 943 are higher than those imposed by a Class "D" security guard license from the Department of State pursuant to Chapter 493, Florida Statutes. The 2000 RFP specifications also require that to be a security guard of DOT facilities one must have a Class "D" or Class "G" (if a gun is carried) license from the Department of State, pursuant to Chapter 493, Florida Statutes (RFP Section 4.0-B.1 and 2). DOT interprets the foregoing RFP requirements to mean that even currently employed Florida law enforcement officers and correctional officers must also be licensed by the Florida Department of State as Class "D" or Class "G" security officers. DOT is aware of an exemption in Chapter 493, Florida Statutes, permitting law enforcement officers to act as security guards without obtaining a Class "D" license from the Department. As far as the 2000 RFPs are concerned, the exemption may not be exercised. A 1996 DOT Inspector General's internal audit report identified individuals with questionable backgrounds working for security firms which had already contracted with DOT. The report concluded that the background checks that the then- existing contracts required the contract security firms to perform had been unsatisfactory. The report recommended that the security firms do more extensive background checks on their employees. DOT did not want anybody guarding tourists, especially women and children tourists, who had not gone through a thorough background check. DOT apparently felt it could not rely on the security firms to do background checks on their employee-guards. DOT determined that it did not have authority or ability to do its own background checks, so it decided to rely on the Department of State, which did have authority and ability to do background checks. Mark Thomas understood that once an application for a Class "D" or "G" license has been received by the Secretary of State, an FDLE criminal background check is conducted by the Florida Department of Law Enforcement (FDLE), and an acknowledgment card is sent by the Department of State to the applicant which states that the applicant may perform security guard services while carrying the card. However, Mr. Thomas ultimately admitted that he did not know anything at all about Department of State background checks. His "understanding" was not corroborated by Ms. Constance Crawford. Constance Crawford is the Bureau Chief for the Bureau of Licensing, Department of State. She handles the administrative responsibilities associated with the review of security guard applications pursuant to Chapter 493, and Sections 790.06 and 849.094, Florida Statutes. According to her, the Department of State will issue Class "D" and Class "G" security guard licenses to law enforcement officers. Ms. Crawford provided no information about the Department of State's security guard background checks. In developing the 2000 RFPs, DOT decided not to accept Department of State acknowledgement cards because DOT staff believed that acknowledgment cards were issued by the Department of State to applicants before a national background check (also called an NCIC check) was completed through the Federal Bureau of Investigation (FBI). No DOT witness had knowledge of how Department of State, FDLE, or FBI background checks are performed. Mr. Chandler testified that NYCO's problem with the RFPs' requirement for law enforcement officers to have Class "D" and/or Class "G" licenses before they are employed at DOT's interstate facilities was due to the time it takes to get Class "D" and "G" licenses issued by the Department of State, which can be anywhere from a few weeks to several months, and because it is very difficult for NYCO to retain potential employees for that long before they are placed on the jobsite. He testified that NYCO would have no problem if the employees could be certified in three days. Mr. Chandler testified that the letters of authorization required by DOT in specification 14.0-C differed from the language employed in Chapter 493, Florida Statutes, and that many law enforcement agencies had refused to sign the form letter provided by DOT because those law enforcement agencies interpreted the letters to make the law enforcement agencies liable for anything done by the law enforcement officer, on or off-duty. DOT's approved form letter reads: Dear Sirs: is an employee of this Department and has the approval of this Department to carry a fire arm during off- duty hours in his/her capacity as a Security Officer and/or Contract Supervisor at the Florida Department of Transportation Rest Areas/Welcome Centers within the Third District. Sincerely, Name Title
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Transportation which rejects all bids and provides that the specifications be redrafted in accordance with the foregoing Findings of Fact and Conclusions of Law. DONE AND ENTERED this 22nd day of August, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 22nd day of August, 2000.
Findings Of Fact Thomas A. Baggett, Respondent, is a Tampa Bay Pilot licensed by the State of Florida and holds license number 000045. He was so licensed at all times relevant to the charges here involved. On December 13, 1985, the United States Coast Guard held a hearing concerning the Coast Guards charge of negligence against Baggett for his piloting of the T/B Bulkfleet Pennsylvania. At that hearing Baggett pleaded guilty to and was found guilty of the charge that he was negligent while piloting the T/B Bulkfleet Pennsylvania on November 19, 1985, which resulted in this vessel running aground in the vicinity of Cut "C" Channel, Hillsborough Bay, Florida. At the time of the grounding of the T/B Bulkfleet Pennsylvania, Baggett was acting under the authority of his Coast Guard license number 486856 and was subject to the jurisdiction vested in the Coast Guard under 46USC 7703 or 7704.
