The Issue The issue is whether Respondent violated Subsections 489.129(1)(g)2., (j), and (m), Florida Statutes (2005),1 by allegedly engaging in financial mismanagement or misconduct in the practice of contracting that causes financial harm to a customer, abandoning a construction project, or committing misconduct or incompetence in the practice of contracting.
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting in the state. Respondent is licensed in the state as a certified general contractor pursuant to license number CGC59204. Respondent is the qualifier of South West Florida Development Corporation (South West) doing business as Back Bay Homes (Back Bay). On February 7, 2006, Respondent executed a contract with Gail and Gary Veith to build a residential home on a vacant lot located at 3218 Southwest 11th Place, Cape Coral, Florida. The contract price was $276,983.00 (the initial contract). The initial contract provided for the construction of a sea wall at a cost of $17,257.00 in addition to the contract price of $276,983.00. On February 7, 2006, Respondent entered into a second contract with Mr. and Mrs. Veith. The only difference between the initial and second contracts was the contract price of each contract. The second contract price was $289,686.00, excluding the sea wall cost of $17,257.00. Mr. and Mrs. Veith secured payment of the construction project with a construction loan from Market Street Mortgage Corporation (Market Street) in the original approximate amount of $412,000.00. The total loan amount was intended to be sufficient to cover the second contract price of $289,686.00 and the amount contracted by Mr. and Mrs. Veith for acquisition of the vacant lot (construction site), which was $128,000.00.2 Clear and convincing evidence shows that Respondent engaged in financial mismanagement or misconduct in the practice of contracting that caused financial harm to his customers in violation of Subsection 489.129(1)(g)2. Clear and convincing evidence also shows that Respondent committed incompetence and mismanagement in the practice of contracting. The percentage of completion of the residence, which was zero, was less than the percentage of the contract price paid to Respondent, which was 29 percent. Respondent received approximately $84,655.00 in construction loan proceeds from Market Street in two draws. Market Street paid the first draw at closing on May 5, 2006, in the amount of $42,901.20 and paid the second draw to Respondent on June 26, 2006, in the amount of $41,754.00. However, Respondent never commenced construction of the residence. Respondent reported a profit of $48,637.72 on the Veith property and completed only the sea wall at a cost of $17,257.00. Respondent paid the cost of the sea wall and other expenses on the Veith property to keep the net profit at $48,637.72. Other expenses included $420.00 for surveys, $34.34 for blue prints, $1,707.75 for plan drafts, $350.00 for septic engineering, and $3,138.19 for construction loan interest. Respondent was not entitled by the terms of the contract to retain the funds paid to Respondent by Market Street. The loan agreement provided that draws were to be made at the discretion of Market Street based on work completed and materials incorporated into improvements. Respondent never commenced construction of the residence. Respondent did not obtain permits for the job. Mr. Winston testified that when Market Street transferred a single, lump sum deposit to his company in the amount of $41,754.00 on June 26, 2006, he did not know that he was appropriating funds he was not entitled to under the contract. When that testimony is weighed against evidence that the work Mr. Winston had performed was limited to a sea wall costing only $17,257.00, the testimony is persuasive evidence to the trier of fact that Respondent engaged in mismanagement.3 Respondent billed Market Street for payment of the sea wall when Respondent completed the sea wall. However, the draw schedule in the loan documents does not provide a draw payment for the sea wall. Respondent stopped paying construction interest that Respondent was obligated to pay under the terms of the construction loan. Thereafter, Mr. and Mrs. Veith paid construction interest of approximately $13,800.00. Clear and convincing evidence shows that Respondent abandoned the construction project within the meaning of Subsection 489.129(1)(j). Respondent failed to perform any work on the residence for 90 consecutive days without just cause. Respondent did not notify Mr. and Mrs. Veith that Respondent had abandoned the project. Rather, Mr. and Mrs. Veith started receiving requests for payment of construction loan interest. Respondent failed to conduct any construction activity on the project site for more than 90 consecutive days. On May 13, 2008, Mr. and Mrs. Veith received notice that their loan had been assigned from Market Street to Gulf Coast Bank & Trust Company (Gulf Coast). Gulf Coast sent Mr. and Mrs. Veith repeated demands for payment of the construction loan principal and interest. Mr. and Mrs. Veith entered into a transaction identified in the record as a "short sale" in which they sold the construction site, which they originally purchased for $128,000.00, for $20,000.00. The $20,000.00 sale proceeds were paid to Gulf Coast. Mr. and Mrs. Veith have been financially unable to make payments to Gulf Coast. They remain liable for the full amount of the loan, including delinquent principal and interest. Mr. and Mrs. Veith brought a civil action against Respondent. They were unable to sustain the action because they could not afford the attorney fees. Petitioner incurred investigative costs in this matter of $204.26. The investigative costs do not include attorney time.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order finding that Respondent is guilty of the violations alleged in the Administrative Complaint; imposing the fines enumerated in paragraph 24 of this Recommended Order; requiring Respondent to pay investigative costs in the amount of $204.26; and requiring Respondent to make full restitution to Mr. and Mrs. Veith in the amount of $61,747.72. DONE AND ENTERED this 12th day of July, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 July, 2010.
The Issue The issue in these cases is whether the Department of Juvenile Justice's (Department) proposed award of certain contracts to Bay Area Youth Services, Inc. (BAYS), based on evaluations of proposals submitted in response to a Request for Proposals is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact On July 2, 2003, the Department issued Request for Proposal (RFP) No. V6P01 for operation of IDDS programs in Judicial Circuits 1 through 20. The Department issued a single RFP and anticipated entering into 20 separate contracts, one for each circuit. Each contract was for a three-year period with the possibility of a renewal for an additional three-year period. The RFP was prepared based on a "contract initiation memo" generated within the Department and upon which the scope of services set forth in the RFP was based. The Department assigned one contract administrator to handle the procurement process. An addendum dated July 18, 2003, was issued to the RFP. As amended by the addendum, the RFP required submission of information in a tabbed format of three volumes. Volume I was the technical proposal. Volume II was the financial proposal. Volume III addressed past performance by the vendor. The addendum also allowed providers to submit some information in electronic format. The addendum requested, but did not require, that it be signed and returned with the submission. BAYS did not return a signed copy of the addendum in its proposal. Failure to sign and return the addendum was not fatal to the consideration of a proposal. The RFP set forth only two criteria for which noncompliance would be deemed "fatal" to a proposal. Failure to comply with a fatal criterion would have resulted in automatic elimination of a provider's response; otherwise, all responses submitted were evaluated. The proposals were opened on July 31, 2003. The contract administrator and staff reviewed the bids to ascertain whether required items were included, and noted the proposed costs on bid tabulation sheets. The first fatal criterion was failing to submit a properly executed "Attachment A" form to a submission. Attachment A is a bidder acknowledgment form. Both BAYS and JSP included a completed Attachment A in the responses at issue in this proceeding. The second fatal criterion was exceeding the Maximum Contract Dollar Amount. RFP Attachment B, Section XIII, provides in relevant part as follows: The Maximum Contract Dollar Amount will be the Annual Maximum Contract Dollar Amount multiplied by the number of years in the initial term of the Contract . . . . EXCEEDING THE ANNUAL MAXIMUM CONTRACT DOLLAR AMOUNT IS A FATAL CRITERION. ANY PROPOSAL WITH A COST EXCEEDING THE ANNUAL MAXIMUM CONTRACT DOLLAR AMOUNT WILL BE REJECTED. The information reviewed as to each provider's cost proposal was set forth in Volume II, Tab 1, which included RFP Attachment J. RFP Attachment J is a cost sheet where providers were required to set forth proposal costs identified as the "Maximum Payment" under their proposal. Attachment K to the RFP identifies the counties served in each circuit, number of available slots in each circuit, and the Annual Maximum Contract Dollar Amount for each circuit. JSP appears to have simply copied information from Attachment K onto Attachment J. The Department's contract administrator was the sole person assigned to review Volume II of the responses. Volume II included the cost proposal, the supplier evaluation report (SER), and the certified minority business enterprise (CMBE) subcontracting utilization plan. Neither BAYS nor JSP exceeded the Annual Maximum Contract Dollar Amount applicable to any circuit at issue in this proceeding. Both BAYS and JSP identified a Maximum Payment equal to the Annual Maximum Contract Dollar Amount as their proposal cost. Both BAYS and JSP received scores of 100 points for cost proposals in all responses at issue in this proceeding. JSP asserts that the instructions as to identification of the Annual Maximum Contract Dollar Amount were confusing and that its actual cost proposal was less than that set forth as the "Maximum Payment" on Attachment J. JSP asserts that it actually listed its cost proposal at the section identified on Attachment J as "renewal term dollar amount proposed." JSP asserts that the Department should have reviewed supporting budget information set forth in Attachment H to the RFP to determine JSP's cost proposal, and that the Department should have determined that JSP's actual cost proposal was less than that of BAYS. The Department did not review the budget information in Attachment H, but based its cost evaluation of the proposals on the total figures set forth on Attachment J. Nothing in the RFP suggests that underlying information as to cost proposals would be reviewed or evaluated. The evidence fails to establish that the Department's reliance on the information set forth on Attachment J was unreasonable or erroneous. The evidence fails to establish that the Department's scoring of the cost proposals was contrary to the RFP. The evidence fails to establish that JSP is entitled to have its cost proposal re-scored. One of the requirements of the RFP was submission of a "Supplier Evaluation Report" (SER) from Dunn & Bradstreet. The submission of the SER was worth 90 points. Dunn & Bradstreet transmitted most of the SERs directly to the Department, and the Department properly credited the providers for whom such reports were transmitted. The Department's contract administrator failed to examine BAYS submission for the SER, and BAYS did not receive credit for the SER included within its proposal. The failure to credit BAYS for the SERs was clearly erroneous. BAYS is entitled to additional credit as set forth herein. The RFP sought utilization of a CMBE in a provider's proposal. BAYS proposal included utilization of The Nelco Company, an employee leasing operation. The Nelco Company is a properly credentialed CMBE. Under the BAYS/Nelco arrangement, BAYS would retain responsibility for identification and recruitment of potential employees. BAYS performs the background screening and makes final employment decisions. BAYS retains the right to fire, transfer, and demote employees. The Nelco Company would process payroll and handle other fiscal human resource tasks including insurance matters. The Nelco Company invoices BAYS on a per payroll basis, and BAYS pays based on the Nelco invoice. JSP asserts that under the facts of this case, the participation of The Nelco Company fails to comply with the RFP's requirement for CMBE utilization. BAYS proposals also included utilization of other CMBEs. There is no credible evidence that BAYS utilization of The Nelco Company or of the other CMBEs included within the BAYS proposals fails to comply with the RFP's requirement for CMBE utilization. The Department assigned the responsibility for service proposal evaluation to employees located within each circuit. The contract administrator and staff distributed appropriate portions of Volume I of each proposal to the evaluators. The evidence establishes that the evaluators received the documents and evaluated the materials pursuant to written scoring instructions received from the Department. Some reviewers had more experience than others, but there is no evidence that a lack of experience resulted in an inappropriate review being performed. In two cases, the evaluators worked apart from one another. In one circuit, the evaluators processed the materials in the same room, but did not discuss their reviews with each other at any time. There is no evidence that evaluators were directed to reach any specific result in the evaluative process. JSP asserts that there was bias on the part of one evaluator who had knowledge of some unidentified incident related to JSP. The evidence fails to establish the facts of the incident and fails to establish that the incident, whatever it was, played any role in the evaluator's review of the JSP proposal. JSP also asserts that another evaluator had contact with JSP at some point prior to his evaluation of the RFP responses. There is no evidence that the contact was negative or was a factor either for or against JSP in the evaluation of the RFP responses. The RFP required that each provider's proposal include letters of intent from "local service resources" indicating a willingness to work with the provider and a letter of support from the State Attorney in the judicial circuit where the provider's program would operate. The RFP indicates that Volume I of a provider's response should contain five tabbed sections. The RFP provides that "information submitted in variance with these instructions may not be reviewed or evaluated." The RFP further provides that failure to provide information "shall result in no points being awarded for that element of the evaluation." JSP included letters of support in Tab 5 of Volume I. BAYS included letters of support in a tabbed section identified as Tab 6 of Volume I. JSP asserts that information included in Tab 6 of BAYS proposals should not have been evaluated and that no points should have been awarded based on the information included therein. The evidence fails to support the assertion. Based on the language of the RFP, submission of information in a format other than that prescribed is not fatal to a proposal. The Department reserved the authority to waive such defects and to evaluate the material. Here, the Department waived the variance as the RFP permitted, and reviewed the material submitted by BAYS. JSP asserts that BAYS proposal breached client confidentiality by inclusion of information regarding an individual who has allegedly received services through BAYS. Records regarding assessment or treatment of juveniles through the Department are deemed confidential pursuant Section 985.04, Florida Statutes (2003). The evidence fails to establish that an alleged violation of Section 985.04, Florida Statutes (2003), requires rejection of the BAYS proposals. There is no evidence that the information was released outside of the Department prior to the bid protest forming the basis of this proceeding. The evidence establishes that JSP misidentified the name of its contract manager in its transmittal letter. The evidence establishes that the misidentification was deemed immaterial to the Department, which went on to evaluate the JSP proposals. The results of the evaluations were returned to the contract administrator, who tabulated and posted the results of the process. On August 25, 2003, the Department posted a Notice of Intent to Award contacts based on the proposals submitted in response to the RFP. Insofar as is relevant to this proceeding, the Department proposed to award the contracts for Circuits 5, 6, and 20 to BAYS. The Department received four proposals from IDDS program providers in Circuit 5 (DOAH Case No. 03-3671BID). According to the Notice of Intended Contract Award, BAYS was the highest ranked bidder with 651.8 points. JSP was the second highest bidder with 642.6 points. White Foundation was the third highest bidder at 630.7 points, and MAD DADS was the fourth bidder at 442.8 points. The evidence establishes that BAYS included its SER in its Circuit 5 proposal. The Department neglected to examine BAYS submission for the SER, and BAYS did not receive credit for its SER. BAYS should have received an additional 90 points, bringing its total points to 741.8. The Department received two proposals from IDDS program providers in Circuit 6 (DOAH Case No. 03-3672BID). According to the Notice of Intended Contract Award, BAYS was the highest ranked bidder with 649.0 points. JSP was the second highest bidder with 648.8 points. The evidence establishes that BAYS included its SER in its Circuit 6 proposal. The Department neglected to examine BAYS submission for the SER, and BAYS did not receive credit for its SER. BAYS should have received an additional 90 points, bringing its total points to 739.0. The Department received two proposals from IDDS program providers in Circuit 20 (DOAH Case No. 03-3673BID). According to the Notice of Intended Contract Award, BAYS was the highest ranked bidder with 644.2 points. JSP was the second highest bidder with 620.6 points. The evidence establishes that BAYS included its SER in its Circuit 20 proposal. The Department neglected to examine BAYS submission for the SER, and BAYS did not receive credit for its SER. BAYS should have received an additional 90 points, bringing its total points to 734.2. MOTION TO DISMISS BAYS asserts that the Petitions for Hearing filed by JSP must be dismissed for failure to comply with Section 287.042(2)(c), Florida Statutes (2003), which requires that a protesting bidder post a bond or cash in an amount equal to one percent of the estimated contract amount by the time a formal written bid protest is filed. Item 8 of the RFP indicated that the bond or cash amount required was one percent of the total contract amount or $5,000, whichever was less. However, RFP Attachment "B," Section IX, indicates that it replaces RFP Item 8, and provides that the required bond or cash amount is one percent of the estimated contract amount. Pursuant to Section 120.57(3)(b), Florida Statutes (2003), JSP had 72 hours from the announcement of the bid award to file a Notice of Protest and an additional ten days to file a Formal Written Protest. The notice of intended bid award was posted on August 25, 2003. Accordingly, the written protest and appropriate deposits were due by September 8, 2003. The Department's Notice of Intended Award referenced the bond requirement and stated that failure to post the bond would constitute a waiver of proceedings. On September 8, 2003, JSP provided to the Department a cashier's check for $2,159.70 in relation to its protest of the award for Circuit 5. The contract amount was $647,910. One percent of the contract amount is $6,479.10. On September 8, 2003, JSP provided to the Department a cashier's check for $3,414.52 in relation to its protest of the award for Circuit 6. The contract amount was $1,025,857.50. One percent of the contract amount is $10,258.57. On September 8, 2003, JSP provided to the Department a cashier's check for $2,231.69 in relation to its protest of the award for Circuit 20. The contract amount was $669,507. One percent of the contract amount is $6,695.07. In response to JSP's insufficient cashier's checks, the Department, by letter of September 12, 2003, advised JSP of the underpayment and permitted JSP an additional ten days to provide additional funds sufficient to meet the requirements of the statute. JSP, apparently still relying on the superceded language in the RFP, forwarded only an amount sufficient to bring the deposited funds to $5,000 in each case. By letter dated September 25, 2003, the Department again advised JSP that the deposited funds were insufficient and provided yet another opportunity to JSP to deposit additional funds. On September 29, 2003, JSP forwarded additional funds to provide the appropriate deposits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a Final Order as follows: Dismissing the Petition for Hearing filed by MAD DADS of Greater Ocala, Inc., in Case No. 03-3670BID based on the withdrawal of the Petition for Hearing. Dismissing the Petitions for Hearing filed by JSP for failure to comply with Section 287.042(2)(c), Florida Statutes (2003), and for the other reasons set forth herein. DONE AND ENTERED this 16th day of January, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 16th day of January, 2004. COPIES FURNISHED: James M. Barclay, Esquire Ruden, McClosky, Smith, Schuster & Russell, P.A. 215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 Brian Berkowitz, Esquire Kimberly Sisko Ward, Esquire Department of Juvenile Justice Knight Building, Room 312V 2737 Centerview Drive Tallahassee, Florida 32399-3100 Larry K. Brown, Executive Director MAD DADS of Greater Ocala, Inc. 210 Northwest 12th Avenue Post Office Box 3704 Ocala, Florida 34478-3704 Andrea V. Nelson, Esquire The Nelson Law Firm, P.A. Post Office Box 6677 Tallahassee, Florida 32314 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact Peace River Center for Personal Development (herein Petitioner) is a community service center that offer services to clients who are victims of crimes. Petitioner has been awarded VOCA funds in the past by Respondent. Pursuant to the contract with Respondent, Petitioner was advised that VOCA funds were awarded specifically and that renewal was not automatic but would be considered each funding year. The contract and the VOCA guidelines grant Respondent the discretion to renew or not renew funding requests By letter dated March 23, 1994, Respondent advised Petitioner that its VOCA contract was expiring on June 30, 1994. Petitioner was also advised that its contract may or may not be renewed for an additional year depending on the outcome of a program evaluation and the availability of VOCA funds. In the March 23, 1994 letter to Petitioner, Respondent advised Petitioner that federal VOCA funding to Florida for the 1994/95 fiscal year had been reduced and the reduction would be passed on to applicants. The issuance of renewal funds for the 1994/95 VOCA contracts were based on three criteria, (1) the grant renewal requests, goals and objectives, and budget; (2) an evaluation of the VOCA program's effectiveness in serving victims of crime; and (3) the availability of funds. For fiscal year 1993/94, Petitioner received $55,000 in VOCA funds. Those funds were to assist with the provision of services to adult sexual abuse and domestic violence victims. Petitioner submitted documentation in support of its initial VOCA funding request and indicated that part of its funding would be used to hire a coordinator therapist and a child care advocate. However, during the course of the 1993/94 fiscal year, Petitioner did not fill those positions until the second half of the year based on delays that it experienced in building a new facility. As a result, a portion of the VOCA funds lapsed. Because of those delays, a contract amendment was executed by the parties allowing the lapsed money, which would have been spent for those professional positions, to be used for furniture and supplies. Based on the modification, revised goals were established. Thus, Petitioner set out to serve only 20 children in the child care unit instead of the 60 as noted in the funding request and to provide only 300 hours of child care to children of domestic violence victims instead of the 1000 hours as requested. The modification was an effort to maximize funding in the interest of the community for the 1993/94 fiscal year. Respondent established a procedure for evaluating all applicants for VOCA funding grants in 1994/95. This procedure included forwarding a packet of information which was sent to all applicants. The packet included a cover letter, instructions, a check list and various forms to be completed. As noted, the federal VOCA grant to Respondent was reduced by 5 percent for fiscal year 1994/95. Although Respondent's staff initially recommended to the Attorney General that all VOCA grants be reduced by 5 percent, Respondent reconsidered and decided that it would be more appropriate to evaluate each program to determine which programs were more efficient and were providing the most needed services to the communities. Respondent also reviewed those programs which provided services that were offered by VOCA monies and were achieving the goals and objectives that were originally stated in the funding request. The Respondent implemented this procedure and in doing so, set up a competitive process to rate each of the 48 existing VOCA grantees. To be awarded VOCA funds, the applicants were initially requested to submit renewal applications. Secondly, Respondent solicited comments from community representatives concerning the performance of the grantee over the preceding fiscal year and evaluated those comments. Next, Respondent reviewed and analyzed the funding by the internal monitoring system that was in place at the time. Utilizing this procedure, the grant managers within Respondent's office reviewed their internal reviews, evaluated the monitoring report of the agency that they had prepared including monthly reimbursement requests and any communication or correspondence that had been entered into between the agencies. Respondent's input from the community centered around the performance of the grantees. In measuring their performance, Respondent attempted to get at least three certifiers from persons in the community who worked with, or were familiar with, the grantees. Respondent selected three of the certifiers that had originally certified the grantee program prior to the award of the first VOCA grant and sent forms to those entities. In addition, Respondent attempted to get two additional certifiers, the state attorney's office or local law enforcement, to participate in the certification process. This second group of certifiers was contacted by telephone. In Petitioner's case, only three certifications were submitted. Respondent reviewed those written certifications and rated Petitioner. One certifier observed that Petitioner had insufficient staffing, that waiting periods were too long for victims to get in and that rape crisis volunteers needed to be matched in age with rape victims. That certifier did not intend for her review to impact adversely upon Petitioner's VOCA grant request although she stood by the representations made in the certification. The next certifier related that Petitioner displayed a program weakness in that victims of domestic violence were required to attend the same domestic violence treatment program class as the abuser or pay an additional $200 to attend a different treatment program. She also noted that certain child care victims were not assisted during court appearances, which was an area that Petitioner specifically noted that it would provide services under the VOCA grant. The next certifier related that Petitioner had a number of weaknesses in its program, albeit unspecific, and that she was familiar with the quality of services that Petitioner rendered with VOCA funds since February of 1994. Upon receiving all of the certification information, Respondent compiled a report and ranked each applicant by assigning a numerical value to each applicant. The ranking was based on the totality of the responses received by Respondent. All of the applicants were rated and based on those ratings, their VOCA grant applications were either renewed or not renewed. Of the 48 applicants evaluated, 45 were funded in whole or in part based on their numerical ranking and 3 requests were not funded, including Petitioner's request. Of all the applicants, Petitioner was ranked 48th or last. Specifically, Petitioner was advised of the non-renewal by Respondent in a June 10, 1994 letter that: This decision was based on an internal performance evaluation and upon performance evaluations of your program by agencies and organizations within your community. A major factor in the non-renewal determination was the administration of the VOCA funds, resul- ting in hiring delays, causing a de-obligation of funds and unnecessary waiting lists for crime victims. The effectiveness of services to your community was also a major factor in not offering your agency a renewal contract. Finally, Respondent's chief of advocacy and grants management of the Attorney General's office, Marcie Davis, was formerly employed in a position where she answered a toll-free information line to assist victims of crimes. Ms. Davis recalled an attempt, by her, to get counselling for a child who was a victim of domestic violence in Petitioner's service area (his mother was murdered by her boyfriend) during the 1993/94 fiscal year. Ms. Davis was unable to get services from Petitioner for that child due to its waiting list - a period of eight to thirteen weeks. Respondent's denial of Petitioner's application for VOCA funds was a non-renewal and was not a termination for cause. Respondent utilized sound discretion in awarding the VOCA funding to the various grantees. There was no evidence that the ranking of any grantee, including Petitioner, was either arbitrary or capricious.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent enter a final order denying Petitioner's request to reverse the discretionary decision made to deny Petitioner's request for VOCA funding for the 1994/95 fiscal year. DONE AND ENTERED this 26th day of January, 1995, in Tallahassee, Florida. JAMES E. BRADWELL 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 26th day of January, 1995. APPENDIX TO RECOMMENDED ORDER Rulings on Petitioner's proposed findings of fact: Paragraph 4, rejected, not probative, paragraph 5 rejected, contrary to the greater weight of evidence, paragraphs 11-13, Recommended Order. Paragraph 7, rejected, speculative and not probative. Paragraph 9, rejected, contrary to the greater weight of evidence, Paragraphs 9 and 10, rejected contrary to the greater weight of evidence, paragraphs 12 and 17, Recommended Order. Rulings on Respondent's proposed findings of fact Paragraph 11, rejected, irrelevant and not probative. COPIES FURNISHED: Dennis Eshman, Esquire 1745 Highway 17 South Bartow, Florida 33830 M. Catherine Lannon, Esquire Gregory A. Chaires, Esquire Office of the Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 Honorable Robert Butterworth Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050
Findings Of Fact On November 30, 1982 the Chancellor of the State University System approved Amendment 567, as revised, to the Capital Outlay Implementation Plan. This Amendment budgeted $6,350,000 for the construction and equipment of a teaching gymnasium at Florida International University on the Tamiami Campus. Included within that figure were $350,000 of planning expenses appropriated by the 1981 Florida Legislature and $6,000,000 appropriated by the Legislature in 1982 for the expenses of construction, art work and contingencies. In the early part of 1983 the State University System advertised for bids from contractors to construct the gymnasium. The bids were open on May 17, 1983 at 2:00 PM. on the Florida International University Tamiami Campus. Petitioner's base bid of $5,998,000 was the lowest of the 17 received, nevertheless it was $350,000 above the estimate in Amendment 567. The next lowest bid was for $6,045,000. The bid specifications required that six alternatives in addition to the base cost be bid on, but through an oversight Sanmar's bids on these alternatives did not conform to the bid specifications. Sanmar's alternative bids failed to indicate that the amount reflected was in addition to the base cost bid. However, because the issues in this case concern the base bid amount, Sanmar's error with respect to the alternatives is not material. At the May 17, 1983 bid opening Respondent's agent, the architectural firm of Greenleaf-Telesca, announced that it would recommend to the Board of Regents that all bids be rejected as being in excess of the funds available through legislative appropriations. Respondent intends to make design changes in the project to make it less expensive and to then rebid it. On May 18, 1983 Sanmar timely filed a protest to the rejection of its bid. Subsequent to May 17, 1983 and Respondent's decision to reject all bids, the Florida Legislature through Section 2(2)(y), Chapter 83-333, Laws of Florida (1983), appropriated an additional $500,000 for the construction of the gymnasium. This appropriation became effective on July 1, 1983. After its receipt of Sanmar's bid protest Respondent provided in a letter dated June 3, 1983 the figures on which the Respondent based its decision to reject all bids including Sanmar's. These figures follow: Architects fee including additional services $ 379,240.00 **Architects construction observation (included in architects estimate as part of the fee and contingencies) $ 90,000.00 Sanmar Base Bid $5,998,000.00 Equipment $ 200,000.00 Contingency (3 percent of construction cost) $ 179,940.00 Based on Sanmar's bid $6,847,420.00 Artwork $ 28,240.00 $6,875,420.00 **Estimated based on 18-month construction time. Petitioner has taken issue with the 3 percent contingency amount included in the above figures, however, the evidence shows that 3 percent is a reasonable amount based upon the State University System's experience with previous construction and is a fair estimate to insure that projects once begun can be adequately funded by the amount appropriated for their construction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Regents enter a Final Order rejecting all bids for the construction of a teaching gymnasium at the Tamiami Campus of the Florida International University. DONE and RECOMMENDED this 15th day of December, 1983, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1983.
Findings Of Fact The Petitioner, a nonprofit corporation, was licensed by the Respondent to operate as a vocational, technical, or trade school during 1977. The school was designed to teach business machine repair and maintenance skills to students. The Petitioner applied for a renewal of the license with the Respondent for 1978. By letter dated August 14, 1978, the Respondent advised the Petitioner that it would not reissue the license. The Petitioner requested an administrative hearing, and this proceeding ensued. Beginning in January, 1977, the Petitioner was funded by the "CETA Administration" as a service delivery agent. Under this funding, the Petitioner would submit requests for reimbursement based upon its expenditures in providing an educational program to its students, and the Petitioner was funded directly. Petitioner enjoyed this status from January through September, 1977, and received a total of $87,806.07 in direct funding. As of October 1, 1977, the Petitioner's funding status with CETA changed. After that date the Petitioner became what was called a "sub-subgrantee" of the vocational education component of the local CETA Administration. The vocational education component of CETA became the service delivery agent, and was directly funded. The Petitioner thereafter was not able to do its own recruiting of students, and no longer received direct funding from CETA. Rather, CETA would pay to students a stipend adequate to compensate them for tuition, and other costs of the program. On October 1, the Petitioner had eleven students. Despite the Petitioner's efforts to provide the new service delivery agent with the names of persons interested in participating in the Petitioner's program, CETA did not refer new students to the program. The school lost approximately one student per month from October, 1977 through May, 1978. CETA discontinued all funding of the Petitioner on June 7, 1978. Since that date the Petitioner has had no students. The financial statement submitted by the Petitioner to the Respondent in connection with the renewal application revealed that the Petitioner was operating with a net income loss of $524.76; had total assets of minus $203.57; a fund balance of minus $446.96; and total liabilities of more than two hundred dollars. The projected finances for the period October 1, 1978 through September 30, 1979 indicates that the school will lose approximately ten thousand dollars. The Petitioner, in its renewal application, did not reveal that it had had a drastic change in its funding status, and that it had lost all of its students. During the time that it was in operation, only approximately five persons completed the Petitioner's course work. The Petitioner submitted with its renewal application, a copy of its school catalog. The catalog revealed that certain persons remained on the school's board of directors, who in fact had resigned from these positions. This failure is excusable. The catalog that was submitted was the same catalog that had been used the year before. Due to the loss of its CETA funding, the Petitioner could not afford to have new catalogs printed.
The Issue The issues in this protest are whether Respondent's intended action——i.e., deeming Petitioner's application ineligible for funding on the grounds that the amount of capital the applicant's equity proposal states will be invested during construction is insufficient to cover development costs——is contrary to governing statutes, administrative rules, or the specifications of the solicitation; and, if so, whether this erroneous action is contrary to competition, clearly erroneous, or arbitrary or capricious.
Findings Of Fact FHFC is the housing credit agency for the state of Florida whose responsibilities include the awarding of low- income housing tax credits, which developers use to finance the construction of affordable housing. Tax credits are distributed pursuant to a competitive process similar to a public procurement that starts with FHFC's issuance of a request for applications.1/ On January 9, 2019, FHFC issued Request for Applications 2019-105 (the "RFA"). Eighteen applications were submitted in response to the RFA on February 6, 2019. A Review Committee was appointed to evaluate the applications and make recommendations to FHFC's Board of Directors (the "Board"). Pursuant to the ranking and selection process outlined in the RFA, applicants were evaluated on eligibility items and were awarded points for other items. Florida Administrative Code Rule 67-60.006 provides that "[t]he failure of an Applicant to supply required information in connection with any competitive solicitation . . . shall be grounds for a determination of nonresponsiveness with respect to its Application. If a determination of nonresponsiveness is made by [FHFC], the Application shall be considered ineligible." The RFA sets forth a list of mandatory Eligibility and Point Items that must be included in a response. The RFA expressly provides that "[o]nly Applications that meet all of the Eligibility Items will be eligible for funding and considered for funding selection." As an Eligibility Item, each applicant was required to submit, as part of its application, a Development Cost Pro Forma detailing both the anticipated costs of the proposed development, as well as the anticipated funding sources for the proposed development. In order to demonstrate adequate funding, the Total Construction Sources (including equity proceeds/capital contributions and loans) as shown in the pro forma must equal or exceed the Total Development Costs reflected therein. During the scoring process, if a funding source is not considered or is adjusted downward, then Total Development Costs might wind up exceeding Total Construction Sources, in which event the applicant is said to suffer from a construction funding shortfall (deficit). If an applicant has a funding shortfall, it is ineligible for funding. The Development Cost Pro Forma does not allow applicants to include in their Total Construction Sources any equity proceeds to be paid after construction completion. Instead, the applicant must state only the amount of "Equity Proceeds Paid Prior to Completion of Construction." The pro forma defines "Prior to Completion of Construction" as "Prior to Receipt of a Final Certificate of Occupancy." The RFA requires, as well, that an equity proposal letter be included as an attachment to the application. For a housing credit equity proposal to be counted as a source of financing, it must meet the following criteria: Be executed by the equity provider; Include specific reference to the Applicant as the beneficiary of the equity proceeds; State the proposed amount of equity to be paid prior to construction completion; State the anticipated Eligible Housing Credit Request Amount; State the anticipated dollar amount of Housing Credit allocation to be purchased; and State the anticipated total amount of equity to be provided. (Emphasis added). The Review Committee found 14 applications eligible and four applications ineligible, including the Vistas application. Two applications were recommended for funding: Lincoln Village Apartments and Winchester Place. At a meeting on March 22, 2019, the Board approved the Review Committee's eligibility and funding recommendations. In its application, Vistas requested an allocation of $1,325,000 in housing credits. In formulating its intended action on the RFA, FHFC determined that Vistas is not eligible for an award of housing credits for failing to state in its application that an amount of equity sufficient to cover the anticipated development costs would be invested in the project prior to construction completion. Vistas protests this determination of ineligibility. Due to the limited availability of credits and Vistas' position in the ranking, Winchester Place, a putatively successful applicant, would end up being deselected if FHFC's final agency action were to find Vistas eligible. Thus, Winchester Place has intervened in this proceeding to defend the intended agency action. As Attachment 14 to its application, Vistas submitted an equity proposal letter from RBC Capital Markets ("RBC") executed by David J. Urban (the "Equity Proposal"). In relevant part, the Equity Proposal states: Anticipated Total Equity to be provided: $12,586,241* Equity Proceeds Paid Prior to or simultaneous to closing the construction financing: $2,013,799* (min. 15%) Equity Proceeds to be Paid Prior to Construction Completion: $7,048,295 Pay-In Schedule: Funds available for Capital Contributions #1: $2,013,799* be paid prior to or simultaneously with the closing of the construction financing. Funds available for Capital Contribution #2 $1,887,936* prior to construction completion. Funds available for Capital Contribution #3 $3,146,560* concurrent with permanent loan closing. Equity Proceeds Paid at Lease Up $4,405,184* Equity Proceeds Paid at 8609 $1,132,762* *All numbers rounded to nearest dollar. The Pay-In Schedule in the Equity Proposal refers to "permanent loan closing" as the moment when Capital Contribution #3 will be made "available." The Equity Proposal does not, however, define or discuss permanent loan closing, and, to the point, does not specify when it is expected to occur. Of potential relevance in this regard is a letter from JP Morgan Chase Bank, N.A. (the "Chase Letter"), which is included as Attachment 15 to Vistas' application. Unlike the Equity Proposal, the Chase Letter, if not the last word on the subject, at least sheds some light on the timing of the crucial milestone, i.e., "permanent loan closing." Although the Chase Letter is full of escape clauses and does "not represent a commitment" or "an offer to commit," the document nevertheless outlines the terms for the closing of the proposed construction and permanent loans. The proposed terms call for the payment of a $10,000 Conversion Fee at permanent loan closing and impose preconditions for the conversion from the construction loan to the permanent loan, which include a requirement that there have been "90% economic and physical occupancy for 90 days." No evidence was presented as to the meaning of this language, but the term "physical occupancy" is clear and unambiguous——and it plainly happens after receipt of a final certificate of occupancy, which, under the RFA, is the end point of the construction phase. Winchester Place argues that the Pay-In Schedule casts doubt on whether the entire amount stated in the Equity Proposal's line-item entry for "Equity Proceeds to be Paid Prior to Construction Completion" ($7,048,295) will be paid before the final certificate of occupancy is issued. According to Winchester Place, the Pay-In Schedule shows that the third capital contribution will be paid after construction completion because the second capital contribution, which is the earlier of the two, is due to occur "prior to construction completion." Thus, Winchester Place contends that Vistas' construction financing sources should be reduced by $3,146,560, thereby creating a construction financing shortfall and rendering the Vistas application ineligible for funding. Winchester Place's argument supports FHFC's intended action but is opposed by FHFC in this proceeding. This turnabout on the part of FHFC is the result of FHFC's intended acceptance, as eligible, of the application that Fountains at King's Pointe Limited Partnership ("Fountains") submitted in response to Request for Applications 2018-110 ("RFA 2018-110"). That proposed agency action is relevant because Fountains had attached to its application an equity proposal letter from RBC whose terms and conditions——other than the dollar amounts and (obviously) the applicant's name——are identical to those of the Equity Proposal for Vistas. During the evaluation of applications under RFA 2018-110, which took place at around the same time as the review of applications pursuant to the RFA at issue here, FHFC's scorer determined that Capital Contribution #3 should be included in the amount of equity proceeds to be paid to Fountains prior to construction completion, with the result that Fountains' application, showing a construction funding surplus, was deemed eligible for funding. The Vistas and Fountains applications, competing in separate solicitations, were scored by different FHFC staff members. The evaluator who scored the financial section of Vistas' application sought advice concerning her interpretation of the Equity Proposal, discussing the matter with FHFC's Director of Multifamily Programs and legal counsel at a reconciliation meeting that occurred before the Review Committee convened; this evaluator encountered no resistance to her plan of making a downward adjustment to Vistas' equity funding. The evaluator of the Fountains application did not likewise discuss her scoring rationale and thus received no input or guidance from FHFC's management. Ultimately, however, because each scoring determination belongs to the Review Committee member herself or himself, inconsistent or conflicting results are possible, as these cases demonstrate. Once in litigation, FHFC discovered that it had reached opposite scoring conclusions based on the same material facts. In this proceeding and in the 2018-110 Protests, FHFC has stressed its desire to take a consistent approach to the identical Equity Proposals. To that end, FHFC has reversed course here and argued that, contrary to its intended action, the Equity Proposal provided by Vistas fully satisfies the requirements of RFA; there is no funding shortfall; and Vistas' application is eligible and should be selected for funding. Deeming Vistas' application eligible would achieve consistency, of course, by giving favorable treatment to the applications of both Fountains and Vistas, which are similarly situated as to the Equity Proposal. Naturally, Winchester Place urges that consistency be found the other way around, through the rejection of both applications, or, alternatively, that the inconsistency be tolerated as the price of affording the agency wide discretion in making scoring decisions. In support of its decision to change positions on Vistas' Equity Proposal, FHFC relies upon the following premises: (i) the Equity Proposal plainly specifies, in the line-item entry for "Equity Proceeds to be Paid Prior to Construction Completion," the amount to be paid prior to construction completion; (ii) permanent loan closing does not necessarily have to occur after construction completion; and (iii) the information contained in the Pay-In Schedule is not information that is required by the RFA. The disputes arising from the scoring of the Equity Proposal are solvable as matters of law and therefore will be addressed below.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Housing Finance Corporation enter a final order fully implementing its intended action, as no basis for reversal has been established in this proceeding. DONE AND ENTERED this 16th day of July, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 16th day of July, 2019.
The Issue The issues are as follows: (a) whether Respondent failed to follow applicable policies and procedures in evaluating responses to Request for Proposal P-01-01 ("the RFP"); and (b) whether two of the bidders colluded in filing their proposals.
Findings Of Fact On October 15, 2003, Respondent, through the City's procurement office, issued the RFP for the purpose of obtaining professional services for technical assistance in the administration of Respondent's DBE program. The City received six responses to the RFP including proposals from the following: (a) Petitioner, a joint venture/strategic partnership with Carroll & Carroll Consulting, Inc. and Tracking Systems of America, Inc.; (b) a joint venture consisting of Renaissance Design Build Group of Jacksonville, Inc., OTAi, Inc., and J & W. Consultants of Jacksonville, Inc. (Renaissance); and (c) Anderson & Associates, P.A. with OK Consulting Agency, Inc. as a sub-consultant (Anderson). Pursuant to the RFP as amended, the bidders had to deliver their proposals to the City's Department of Administration and Finance, Procurement and Supply Division, by November 14, 2003. The City placed a date-stamp on the proposals to establish the date and time of their receipt. The City also maintained a list/sign-in sheet of each proposal timely delivered, whether by mail or hand delivery. Anderson was the third bidder listed on the sign-in sheet. J & W Consultants of Jacksonville, Inc., representing the Renaissance joint venture, was the fifth bidder listed on the sign-in sheet. Petitioner was the last bidder listed on the sign-in sheet. The fact that J & W Consultants of Jacksonville, Inc., signed the sign-in sheet on behalf of its joint venture or was listed on the sign-in sheet instead of Renaissance Design Build Group of Jacksonville, Inc., does not mean that the Renaissance proposal was not timely or properly filed. Any member of a joint venture could have signed the sheet or been listed on the sheet indicating the City's timely receipt of a joint venture proposal. The RFP stated that the proposals could not include more than 25 pages. There is no evidence that any of the proposals, including the Renaissance and Anderson bids, contained more than 25 pages. After receiving the proposals, Respondent's evaluation committee reviewed them, using a matrix to rank each bid in each of 11 categories. The evaluation committee did not make hand- written notes, positive or negative, regarding the proposals of Renaissance and Anderson. The committee did make notes regarding four of the proposals including Petitioner's bid. Specifically, the committee noted the following about Petitioner's bid: (a) no verification of financial stability information; (b) tracking the project vs. tracking payment; (c) past record of professional accomplishments not related to requested services; and (d) price, $752,000. There is no requirement for the evaluation committee to make notes during the evaluation process. Respondent did not violate its policies, procedures, laws, rules, or regulations by not making notes on all proposals or by making notes only on the four bids that received the lowest scores. The matrix used to evaluate the proposals was more than sufficient to differentiate the merits of each proposal in all 11 categories. Based on the overall scores, Respondent's decision to rank Renaissance in first-place, Anderson in second- place, and Petitioner in third-place was not clearly erroneous. The evaluation committee did not request any of the bidders to make oral presentations. The decision to request bidders to make oral presentations is discretionary with the evaluation committee. There is no evidence that the committee abused its discretion in not requesting the top three bidders, including Petitioner, to make oral presentations. The RFP as amended requires that bidders complete and file the following forms with each proposal: (a) Conflict of Interest Certificate; (b) Public Entity Crime Information; Certification of Eligibility; (d) Non-collusion Bidding Certification; (e) Public Official Disclosure; (f) Certification Regarding Lobbying; and (g) Certification of Primary Participant Regarding Debarment, Suspension, and Other Responsibility Matters. The proposals of Renaissance, Anderson, and Petitioner contained all of these required forms. The RFP as amended also contains forms that contractors and subcontractors are required to file in order for them to participate in Respondent's DBE program. These forms include the following: (a) Bidder's List; (b) Intent to Perform Contract as Subcontractor; (c) Declaration of Prime Contractor; Contractor's Request for Payment; and (e) Schedule of Subcontractors. The above-referenced forms clearly apply to the DBE program for which the winning entity will provide technical assistance. The record is not clear whether the forms also apply to the RFP. In any event, the forms could possibly apply to the instant proposals only if the bidders intended to use subcontractors or sub-consultants in performing the contract. The Renaissance proposal includes only the three members of the joint venture and does not include the participation of any subcontractors or sub-consultants. The Anderson proposal includes all the necessary forms for the participation of one sub-consultant. Petitioner's proposal includes all the forms listing its joint venture members/partners as sub-consultants. The RFP specifically states that consultants must have a local office and experience providing consulting or small disadvantaged minority business support for two or more years. The RFP does not require consultants to be certified as a DBE. Petitioner did not file a timely challenge to the qualifications for consultants as set forth in the RFP. Anderson's proposal on its face indicates that it is properly certified as a DBE by the City with a pending application for DBE certification by Respondent. Anderson's sub-consultant is certified as a DBE by the City and recognized by the UCAP to include DBE certification by Respondent. Anderson's proposal included the necessary forms to establish the DBE certification of its sub-consultant. The Renaissance proposal on its face indicates that the joint venture is made up of three certified minority-owned businesses. At the time that Renaissance submitted its proposal, Respondent had certified at least one joint venture member, OTAi, Inc. as a DBE consultant. Because Renaissance was a joint venture and did not intend to use subcontractors, it was not necessary to include forms in its proposal that are applicable only to subcontractors. The Renaissance and Anderson proposals show that they meet the RFP's experience requirements for consultants. There is no evidence to the contrary. The RFP includes a form for bidders to use entitled Cost or Price Summary Format for Jacksonville Transportation Authority. However, this form is not included as a mandatory form to be completed and filed with each proposal. Instead, the form is merely a suggested format. Anderson and Petitioner elected to use the suggested cost summary form in their proposals. They capped the cost of the contract at $123,528 and $752,000, respectively. Renaissance did not use the cost summary form. Instead, Renaissance listed all project tasks and designated specific team members to perform each task. Next, Renaissance provided Respondent with cost detail by estimating the total number of hours required to complete each project task by the designated team members. Renaissance then provided a billing rate for each team member. Even though Renaissance did not set forth a cap for the cost of its proposal, it provided more than enough information for Respondent to determine the cost by multiplying the number of hours for each task, times the billing rate for each team member performing that task. During the hearing, Petitioner's witness was able to calculate the cost of the Renaissance proposal, which was considerably higher than the proposals of Anderson and Petitioner. A member of the evaluation committee testified that she scored the cost element of Renaissance's proposal rather low (five out of a possible ten points). Even so, the greater weight of the evidence indicates that Renaissance's cost detail was not ambiguous and that the cost detail provided by all six proposals was responsive to the RFP. In a letter dated December 24, 2003, Respondent advised the City's procurement office that all six proposals were responsive to the RFP. Respondent listed Anderson, Petitioner, and Renaissance in alphabetical order as being the most interested, available and qualified proposals. In a letter dated January 8, 2004, the City's procurement office advised Respondent that it agreed with Respondent's decision regarding the three highest-ranked proposals. The letter stated that Respondent could proceed with fee and contract negotiations with the firm of its choice. Petitioner subsequently learned that it was the third- place proposal. Petitioner then requested copies of the Renaissance and Anderson proposals from the City's procurement office. In making those copies, the City's staff erroneously included an RFP-addendum acknowledgment from the Renaissance proposal in the copy of the Anderson proposal that the City provided to Petitioner. This clerical error is not evidence that Renaissance and Anderson engaged in collusion when filing their proposals. Additionally, it does appear that some participants in the Renaissance and Anderson proposals may have worked on the City's arena and ballpark project. However, there is no evidence that they worked on that project at the same time or even knew about the other's involvement with the project. In fact, there is no evidence that participants in the Renaissance and Anderson proposals knew of each other's existence until Respondent issued and Petitioner challenged the instant RFP.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent issue a final order dismissing the Detailed Formal Written Bid Protest. DONE AND ENTERED this 17th day of June, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2004. COPIES FURNISHED: Linda J. Platte Don Platte Florida Bureau of Legal Investigations 101 East Union Street, Suite 401 Jacksonville, Florida 32202 David Cohen, Esquire Jason R. Gabriel, Esquire Edwards and Cohen Attorneys at Law Six East Bay Street, Suite 500 Jacksonville, Florida 32202 Michael Blaylock, Executive Director Jacksonville Transportation Authority 100 North Myrtle Avenue Jacksonville, Florida 32203
The Issue The issue for determination is whether Respondent's intent to award a contract for bridge-tending services (RFP DOT 92/93 2088 REBID) to Intervenor constitutes fraudulent, arbitrary, capricious, illegal or dishonest action.
Findings Of Fact The parties stipulated to findings of fact set forth in paragraphs 1.-12., below. Stipulated Facts Respondent issued the RFP for bridge-tending services on May 14, 1993. Proposals submitted in response to the RFP were opened on June 16, 1993. Proposals were submitted by five firms, including Petitioner and Intervenor. All proposals were determined at the time to be responsive. A Technical Review Committee (TRC) was appointed to review the technical portion of the proposals. The three members of the TRC were Alan Hyman, J. L. Gillis, and Yingyong Sujjavanich. The members reviewed the technical portion of the proposals on June 17, 1993. The evaluation forms completed by the TRC and a summary score sheet were delivered to Respondent's purchasing office on the morning of June 18, 1993. The price proposal was evaluated by Respondent's purchasing office. The price evaluation of each proposal was performed by applying a formula which compared the submitted price quotations. After the scores for the technical proposal and the cost proposals were totalled, it was determined that Intervenor's proposal had earned the highest number of points. This result was presented to Respondent's District 2 Executive Committee and a recommendation was communicated by the Purchasing Director to award the RFP to Intervenor. The Executive Committee accepted the recommendation and directed that the contract be awarded to Intervenor. On June 18, 1993, at 4 p.m., the bid tabs were posted noticing Respondent's intent to award the contract to Intervenor. On or about July 6, 1993, Petitioner requested a meeting with Respondent's representatives regarding the RFP. That meeting was held on July 9, 1993. At the meeting, Petitioner raised an issue regarding an arithmetic error in the scoring of the technical proposals. Intervenor remained the proposer with the highest number of points. However, another proposal formerly ranked as number two was lowered to number three status and Petitioner, previously ranked number three, was raised to number two rank. On July 12, 1993, Respondent posted an amended bid tab indicating its intent to award the contract to Intervenor. Other Facts Respondent chose to score the bid pricing, a non- subjective task, in Respondent's District 2 office. Technical portions of the proposals were reviewed by the TRC, comprised of members from Respondent's District 5 office. This unusual step was taken by Respondent in order to reduce prejudice to any proposal in view of previous accusations made against District 2 employees. Bud Rosier, Respondent's employee, has overall responsibility for bridge determination that District 5 employees chosen as committee members were qualified to evaluate the proposals. Each response to the RFP contained a technical proposal and a price proposal. Intervenor's technical proposal received 1.33 points less than Petitioner's technical proposal. The price proposals, as noted above, were scored in accordance with a mathematical formula that compares price proposals to each other and does not take any subjective factors into consideration. Intervenor was awarded 5.55 points, compared to Petitioner who received no points for a proposal more than $140,000 higher for the initial year of the contemplated contract. Although members of the TRC were not given any background information by Respondent regarding the competing proposals, beyond that contained in the submitted bid packages, no information was withheld from the committee. The members were given adequate time to review the proposals and do any desired independent background checking regarding past performance of any proposer, although no requirement in the RFP mandated such a background review. At least one of the TRC members, Sujjavanich, chose not to independently research past performance of the Intervenor. No evidence was offered at hearing with regard to whether the other two members independently researched any of the proposers' past performances. Even if review of past performance, apart from the materials submitted by the proposers, were required by provisions of the RFP, failure of the evaluators to accomplish that task would result only in the loss to Intervenor of the 3.66 points awarded for past performance and Intervenor, with a remaining total of 81.89 points, would remain the highest ranked proposer. In view of the objective process used to arrive at the results of the evaluation of the prices of the competing proposals, there was no need to provide this information to the members of the TRC who were doing the technical proposal evaluation. Although the RFP provided that the TRC would be given such results, the failure of Respondent's personnel to provide this information to the evaluators could not have made any difference in the final result since the committee, using the objective price evaluation criteria, would have arrived at the same result as the purchasing office on cost scores. The admitted failure to provide the superfluous cost information to the TRC is inadequate to show that such omission resulted in prejudice to the final scores of any of the competing proposals and must be considered to be only a minor variation from the RFP by Respondent. Contrary to Petitioner's allegations, there is no competent substantial evidence to support any finding that the members of the TRC (Hyman, Gillis, and Sujjavanich) did not possess required background, experience or professional credentials adequate for evaluating proposals for bridge-tending services. All three members of the TRC were familiar with the RFP, attachments to the RFP, bridge-tending procedures and bridge-tending qualification procedures. There is no competent substantial evidence to establish that Intervenor's proposal is not financially feasible. Proposed utilization of 72 bridge-tenders by Intervenor for a total price of $673,333.44 does not mean that 72 bridge-tender positions would be established or filled, or that the positions would be paid at the rate proposed by Petitioner of $8.40 per hour. The evidence establishes that a proposer would need an optimum number of bridge requirements.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered granting the award of the bid in RFP DOT 92/93 2088 Rebid to Intervenor. DONE AND ENTERED this 4th day of October, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4271BID The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-12. Accepted. 13.-16. Rejected, relevancy. 17. Accepted. 18.-19. Rejected, relevancy. 20.-25. Accepted. 26.-27. Rejected, cumulative. 28. Rejected, credibility. 29.-33. Rejected, relevancy. 34.-35. Accepted. 36.-37. Rejected, argumentative and mischaracterization. 38.-46. Rejected, subordinate to HO findings. 47.-51. Rejected, relevancy. Intervenor's Proposed Findings. 1.-2. Rejected, cumulative. 3.-4. Accepted. 5.-6. Rejected, unnecessary. Rejected, cumulative. Rejected, unnecessary. Rejected, argumentative. 10.-11. Rejected, unnecessary. 12.-13. Adopted by reference. 14.-16. Accepted, but not verbatim. 17.-22. Adopted by reference. 23. Rejected, unnecessary. 24.-30. Adopted, but not verbatim. 31. Rejected, narrative. 32.-35. Rejected, cumulative. Respondent's Proposed Findings. 1.-11. Adopted. 12. Rejected, unnecessary. 13.-17. Adopted, not verbatim. 18.-19. Rejected, cumulative. 20.-22. Adopted. 23. Rejected, recitation of RFP. 24.-26. Adopted. 27. Rejected, recitation of RFP. 28.-29. Adopted in substance. COPIES FURNISHED: Thomas Cassidy, III, Esquire. John O. Williams, Esquire Renaissance Square 1343 East Tennessee Street Tallahassee, Florida 32308 Carolyn S. Holifield, Esquire Mark D. Tucker, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwanee Street Tallahassee, Florida 32399-0458 Timothy G. Schoenwalder, Esquire 204-B South Monroe Street Tallahassee, Florida 32302-3068 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399 Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building # 562 605 Suwannee Street Tallahassee, Florida 32399
Findings Of Fact The Respondent, Robert E. Hough, holds Florida Teacher's Certificate Number 313219, which is a Rank III certificate covering the area of substitute teaching. From September, 1975, until his dismissal on May 20, 1982, the Respondent had been employed with the Duval County School System as a substitute teacher. He was never employed in a full-time position. During the times relevant to this proceeding, the Respondent was employed with First Federal Savings and Loan Association of Jacksonville, as a manager of the Mandarin Branch, until his termination on May 29, 1981. While the Respondent was employed with First Federal Savings and Loan, one of his associates was Mr. Frazier Dughi. Mr. Dughi was employed with First Federal Savings and Loan as an officer in the Real Estate Department until he left that employment in August, 1980. On or about October 29, 1981, Mr. Dughi secured a loan in the amount of $4,500 from First Federal Savings and Loan, and assigned a certificate of deposit he held with First Federal Savings and Loan as collateral. This loan was obtained for the purpose of purchasing an automobile which Mr. Dughi had negotiated to buy from a private individual. After Mr. Dughi had inspected the automobile and decided that it was not to his liking, he met the Respondent on his way home. He had known the Respondent through their employment and had developed a friendship with him. The Respondent went to Mr. Dughi's home where Mr. Dughi informed him what had occurred regarding the automobile purchase. In an effort to avoid any interest expense on the loan, Mr. Dughi gave to the Respondent the $4,500 check from First Federal Savings and Loan, which represented the loan proceeds, and asked the Respondent to deposit it as repayment of the loan through the Respondent's Mandarin Branch office. Mr. Dughi first became aware that his loan had not been repaid approximately 18 months later when he received a notice from First Federal Savings and Loan that he must pay $1,000 in interest in order to renew the loan. In response to this notice, Mr. Dughi contacted Don Perry, a vice-president of First Federal Savings and Loan, and requested the matter be investigated. Mr. Perry testified and produced the original documents involving the transaction between Mr. Dughi and First Federal Savings and Loan. The check initially payable to Mr. Dughi in the amount of $4,500 shows that part of the initial endorsement was removed from the check and subsequently signed and endorsed by the Respondent, as follows: "Pay to the Order of Robert E. Hough". The check was deposited at the Respondent's Mandarin Branch office, into the Respondent's personal account. Subsequently, a check was drawn on the Respondent's account in the amount of $4,200 and deposited in an account with the American National Bank which was owned by the Respondent. At no time did Mr. Dughi authorize the Respondent to deposit his funds or to convert the funds to his personal use. Hazel M. Smith is an individual who maintained a savings account with the Mandarin Branch of the First Federal Savings and Loan Association. On or about November 15, 1979, the Respondent entered into a transaction with Mrs. Smith in which he obtained $10,000 from her account on his representation to her that a special program was being offered to certain preferred customers of First Federal Savings and Loan. However, the money from Mrs. Smith's account was immediately deposited into the personal account of the Respondent. He then obtained a loan in the amount of $10,000 from First Federal Savings and Loan, using the deposit from Mrs. Smith's account as collateral. Thereafter, monthly payments in the amount of $132.16 drawn on the Respondent's account at the American National Bank were deposited in Mrs. Smith's account at First Federal Savings and Loan, in keeping with the terms of the agreement in which Mrs. Smith was to receive repayment over a ten-year period at a ten percent interest rate. As a result of this transaction between the Respondent and Hazel Smith, the Respondent was arrested, and by information filed on October 29, 1981, he was charged with grand theft in violation of Section 812.014, Florida Statutes. On May 3, 1982, the Respondent pled guilty to this criminal charge. Thereafter, the Respondent was adjudicated guilty and sentenced to Florida State Prison for a period of 30 months. Mr. Perry testified regarding the investigation that had been conducted by First Federal Savings and Loan concerning a check "kiting" scheme involving the Respondent, going back to April 25, 1978. This scheme continued until the Respondent resigned from First Federal Savings and Loan in May, 1981, by which time it was determined that the Respondent had secured the sum of $20,100. The Respondent had "kited" checks through three financial institutions, First Federal Savings and Loan, Atlantic National Bank, and the American National Bank. The scheme was uncovered on May 27, 1981, when a check for $20,100 was returned because of insufficient funds. As a result of these transactions, the Respondent was arrested and an Information was filed by the Office of the State Attorney on October 29, 1981, charging the Respondent with grand theft in violation of Section 812.014, Florida Statutes. On May 3, 1982, the Respondent pled guilty to these offenses; subsequently he was adjudicated guilty and sentenced to a five- year period of probation to be served consecutive to the prior 30-month sentence in the Florida State Prison. The Respondent's employment with the Duval County School System was terminated on May 20, 1982.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Teaching Certificate Number 313219 held by the Respondent, Robert Edwin Hough, be REVOKED permanently. THIS RECOMMENDED ORDER entered this 25th day of July, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1983. COPIES FURNISHED: L. Haldane Taylor, Esquire 1902 Independence Square Jacksonville, Florida 32202 Mr. Robert E. Hough Post Office Box 229 Lawtey, Florida Donald L. Greisheimer Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301
The Issue The issue for consideration in this case is whether Respondent's license as a real estate salesperson in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Florida Real Estate Commission was the state agency responsible for the licensing of real estate professionals, including salespersons, and the regulation of the real estate profession in this state. Respondent was licensed as a real estate salesperson and held license number 0464001. On November 10, 1992, Respondent, was a partner with his three brothers and one other individual in Mars Construction Company, a building contracting firm in the Tampa area. His primary duties with the firm consisted in sales of the company's buildings, and office management. He was not actively engaged in the practice of the real estate profession in any other capacity. At the time, as a result of circumstances arising in the aftermath of the hurricane which had recently struck in South Florida, the company was experiencing financial difficulties. At some point during the earlier portion of the year, Respondent and his then neighbor, Mr. Rivera, engaged in a discussion regarding a possibility of a loan from Rivera which would help with the company's financial plight. There is a difference in the testimony of Respondent and Mr. Rivera as to how this discussion came about. Mr. Rivera contends that Respondent approached him concerning the possibility of Rivera lending money to the Martinez’s. Respondent contends that Mr. Rivera, a retired gentlemen in his 80's, approached him and suggested that because he, Rivera, was only earning approximately 4 percent on his certificate of deposit investments, perhaps he could lend money to Respondent at the 12 percent interest rate which, it would appear, was the rate paid by the company to other private investors. Both agree that the discussion regarding a loan, regardless of who initiated it, took place in the yard outside the houses of the parties when Respondent was the next-door neighbor of Mr. Rivera. Respondent moved from that location in March 1992. Respondent also contends that he and one or more of his brothers, all of whom Mr. Rivera knew, took Mr. Rivera out to visit the sites of several of their construction projects, one of which was a duplex located at 6901 North Blossom Avenue, in Tampa. Mr. Rivera categorically denies ever having gone to visit any of the properties. Regardless of who approached whom regarding the initiation of the loan, or whether Mr. Rivera visited any of the company properties, the evidence is clear that Mr. Rivera agreed to lend the money and the loan was made by him to Respondent. When a $16,000.00 certificate of deposit owned by Rivera matured, Rivera gave that amount to Respondent on or about November 13, 1992, and received a promissory note in that amount. Slightly more that one month later, Rivera gave Respondent another $10,000.00 when a second certificate matured. At that time Respondent, along with his brother and business partner, Victoriano Martinez, executed a promissory note in the amount of $26,000.00, payable to Ishmael Rivera and Margaret Rivera, in trust for Alice Belin and Lorraine Tornes, the Riveras’ daughters. This promissory note was back dated to November 10, 1992, the date of the original loan of $16,000.00, and the note for that lesser amount was destroyed. The second note, in the amount of $26,000.00, also reflected that it was secured by a mortgage of even date on the Blossom Street property, but no such mortgage was ever prepared or executed. Respondent admits that no such mortgage was ever contemplated or issued, and Mr. Rivera agrees that there was no discussion of, nor did he expect, a mortgage on the property. The two checks reflecting the loan by Mr. Rivera were deposited to the account of Mars Construction with the Key Bank of Florida. The loan called for monthly payment of interest only in the amount of $260.00 each, and provided for a final payment of the entire principal amount on November 10, 1994. After the note was issued, Mr. Rivera went to the company office each month to pick up his interest checks. After several interest payments were made with checks drawn on the account of Mars Construction, some of which were not signed and others some of which were signed by Jesus Martinez, some by Respondent, some by Jose Martinez, and some by Victoriano Martinez, Mars Construction filed for bankruptcy and ceased making interest payments on the loan. Mr. Rivera was listed as a creditor of Mars Construction and the obligation to him, evidenced by the unsecured promissory note, was discharged. Respondent was not engaged in the practice of real estate at the time of or in any particular regarding the loan. He was acting in an individual capacity either for himself or on behalf of the company as a part owner thereof. The two checks reflecting the loan by Mr. Rivera were deposited to the account of Mars Construction with the Key Bank of Florida. Mr. Rivera contends that the loan he made to Respondent was a personal loan to Respondent and not to the company. Therefore, even after the bankruptcy by Mars, Mr. Rivera and his wife filed suit in Circuit Court against Felix and Victoriano Martinez, the two individuals who had signed the promissory note. The note does not make reference to Mars Construction as the borrower/obligor, but instead indicates Felix and Victoriano Martinez as the borrowers. In this regard, and regarding the listing of the Blossom Street property as security, Respondent contends that the note was prepared from a form in the company computer which was based on a generic form found in an office supply store. Though Respondent contends the loan was to the company, and though the interest payment checks were drawn on a company account, it is found that Respondent and Victoriano were personally liable to the Riveras as a result of their note. Neither filed an Answer to Mr. Rivera’s Complaint, and Default Final Judgment in favor of the Riveras was entered by the court on April 25, 1995. Because of the suit by Mr. Rivera, and because of the contingent liability he faced as a result of the company’s bankruptcy, Respondent subsequently filed a personal bankruptcy in which the judgment by the Riveras was listed as a claim. No payments, other than those made as interest by the company before its bankruptcy, were ever made by Respondent, or any other entity on his behalf, to the Riveras whose claim for $26,000 remains unsatisfied. Mr. Rivera remains convinced that Respondent used all or a portion of the loan in question for the purchase of the new house he now occupies. Records produced by Respondent, however, fail to support that claim. Respondent was able to trace the money expended on his new residence to a small amount of cash realized from the sale of his former residence, and to the proceeds of a private construction loan which was subsequently satisfied by a new loan from a financial institution to which Respondent remains obligated. Mr. Rivera, in his complaint to the Commission, alleged that Respondent is at least part owner of land in the Florida Keys, and is involved in a business in Miami. No supporting evidence was produced to confirm or validate these claims, and they are found to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order in this case finding Respondent guilty of acting in bad faith in a business transaction, reprimanding him, and placing his salesman’s license on probation for a period of one year under such conditions as the Commission deems appropriate. DONE AND ENTERED this 20th day of October, 1997, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1997. COPIES FURNISHED: Geoffrey T. Kirk, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Ronald R. Swartz, Esquire 18045 Jorene Road Odessa, Florida 33556 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32308-1900
