Findings Of Fact Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact: In order for Petitioner to obtain a license as a general contractor in Florida, he is required to successfully complete a certification examination. The exam is administered by the Department of Professional Regulation. The questions on the exam are prepared from specific reference materials disclosed to the applicants, generally accepted industry procedures and standard field knowledge. In June of 1989, Petitioner took the exam and received a passing grade on all parts of the exam except Part II for which he received a grade of 67. A score of 69.1 was necessary for Petitioner to receive a passing grade on Part II. Each of the challenged questions are worth 2.5 points. Therefore, if Petitioner is given credit for either of the questions, he will achieve a passing score. The first question challenged by Petitioner, question 13, required the exam taker to determine the labor cost for erecting concrete forms given certain assumptions. The diagram provided in connection with the question indicated there was an elevator shaft which included two elevators and, therefore, two elevator door openings. In calculating the correct answer, an applicant was required to deduct the surface area corresponding to both door openings. In calculating his answer, the Petitioner only deducted for the area corresponding to one elevator door. Petitioner contends that the question is ambigious because it does not specifically direct the exam taker to deduct for both elevator doors. However, the question specifically states to "deduct for door openings". There is no ambiguity in the question and the Petitioner's answer was incorrect. The only right answer to the question was the answer deemed correct by the Respondent in grading the exam. While Petitioner also challenged question 32, the only testimony presented at the hearing indicated that the answer used by Respondent in grading the exam was correct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Petitioner's request that his June, 1989 examination for a general contractor's license be regraded be DENIED. RECOMMENDED this 21st day of February, 1990, in Tallahassee, Florida. J. STEPHEN MENTON 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 21st day of February, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6139 The Respondent submitted a Proposed Recommended Order including proposed findings of fact and conclusions of law. The Petitioner submitted a letter which contains a number of paragraphs of mixed findings of fact and conclusions of law which have not been numbered thoughout. To the extent that the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact Prosposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted or Reason for Rejection. The Petitioner's letter sets forth his arguement as to why the question was ambigious and not properly structured. Petitioner's arguements are rejected and subordinate to Findings of Fact 4 and 5. The Respondent's Proposed Findings of Fact Prosposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 2. Included in the preliminary statement. Included in the preliminary statement. Included in the preliminary statement. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5 and 6. Included in the preliminary statement and adopted in substance in Findings of Fact 6. COPIES FURNISHED: E. Harper Field, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Eli Buzaglo 6569 Racquet Club Drive Lauderhill, Florida 33319 Fred Seely, Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue in the case is whether the Manatee County School Board’s proposed contract award to General Elevator Company for maintenance of elevator and wheelchair lifts meets the requirements of law.
Findings Of Fact In early July 1998, the Manatee County School Board issued a Request for Quotation (RFQ) No. 3400, seeking to contract for provision of elevator and wheelchair lift maintenance services. The vendor’s proposals were due by July 9, 1998. The RFQ sets forth a number of "technical specifications" intended to meet various concerns of the School Board. The School Board was concerned with the response time for emergency service repairs. Technical specification no. 6 states that a "[v]endor must have a physical office located in Manatee County with adequate storage for replacement parts inventory." Technical specification no. 7 in relevant part states that a "[v]endor shall respond to reports from the School Board for unscheduled service for repairs or corrections within four (4) hours and emergency reports within one (1) hour of the initiation of such notice." Two vendors submitted proposals in response to the School Board's request: General Elevator Company (General) and Miami Elevator Company (Miami). General's proposal listed a Clearwater, Florida office address. Clearwater is in Pinellas County. Miami Elevator Company's proposal listed a Bradenton, Florida office address. Bradenton is in Manatee County. General's bid was $14,040. Miami's bid was $15,750. After the bids were opened, Miami complained to Sheryl Rhodes (an employee of the School Board's purchasing department) that General's Clearwater office did not meet the RFQ's specification. Ms. Rhodes discussed the issue with Art Johns, a general sales engineer. In response to the discussion, Mr. Johns submitted a letter on behalf of General dated July 20, 1998, to Ms. Rhodes. The letter states that the address of the "Bradenton Shop" is "2300 Whitfield Park Drive, Unit H14, Bradenton, Florida." The address identified in the July 20 letter is not an office. The location is a garage-sized rental space located in a mini-warehouse storage facility. There is no phone service or mail delivery to the facility. There are no General employees working in the location on a regular basis. There is no local phone number to General. The Bradenton phone directory lists a toll-free number in the "yellow pages." A telephone call to General is routed to the Clearwater office and relayed to technicians working from their vehicles. Parts used to repair and maintain elevators are stored at the warehouse address. When the issue of office location was raised, an employee of the School Board attempted an unscientific survey to ascertain the response level General could provide. She called the General toll-free number and advised that she would be at the warehouse in 30 minutes. When she arrived, two technicians were present to meet her. The technicians opened the warehouse and permitted her inside. She observed a desk, a chair, and assorted parts and equipment apparently used to maintain elevators and lifts. There is no evidence as to the review of the proposals by the evaluation committee. Apparently the committee determined that the General bid met the requirements, and a proposed award was announced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Manatee County School Board award the contract pursuant to Request for Quotation No. 3400 to Miami Elevator Company. DONE AND ENTERED this 23rd day of November, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1998. COPIES FURNISHED: S. Gene Denisar Superintendent of Schools School Board of Manatee County Post Office Box 9069 Bradenton, Florida 34206-9069 Mark Campagnano District Sales Manager Miami Elevator Company 7481 Northwest 66th Street Miami, Florida 33166 Sandra Stevens Purchasing Supervisor Manatee County School Board Post Office Box 9069 Bradenton, Florida 34206-9069 Art Johns Sales Engineer General Elevator Company 12739 59th Way North Clearwater, Florida 34620
Findings Of Fact According to respondent's stationery, Respondent's Exhibit No. 2, MacTavish Furniture Industries is one of six operating divisions of Aaron Rents, Inc., a (Georgia) corporation headquartered in Atlanta. Respondent regularly employs more than 15 people in Florida: The MacTavish Furniture Industries plant in Quincy has 60 to 100 employees each shift. When petitioner Wayne Warren, who is black, began working for MacTavish Furniture Industries in Quincy, Florida, on April 10, 1981, his job was to place lumber on a conveyor belt. He was paid minimum wage. After four or five years he moved to the warehouse, also known as the "trim and pack" department. Mr. Warren received a raise of $0.25 per hour when he went to work at the warehouse, where his chief responsibility was operating a Zimmerman suction lift. He used a boom to transfer furniture, inter alia, between a conveyor belt and the "finishing line." When the line was not operating, his duties sometimes included packing furniture and cleaning up. If, as sometimes happened, petitioner reported for work intoxicated, singing loudly and getting in fights, he was sent home, and somebody else had to fill in. A drunken lift operator created unnecessary danger. Aside from the suction lift itself, saws, routers, and other equipment in the vicinity posed hazards for a person not fully in command of his faculties. Clarence O'Neal, the black man who was Mr. Warren's immediate supervisor, "eased him out" on several occasions to his sister's house so he could sober up in safety. But on March 27, 1989, petitioner was unwilling to leave work. When Mr. O'Neal saw petitioner (after he heard "a commotion 1,000 feet away"), he ordered that the line be shut down, and directed petitioner to leave. Mr. Warren replied, "Kiss my ass," and Mr. O'Neal discharged him on the spot. Despite this outburst and recurring bouts with alcohol, Mr. Warren was (and remains) popular with his supervisors and co-workers alike, black and white. Several people urged that he be rehired, including Johnny O'Neal, the black finishing foreman who has known petitioner all his life, and Viola Bell. In April of 1989, Hershel Shepard, the white plant superintendent who had hired petitioner originally, agreed to rehire him. At least before his original termination, petitioner's pay and responsibility did not increase as rapidly as some co-workers, but the evidence did not show disparities on account of race. Mr. Warren returned to work at the same wage he had left. Before a plant-wide "blanket" raise of $0.20 per hour in May of 1990, he had already received a raise of $0.25 per hour. As people were clocking in at about 7:25 a.m. on March 26, 1990, Willie Frederick, a night watchman whose shift was ending, concluded that petitioner Warren had been drinking heavily. He had to pay close attention to make out what petitioner was saying, and petitioner "just couldn't balance himself." Another co-worker, Lonnie MacMillan of Gretna, could smell alcohol and told Mr. Warren not to go into the factory in his condition. Petitioner persisted noisily, punching in his time card, and eventually attracting Hershel Shepard, who told him he was "in pretty bad shape" and "better go home and get straightened up." When Mr. Warren insisted he could work, Mr. Shepard asked Mr. Frederick to take him home, and told Mr. Warren to go home so he "wouldn't have to fire him." At this point, Mr. Warren placed his hand on Mr. Shepard's chest and said, "OK, fire me, mother fucker." Mr. Shepard obliged. C. J. Wilford filled the vacancy Mr. Warren's departure created. Like the man who now holds the job, Mr. Wilford, who has since died from a gunshot, was black.
Recommendation It is, accordingly, recommended that the FCHR deny the petition for relief. RECOMMENDED this 10th day of January, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II 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 10th day of January, 1992. COPIES FURNISHED: Wayne Warren Route 5, Box 76-B Quincy, FL 32351 Keith C. Groen 1100 Aaron Building 3001 North Fulton Drive Atlanta, GA 30363-0001 Ronald M. McElrath, Exec. Director Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, FL 32399-1570
The Issue Whether Miami-Dade Community College (hereinafter referred to as the "College") should sustain Petitioner's challenge to the Evaluation Committee's recommendation to award the contract advertised in Request for Proposal 956-34 ("Aviation Program Flight Training Provider, Kendall-Tamiami Executive Airport, Homestead Campus") to Intervenor, as the proposer submitting the proposal considered to be "in the best interest of the College?"
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The College offers an academic program of flight instruction to its students. Such instruction is provided by independent contractors under contract with the College. Petitioner, a Florida corporation, provided such instruction from January 1, 1992, to December 31, 1995, pursuant to an agreement with the College that was executed on November 26, 1991, and amended July 28, 1995. 1/ Through Request for Proposal 956-34, entitled "Aviation Program Flight Training Provider, Kendall-Tamiami Executive Airport, Homestead Campus" (hereinafter referred to as the "RFP"), the College requested the submission of proposals from prospective providers interested in providing students of the College with flight training instruction at Kendall-Tamiami Executive Airport. The College's Director of Purchasing, Linda Pagliaro, sent the following letter to prospective providers along with the RFP: The College is accepting proposals from flight training providers to provide flight training instruction to students of Miami- Dade Community Colleges's Aviation Program. This proposal shall be submitted on the form(s) which are included in this package and returned in the enclosed envelope. The College shall evaluate all proposals submitted and shall award the contract for the proposal which the College determines to be in its best interest. The completed proposal shall be submitted to the Purchasing Dept., Room 9254, Miami-Dade Community College, 11011 S.W. 104 Street, Miami, FL 33176, before opening time of 3:00 p.m. on October 26, 1995. Proposals received after this opening time will be returned to the vendor unopened. Vendors may attend a pre-proposal conference, to be held October 17, 1995, at 9:00 a.m., at the Kendall Campus, 11011 S.W. 104 Street, Room 9254, Miami, Florida. The College reserves the right to accept any proposal deemed to be in the best interest of the College, to waive any irregularities in any proposal, and may reject any and all proposals. Any questions regarding this proposal may be directed to Mr. Edward Vasquez, Buyer, at (305) 237-2231. The College's "intent" in issuing the RFP was explained as follows in Section 1.0 of the RFP: The intent of this Request for Proposal is to obtain an agreement with a flight training provider to provide flight training instruction at the Kendall-Tamiami Executive Airport for students of Miami-Dade Community College. Provider must currently at at least one location possess a FAAR Section 141 Pilot School Certifi- cate for Flight and Ground (see Section 7.4.4). The term of the Contract shall be for an initial period of two years. By written agreement of the parties, the agreement may be extended for three additional one year terms. Flight training providers may propose service for Kendall-Tamiami Executive Airport only. Another provider has already been recom- mended to provide service at Opa-Locka Airport. It is anticipated that approximately 75 percent of the flight training hours will be flown from Kendall-Tamiami Executive Airport. The successful proposer shall enter into an agreement acceptable to the College to provide Flight Training Instruction for Miami-Dade Community College Students "Contract," the minimum terms of which are incorporated into this Request for Proposal document. (see Section 7.0.) Section 3.0 of the RFP informed prospective providers that they had the opportunity (but were not required) to attend a pre- proposal conference at which they would be able to "ask questions regarding the College's requirements as contained in this Request for Proposal." Section 4.0 described, as follows, the "required information" that had to be provided to the College: Vendors submitting proposals must completely fill in all information requested on the attached PROPOSAL COVER SHEET (ATTACHMENT "A"). Vendors submitting proposals must completely fill in all information requested on the attached PROPOSAL SCHEDULE OF FEES (ATTACHMENT "B"). Providers submitting proposals must supply a brief history of the firm/organization submitting the proposal. This history should include: How long the company has been in business under the present management/ownership. Identity and background of the principals, including the position/title of each principal. Current number of employees. Certification(s) currently held by proposer. List and attach copies. Description and location of all current facilities operated by proposer. List of at least five customers, preferably public or governmental organizations, for which you have provided a similar service. List must include reference name, address, telephone number, contact person, and a description of the service provided. In addition, the College reserves the right to contact current or former customers of the proposer not provided as part of the proposal. Label this part of the proposal Response to Section 4.3. Providers submitting proposals must supply a list of all aircraft which will be made available for performance of the Contract. This list must include the make, model number and equipment included in each aircraft proposed. The Provider should also indicate if the aircraft is leased or owned and the age of the aircraft. Label this part of the proposal Response to Section 4.4. Proposers submitting proposals must supply a narrative description of the flight training program proposed for each location. This descrip- tion must include: Number of flight training instructors and other personnel (by category) available for per- formance of the contract, including re[l]e[v]ant experience, certificates, qualifications and ratings held. Proposed facilities to be made available for performance of the contract, including maintenance and repair facilities, classrooms and offices. Description of the intended flight training curriculum for the four courses indicated in Attachment "B." The description of the flight training curriculum must include, but is not limited to, course outlines or training stages, lesson objectives, and evaluation criteria. The College prefers the Jeppesin Sanderson ground and flight training curriculum. If the provider intends to use the Jeppesin Sanderson curriculum, only a brief statement of that fact is necessary. Label this part of the proposal Response to Section 4.5. Providers submitting proposals must provide a narrative description of their safety record, including a list of all safety violations, incidents/accidents, fines, penalties, investi- gations, suits, claims and judgments, which have occurred during the last three years, or which are pending. Label this part of the proposal Response to Section 4.6. Providers submitting proposals must supply a financial statement audited by a public accountant certified by the State of Florida, or by the provider's financial officer, for the most recent fiscal or calendar year. Label this part of the proposal Response to Section 4.7. In addition to the required information noted in Sections 4.1 through 4.7, providers submitting proposals may include any additional information which may be helpful to the College in analyzing the vendor[']s ability to provide the service described in the Request for Proposal documents. Label this part of the proposal Response to Section 4.8. Section 5.3 of the RFP established 3:00 p.m. on October 26, 1995, as the deadline for the submission of responses to the RFP. Sections 5.4 and 5.5 discussed the subject of prospective providers' questions concerning the RFP. These sections of the RFP provided as follows: Any questions concerning this Request for Proposal shall be directed to Mr. Edward Vasquez, (305) 237-2231, and not to any other person or department at the College. Contacting other members of the Evaluation Committee will result in vendor disqualification. The Purchasing Department will determine whether an addendum should be issued as a result of any questions or other matters raised. If issued, the addendum will be incorporated into the Request for Proposal and will become part of the purchase agreement. The last date for vendors to submit written questions relative to this Request for Proposal will be October 18, 1995, (see Tentative Time Schedule). Questions must be received in the Purchasing Department by 3:00 p.m. and shall be sent to Mr. Edward Vasquez. Questions may also be submitted via facsimile machine, (305) 237-2895. Section 6.0 of the RFP described the proposal evaluation and recommendation process. It provided as follows: An Evaluation Committee will review and evaluate all proposals received and will recommend award to the provider(s) whose proposal is considered to be in the best interest of the College. Providers may be asked to meet with members of the Evaluation Committee for the purpose of clarifying or expanding upon any information contained in their proposal. In addition, the Evaluation Committee may require a visit to the proposer's current place of business for the purpose of observing the business operation, specifically as it relates to the proposed aircraft and maintenance facilities. The College reserves the right to accept any proposal deemed to be in the best interest of the College, to waive any irregularities in any proposal, and to reject any all proposals. The criteria to be used for evaluation shall include the following (not necessarily in order of importance): 2/ Cost Vendor Experience Available Aircraft Proposed Training Program Vendor Safety Record Vendor Financial Condition 3/ Notices of decision or intended decision to recommend or reject proposals shall be posted in the Purchasing Department on November 3, 1995. In the event that an unsuccessful bidder desires to protest the College's notice of intended decision to award or reject proposals, the adversely affected bidder shall be required to comply with Miami-Dade Community College Bid Protest Procedures, a copy of which is available from the Purchasing Department, including, without limitations, filing a notice of protest with the Director of Purchasing in writing within seventy-two (72) hours after the posting or, in the case of a mailing or hand delivery, within 72 hours after receipt of the notice of intended decision, and filing a formal written protest within 10 calendar days after the date the notice of protest is filed. Failure to file a protest within the time prescribed herein, which complies with Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. According to Section 2.1 of the RFP, the "[e]valuation of [p]roposals" would take place "October 27-November 2, 1995." Article I of the College's Bid Protest Procedures for Purchasing Department (which procedures were referenced in Section 6.5 of the RFP) addresses the subject of "protest of invitations to bid and requests for proposal." It provides as follows: All bidders and proposers are required thoroughly to review invitations to bids and requests for proposals ("RFP's") within a reasonable time after receipt. Any concerns or comments relating to the bidding or RFP documents shall be brought to the attention of the Director of Purchasing, Miami-Dade Community College (the "College"), or a designated person in the Purchasing Department, in writing promptly after receipt; provided, however, that should the bidder or proposer desire to protest the bid solicitation or RFP, or any of the bidding or RFP documents, including without limitation, the specifications, requirements or procedures thereof, the bidder or proposer shall (i) file a Protest Notice (in accordance with Article III of these Procedures) with the Director of Purchasing of the College, within 72 hours after the initial date (set forth in the public advertisement by the Board) in which the bidding or RFP documents, as the case may be, shall be made available to the bidders or proposers, or, in the case where the bidding or RFP documents are mailed to the bidders or proposers, within 72 hours after the bidding or RFP documents are received by the applicable bidder or proposer (provided that in the case where such documents are mailed, failure to receive such documents shall not be cause for rejection of all bids or proposals and rebidding); and (ii) file a Formal Protest (in accordance with Article III of these Procedures) with the Director of Purchasing of the College within 10 days after the date the Protest Notice is filed. The failure to comply with the foregoing procedures shall be a waiver by the bidder or proposer of any right to later protest on the basis of the form, content and substance, including without limitation, the specifications, requirements or procedures, of the bidding or RFP documents. For the purposes of the procedures contained herein, the capitalized term "Bidder" shall refer to a bidder or proposer and the capitalized term "Bid" shall refer to a bid or proposal as applicable. Article III of the College's Bid Protest Procedures sets forth "bid protest filing requirements." Section 3.1 of Article III provides as follows: Any bidder adversely affected by the decision or intended decision to award, recommend or reject Bids of the College shall file a notice of protest (the "Protest Notice") in writing with the Director of Purchasing of the College, within seventy-two (72) hours after the posting of the Bid tabulation or receipt of written notice of the intended decision (if such written notice is given), and shall file a formal written protest (the "Formal Protest") with such person within ten (10) calendar days after the date the Protest Notice was filed. The failure to file a Protest Notice or failure to file a Formal Protest within the time periods specified above shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Section 3.2 of Article III provides as follows: Except as otherwise expressly provided herein, in calculating time periods if the last day of the period is a Saturday, Sunday or legal holiday (as designated in Section 110.117, Florida Statutes) or any other day on which the College is closed, the period will run until the close of business on the next day which is not a Saturday, Sunday, legal holiday or on which the College is open for business. A Protest Notice or Formal Protest which is not received within the time periods specified in this Article III shall not be valid, and the failure to so file a Protest Notice and/or Formal Protest in accordance with these time periods shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Section 3.3 of Article III provides as follows: A Protest Notice or Formal Protest shall be effective and deemed filed upon receipt by the Director of Purchasing of the College. Accordingly, a Notice of Protest or Formal Protest is not valid and shall not be considered unless it is received by such a person within the times specified in Section 3.1 above. Section 3.5 of Article III prescribes the contents of a Protest Notice. It provides as follows: A Protest Notice shall at least contain the following information: (i) the Project Number or other Bid identification and a brief descrip- tion of the Bid solicitation involved, (ii) the protesting Bidder's name, address and telephone number, (iii) the name of the authorized repre- sentative of the protesting Bidder to whom all communications should be directed, and (iv) a brief factual summary of the bases for the protest. Section 3.6 of Article III prescribes the contents of a Formal Protest. It provides as follows: A Formal Protest shall state with particularity the facts and law upon which the protest is based and shall contain the following information: (i) the Project Number or other Bid identification and a brief description of the Bid solicitation involved, (ii) a clear and comprehensive statement explaining the grounds for the protest, (iii) the applicable statutes, rules, regulations and other legal authority supporting the protest, and (iv) the relief sought by the protesting Bidder. Section 4.1 of Article III provides that "[w]ithin seven (7) calendar days following receipt of the Formal Protest (excluding Saturdays, Sundays, legal holidays or days [o]n which the College is closed), the College shall provide an opportunity to resolve the protest by mutual agreement between the parties." Section 4.3 of Article III provides that "[w]hen a protest cannot be resolved by mutual agreement in accordance with the provisions of Section 4.1 above within such 7-day period and if there is a disputed issue of material fact, then the matter shall be referred to the Florida Department of Administration, Division of Administrative Hearings, 4/ for formal proceedings in accordance with Section 120.57(1), Florida Statutes, and Chapter 22I-6 [now Chapter 60Q-2] and 28, Florida Administrative Code, unless the parties agree by written stipulation to resolve the dispute by informal proceedings as provided herein." The pre-proposal conference referenced in Section 3.0 of the RFP was held, as scheduled, on October 17, 1995. Petitioner sent a representative to the conference. Intervenor did not. At the conference, Petitioner's representative, Juan Naranjo, delivered a letter from Petitioner's President and sole shareholder, Thomas Shaffer, to the College's contact person (as designated in Sections 5.4 and 5.5 of the RFP), Edward Vasquez. The letter read as follows: After a thorough review of the aforementioned RFP, we hereby submit the following requests for modification and clarification of the terms contained therein: Section 7.3.1.1.8(d) Not all Silver Express Flight Instructors are "employees" as defined by the Internal Revenue Service. Some are employed as independent contractors. Section 7.3.1.1.8(f) Not all Flight Instructors have an Associate's Degree. Section 7.3.1.1.9(a) and (g) Mike Smithers, Chief Instructor of Silver Express does not have either an ATP rating, or an Associate's Degree. Section 7.3.1.2.1(a), (iii) Although appendix C(7) requests the number or percentage of aircraft to incorporate an ADF receiver, the above referenced section specifies that all aircraft shall contain an ADF. Nine of our 14 aircraft are so equipped. Section 7.3.3.1(a) Silver Express is insured for $1,000,000.00 under our commercial lines policy and $1,000,000.00/ $100,000.00 per seat for the aircraft liability. The coverage you request is not available to the company. Section 7.5.2 Include cost of living increases; and Silver Express offers aircraft that fall outside of the fee schedule as set forth in Appendix D. Should a student choose to fly one of the more expensive aircraft, the Board will not deny payment of invoices for such services. Section 7.5.2.1 Clarify (duplication of records). Specifically list the software and equipment required. Include as Section 7.5.2.2 The Board shall provide Contractor with real time access to Student account balances via electronic link on a seven day per week basis. If you have any questions, please feel free to call. Shaffer arrived at the conference site as the conference was ending. He did not sign the conference sign-in sheet. After the conference, Shaffer met with Vasquez, at Vasquez's invitation, to discuss in detail the contents of the letter Nananjo had delivered earlier that day on Shaffer's behalf. At the end of the meeting, Vasquez suggested that Shaffer include in Petitioner's proposal the issues raised in the letter. Four prospective providers submitted proposals in response to the RFP: Avionics Parts and Service Corporation (hereinafter referred to as "Avionics"); 5/ Florida Institute of Technology (hereinafter referred to as "FIT"); Petitioner; and Intervenor. 6/ On the "proposal cover sheet" ("Attachment A"), which was referenced in Section 4.1 of the RFP, Intervenor indicated that the "legal name of the entity" submitting its proposal was "Husta International Aviation, Inc." In its response to Section 4.3a. of the RFP, Intervenor stated the following in its proposal: The Joe Husta Aircraft Corporation was formed in September 1986. Later on the company was renamed Husta Aviation, Inc. Due to the relocation from Kendall Tamiami Executive Airport to the Opa Locka Airport on May 8, 1995, the company is now known as Husta International Aviation. The flight school and charter service are currently doing business as Husta Aviation, Inc. The entire time the company has been owned by Joseph Husta. In its response to Section 4.3d. of the RFP, Intervenor stated the following in its proposal: Currently Husta International Aviation holds a Part 135 charter certificate and a Part 141 Flight school certificate. Photocopies of these certificates are contained in the back of this section. The Part 141 certificate to which Intervenor referred in its response to Section 4.3d. of the RFP (Certificate Number MNLS307B) was actually issued to Joe Husta Aircraft Corporation, the entity which, according to Intervenor's response to Section 4.3a. of the RFP, was later renamed Husta Aviation, Inc. Husta International Aviation, Inc., and Husta Aviation, Inc., are now, and were at the time Intervenor submitted its proposal, separate and distinct corporate entities. 7/ The two corporations are "in the process" of merging, but the merger has not yet been finalized. On November 20, 1995, Certificate Number MNLS307B was reissued to Intervenor in anticipation of the merger. In its response to Section 4.3e. of the RFP, Intervenor stated the following in its proposal: The facilities currently in use by Husta Inter- national Aviation at our Kendall-Tamiami Executive facility located at 14160 S.W. 129th Street, Miami, Florida 33186, include an establishment of approximately 1440 square feet. The facilities are located at the departure end of runway 9R, immediately next to the United States Customs office. This allows quick access to the runway, meaning shorter taxi times for students. There are four private briefing areas, in addition to a large lounge and dining areas. Maintenance will be available on an on call basis from our Opa Locka based maintenance staff. (Intervenor made this very same statement in its response to Section 4.5B. of the RFP.) The "establishment" at Kendall-Tamiami Executive Airport referred to in Intervenor's response to Section 4.3e. of the RFP was leased from Metro-Dade County by Husta Aviation, Inc., not by Intervenor. In its response to Section 4.3f. of the RFP, Intervenor stated, in pertinent part, the following in its proposal: f. List of Customers . . . 5. Universidad Aerovias Contact: Ricardo H. Schoer Diestal, Flight School Director AV Tahel Esq. Ruiz Cortines S/N Col Pensador Mexicano 15520 Mexico, D.F. Miami phone (305)362-1493 From January 1993 through August 1994, Husta Aviation provided Initial, Instrument, Commercial, and Multiengine Instruction to over 100 University of Mexico Graduates. The instruction to which Intervenor referred in its response to Section 4.3f. of the RFP was actually provided to students from Aeromexico. The instruction was provided at the Universidad Aerovias. In its response to Section 4.6 of the RFP, Intervenor stated the following in its proposal: During the past three years at Husta Aviation, Inc., there has been only one safety related incident. On July 15, 1994, an Universidad Aerovias student pilot, during a crosswind landing, hit the wingtip on a C-152. The total damage to the aircraft was less than $12,000. During the last three years at Husta Aviation, Inc., there have been no other safety violations, incidents/accidents, fines, penalties, investiga- tions, suits, claims, and judgments levied against Husta Aviation, Inc. In its response to Section 4.7 of the RFP, Intervenor provided, as part of its proposal, a Statement of Operations (including revenue and costs, as well as expenses) for the period from May 8, 1995 through August 31, 1995, of the Husta Aviation Flight School, and a Balance Sheet reflecting the assets and liabilities of the Husta Aviation Flight School as of August 31, 1995. These documents were prepared, but not certified, by Intervenor's chief financial officer. Petitioner, in its response to Section 4.7 of the RFP, advised the College of the following: Audited financial statements are unavailable for the fiscal year ending May 31, 1995. The enclosed statements are uncorrected and intended to be used as a reference only. In its response to 4.8 of the RFP, Intervenor stated the following in its proposal:
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the College enter a final order dismissing, for lack of standing, Petitioner's protest of the Evaluation Committee's recommendation that the contract advertised in Request for Proposal 956-34 be awarded to Intervenor. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of February, 1996. STUART M. LERNER, 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 29th day of February, 1996.
The Issue Whether Petitioner's protest challenging the Department of Transportation's Notice of Intent to Award Contract No. E-6A14, FIN Project No. 251999-1-32-01/251999-1-52-01, to A-1 Duran Roofing, Inc., should be sustained in whole or in part.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement the stipulations of fact set forth in the parties' Joint Pre-Hearing Stipulation: 3/ The District VI Warehouse. The District VI (District) warehouse is used to store archived records, paper supplies, and surplus equipment. In addition, it houses the District's divers and their gear. The District Warehouse Roof Since at least the time of the first solicitation, the District warehouse roof has had a ponding problem and been in disrepair. The condition of the roof has deteriorated to such an extent that there is now an urgent need to replace it. The current roof has five overflow drains or scuppers. The Department has determined that additional scuppers are necessary to provide adequate drainage. The List of Interested and Prequalified Contractors When the District warehouse roof replacement project was originally advertised in 1997, 25 contractors, including Petitioner, A-1, Zurqui, Grace, ART, and Southern Coast Enterprises, requested that the Department send them information about the project. The Department compiled a list containing these 25 contractors' names, addresses, and telephone and fax numbers. The Department subsequently prequalified each of these 25 contractors. Petitioner Pedro Glaria is Petitioner's president. He is now, and has been since 1981, licensed in the State of Florida as both a general contractor and a professional engineer. Petitioner currently has two contracts with the Department, the dollar values of which are $140,000.00 and $110.00.00. Both contracts were awarded during the summer of 2000. They each require Petitioner to provide "roadside mowing" and "roadside litter pickup" services. Since its incorporation in 1989, Petitioner has had a total of 10 to 12 contracts with the Department, at least one of which involved roofing work. At no time has the Department indicated to Mr. Glaria that it has been dissatisfied with Petitioner's work. The Third Solicitation In the third solicitation, as in the first two solicitations, the District warehouse roof replacement project was advertised as a design-build project (involving both design and construction services). The Notice of Informal Bid (No. 6012DS) that the Department used to solicit bids contained the following "work description," "evaluation criteria," and "project information": Work Description Sealed written bids are requested from licensed roofing contractors, general building contractors, professional architectural engineers or professional consultant services for the purpose of a design-build project consisting of roof replacement for the District warehouse building located at the District office complex, 1000 Northwest 111th Avenue, Miami, Florida. The bidder shall provide all labor, materials, supplies, travel, consultant inspection services, shop drawing reviews to design, and furnish plans and specifications necessary to perform all work required for this project. Evaluation Criteria The Florida Department of Transportation (FDOT) will evaluate the technical bid along with the price bid at the same time. The Department may award this contract to the firm whose proposal meets the needs of the Department as outlined in the technical bid criteria, and to the responsible, responsive bidder submitting the lowest total bid. Technical Bid Will Consist of the Following Experience and qualifications of personnel Plans and specifications. 3). Design Warranty Contract time Price Bid 3). Certified Minority Business Enterprise (CMBE) Participation . . . Project Information ESTIMATED BUDGET AMOUNT: N/A With respect to a protest of the specifications contained in an Invitation to Bid or in a Request for Proposals, the Notice of Protest shall be filed in writing within seventy two (72) hours after the receipt of notice of the project plans and specifications or intended project plans and specifications in an Invitation to Bid or Request for Proposals." A formal written protest stating with particularity the facts and law upon which the protest is based and in substantially the same form as a petition in accordance with Rule 60-4.012, F.A.C., shall be filed within ten (10) days after filing of the notice of protest. The ten (10) day period includes Saturdays, Sundays and Legal Holidays; provided, however, if the last day is a Saturday, Sunday or Legal Holiday the period shall run until the end of the next day which is neither a Saturday, Sunday or Legal Holiday. Any person who files an action protesting an award shall post with the Department, at the time of filing the formal written protest, a bond payable to the Department in the amount equal to one percent (1%) of the Department's estimate of the contract amount for the purchase requested or five thousand dollars ($5,000.00), whichever is less, which bond shall be conditioned upon the payment of all costs which may be adjudged against him in the Administrative hearing in which the action is brought and in any subsequent Appellate Court Proceedings. In lieu of a bond, the Department may accept a cashier's check or money order in the amount of the bond. The protest must be filed with The Department of Transportation, Clerk of Agency Proceedings, 605 Suwannee Street, Tallahassee, Florida 32399-0450 THE DEPARTMENT RESERVES THE RIGHT TO REJECT ANY OR ALL PROPOSALS RECEIVED. Exhibit "A" (Attachment V) to the Notice of Informal Bid was the "Scope of Services for Design Build of Replacement Roof at the District Warehouse Building," Section 2.5(a) of which provided as follows: Bidder shall furnish plans and specifications that comply with the South Florida Building Code, Permits Office of the Department of Management Services, and the State Fire Marshall's Office, including but not limited to the following: The design of the roof shall provide for the installation of overflow drains or scuppers in addition to the existing scuppers to prevent an accumulation of water. Petitioner's technical bid, which was prepared by Mr. Glaria, contained a roof design that did not provide for the installation of the additional scuppers required by Section 2.5(a) of Exhibit "A." In Mr. Glaria's professional opinion, these additional scuppers were unnecessary for the design of the roof to comply with the South Florida Building Code. (Petitioner, however, did not file a protest challenging the bid specifications.) By not incorporating the additional scuppers in its design of the roof, Petitioner was able to submit a price bid lower than it could have offered had its design been in compliance with the requirements of Section 2.5(a) of Exhibit "A." All three members of the Department's Technical Review and Awards Committee found Petitioner's technical bid to be non- responsive because it deviated from the requirements of Section 2.5(a) of Exhibit "A.". Had the Department not rejected the Department's technical bid on the grounds that it was non-responsive, Petitioner would have had an unfair competitive advantage over those bidders whose design of the roof included the additional scuppers required by Section 2.5(a) of Exhibit "A." Petitioner's Formal Protest of the Department's announced intention to contract with A-1 contained the following argument concerning the Department's determination that Petitioner's technical bid did not "comply with design criteria for overflow scuppers": FDOT's Technical Panel determined that SPEC failed to comply with the design criteria for overflow scuppers because SPEC did not provide for additional scuppers. . . . The roof already contains five scuppers. As engineer of this design- build project, SPEC determined that additional scuppers were not necessary for proper drainage of the roof. Rather, the roof only necessitated the installation of crickets between the existing scuppers to facilitate drainage of water between the scuppers. The drawing submitted with SPEC's bid reflects the location of the existing scuppers and the use of the crickets to drain any water on the roof. A-1's drawing reflects the use of additional scuppers, but the location of these additional scuppers cannot assist water drainage as the scuppers are located above the crickets, and therefore above roof level, thereby losing any effectiveness. . . . The additional scuppers provided by A-1 will not prevent the accumulation of water as required by section 2.5 and will only create unnecessary expenditure for FDOT. SPEC's design for the drainage of water from the roof is superior to that of A-1, complies with the requirements of the bidding documents and does not require unnecessary expenditure of funds. Accordingly, SPEC should be awarded the project. The Department's December 17, 1998, Notice of Intent Not to Award (Re: Informal Bid No. 6012DS) stated, in pertinent part, as follows: It is the intent of the Department of Transportation to not award the above Contract. This contract will be re- advertised at a later date. . . . ALL BIDS HAVE BEEN REJECTED On January 4, 1999, Petitioner's attorney, Alejandro Espino, Esquire, sent a letter to Department Assistant General Counsel Brian McGrail, which read as follows: This letter confirms our telephone conversation today wherein you stated that the Florida Department of Transportation ("FDOT") rejected all bids on the above referenced project because FDOT intends to rewrite the specification for the mansard roof wood replacement and because FDOT has no available funding for the project. However, you stated that FDOT will not provide a written explanation to SPEC Incorporated or any other bidder for the rejection of the bids for the project. If you believe that the above is not an accurate summary of our conversation, please contact me at your earliest convenience. Best regards. Mr. McGrail responded to Mr. Espino by letter dated January 4, 1999, which read as follows: I am in receipt of your letter this morning regarding our telephone conversation concerning the captioned matter. In response to your rendition of our conversation, I must clarify that I expressed my understanding that the specifications for the project will be reviewed, which may include the issues raised in the protest about the bid specifications, before any further action will be taken by the Department. However, the Department's decision to reject all bids is due to the unavailability of funding for this contract at the present time. I cannot speak to the future of the project with any degree of certainty, nor represent any to you or your client. This is a matter strictly for District VI to decide, and I am not involved in that decision making process. The Department will defend the decision to reject all bids based on the lack of available funding. I refer your attention to Attachment II of Informal Bid #6012DS, Contractual Obligation, Section 1.10 through 1.13. In particular, Cancellation Privileges, regarding the Department's obligations under the Notice of Informal Bid and subsequent agreement shall be subject to and contingent upon the availability of monies appropriated for this contract. Additionally, I am sure that you are aware that the bid documents clearly and repeatedly state the Department's reservation of rights to reject any and all bids for this bid letting. Based on the foregoing, it is clear that the Department's action in rejecting all bids is appropriate under Florida law, if not required, due to the lack of available funds at the present time. If Spec Inc. intends to p[rotest] the Department's decision to reject all bids, I feel it is my responsibility to advise you that the Department will seek any and all costs and attorney fees to which it may be entitled against the protest bond filed in this case. If however, Spec Inc. decides to withdraw the current protests against the intent to award filed on September 28, 1998, and the rejection of all bids filed on December 22, 1998, the Department will agree to return the protest bond in full. After you have had an opportunity to review this matter with your client, please advise at your earliest convenience how Spec Inc., wishes to proceed. Thank you for your cooperation in this matter. I look forward to a prompt response, as the hearing date is approaching rapidly. Mr. Glaria "realized that [Petitioner was] going to have a hard time [in its bid protest] to overcome the issue of lack of funding." In addition, he had the "hope that [Petitioner] would [have the opportunity to] bid the project again for the fourth time." Accordingly, he authorized Mr. Espino to file, on behalf of Petitioner, the following Notice of Voluntary of Dismissal of Formal Protest, dated January 11, 1999: Petitioner, SPEC Incorporated, hereby withdraws its formal protest, dated October 18, 1998, of the Florida Department of Transportation's notice of intent to award Informal Bid No. 6012DS, Financial Project Nos. 2519993201/25199915201, Dade County, to A-1 Duran Roofing, Inc. Upon agreement of counsel for the parties, SPEC Incorporated's bid protest bond will be returned to it. Mr. Espino, in addition, sent the following letter, dated January 11, 1999, to Mr. McGrail: Based on the Florida Department of Transportation's ("FDOT") representation that it rejected all bids for Informal Bid No. 6012DS, Financial Project Nos. 2519993201/25199915201, Dade County, because of the unavailability of funds and because of necessary amendments to the project specifications, SPEC Incorporated hereby withdraws its formal protest of FDOT's notice of intent to reject all bids. As we discussed earlier, FDOT will return SPEC Incorporated's protest bond thirty days after FDOT files . . . the final order in this matter. If you have any questions or comments, please do not hesitate to contact me. Fourth Solicitation The Project is funded through appropriations made by the Legislature in the fixed capital outlay category. 4/ Fixed capital outlay funds are subject to reversion if not obligated (through the execution of a contact or the issuance of a notice of intent to award a contract) within 19 months of their appropriation by the Legislature. In mid-January of 2001, Brenda Garner, the manager of the Department's Fixed Capital Outlay Program, advised Ms. Lyons that, if not obligated by February 1, 2001, a portion of the funds ($45,000.00) appropriated for the Project would revert. Ms. Lyons (who had not been involved, as the District's contract administrator, in the first three solicitations) quickly proceeded (in a day's time) to assemble the documents needed to solicit bids for the Project. These documents included detailed plans and specifications that the District's senior structural engineer and senior project manager had prepared, at Ms. Lyons' request, following the third solicitation, as well as "boilerplate" that the Department uses for non-design-build fixed capital outlay projects like the Project. Ms. Lyons determined that it was unnecessary to advertise for bids and that the Department only needed to solicit bids from three contractors. She selected these three contractors from the list of interested and prequalified contractors that the Department had compiled in the first solicitation. As Ms. Lyons was aware, each of the three contractors she selected (A-1, Zurqui, and Grace) was a Certified Minority Business Enterprise (MBE). She intentionally selected MBE contractors because the District was "trying to meet an MBE goal." Ms. Lyons had some professional familiarity with the three MBE contractors she selected. A-1 had just completed another roofing project for the District, and Zurqui and Grace were performing construction work at the District office complex. Ms. Lyons' decision to not include Petitioner among the three contractors asked to submit bids was not made in bad faith. Inasmuch as the Department was "in a big hurry to get that project done" she did not ask more than three contractors to submit bids. Ms. Lyons required each of the three contractors to first provide proof that it was a licensed general contractor qualified to work on the Project. After receiving such proof, Ms. Lyons then asked the three contractors to bid on the Project. A-1, Zurqui, and Grace submitted their bids on January 25, 2001. The Technical Review and Awards Committee met on January 26, 2001, to review the bids. All three bids were deemed to be responsive. A-1's bid of $58,300.00 was the lowest of the three bids. Neither Zurqui nor Grace protested the Department's proposed decision, announced in its January 26, 2001, Notice of Intent to Award, to award the contract for the Project to A-1. Only Petitioner, which had not been invited to submit a bid and had first learned of the fourth solicitation when Mr. Glaria saw the Notice of Intent to Award while at the District office complex on January 26, 2001, filed a protest.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a final order rejecting in its entirety Petitioner's protest of the Department's announced intention to award Contract E-6A14 to A-1. DONE AND ENTERED this 5th day of June, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2001.
Findings Of Fact Based on the stipulations of the parties and on the evidence received at the final hearing, I make the following findings of fact. On or about April 28, 1988, Florida State University mailed its Invitation To Bid (ITB) No. K-1193-6, to prospective bidders. According to the elevator maintenance specifications attached to ITB No. K-1193-6, the stated purpose of the ITB was was to secure bids for the continuous maintenance of all elevators and dumbwaiters as per the attached list in accordance with the conditions, specifications, and terms listed herein." Responses to the ITB were submitted by Miami Elevator Company in the amount of $289,861.00, by Montgomery Elevator Company in the amount of $192,356.00, and by Mowery Elevator Company in the amount of $137,967.00. Section VI of the ITB requires each bidder to submit the following documentation with its bid. A statement indicating the address of the service center from which the bidder proposes to serve the University. To be acceptable the service center must be located within a ten (10) mile radius of the University campus to minimize travel time in securing parts and supplies. A statement certifying that the local service center from which he will service this contract will contain and maintain an inventory of a least $45,000.00 in parts and materials specifically intended for the elevators to be repaired and maintained under this contract. This inventory is to be available in the Tallahassee service center for inspection upon the request of authorized University officials. A list by name of the type and number of employees who will be assigned to the University under this contract detailing their education, training and experience record. To be acceptable the employees assigned must meet the following requirements in terms of quantity and qualifications. A minimum of two (2) full time, fully qualified and certified master elevator mechanics MUST be assigned to service this contract. Both must possess a "certificate of competency" from the Dept of Business Regulation, Division of Elevator Inspection. Copies of these certificates are to accompany the the (sic) vendors bid. At least one (1) of these two mechanics MUST BE ASSIGNED EXCLUSIVELY to servicing this contract at all times. The contractor may designate one of the two mechanics to be the primary mechanic to service this contract and he will devote his time exclusively to this contract. In the event this mechanic is ill or for other reasons cannot service the contract, the second mechanic designated under this paragraph will assume the duties of EXCLUSIVE service to this contract. THIS IS AN ABSOLUTE REQUIREMENT. An additional, fully qualified mechanic holding the above required "certificate of competency" and at least one (1) helper will also be listed and be available to render immediate support to the two primary mechanics to maintain and repair the elevators and dumbwaiters covered by this contract. * * * The ITB specified that bids would be opened at 11:00 a.m. on Tuesday, May 17, 1988. On or about May 26, 1988, Florida State University posted its Bid Tabulation rejecting all bids for failure to meet various specifications. The reason for the rejection of each bidder was listed on the Bid Tabulation as follows: As to Mowery the rejection was based on Mowery's failure to provide a certificate for additional mechanic; no proof of experience on other than Mowery Elevators; and no mention of traction elevators. As to Montgomery the bid was rejected for failure to provide certificates for mechanics; As to Miami the bid was rejected for failure to meet inventory requirements. Paragraph 9, entitled "Awards," of the ITB reserves the right of the University to reject any and all bids as the best interest of the University may require. The Miami Elevator Company bid included a letter of certification. Pertinent portions of that certification are as follows: Address of service center from which we propose to serve the University: 850 Blountstown Highway Tallahassee, Florida 32304 (904) 576-0161 We hereby certify that the Miami Elevator Company local service center has an inventory equal or greater than 10 percent of the total bid amount and have parts inventory greater than $45,000.00 in our nearest supply warehouse. In 1985, Florida State University issued bid specifications for elevator maintenance services. The 1985 bid specifications contained a certification requirement which included the following language: A statement certifying that the local service center has an inventory equal to at least ten percent (10 percent) of the total bid amount and is supported by a parts inventory of parts required to service the elevators and dumbwaiters covered by this contract, of at least $45,000.00 in the bidder's nearest supply warehouse. The local inventory, shall be available in the bidder's Tallahassee service center for inspection by authorized University personnel before the bid award. The successful bidder is to provide the University, by 7/31/85, with the parts list of the $45,000.00 inventory he is required to maintain. Experience has shown that inventories in the above amounts are necessary to provide support for an installation with the number of elevators and dumbwaiters located at the University. In 1988, prior to the preparation of the bid specifications at issue here, representatives of Miami Elevator Company met with representatives of Florida State University and suggested that the latter make certain changes to the above- quoted language from the 1985 bid specifications when they prepared the 1988 bid specifications. The University representatives followed the suggestions and when the 1988 specifications were issued, the certification requirements regarding inventory read as set forth above in paragraph 2 of these findings of fact. When Miami Elevator Company prepared its bid response to the 1988 ITB, the company representative preparing the bid used the company's 1985 bid response as a model. When he came to the portion of the certification that addressed inventory, he forgot that he and one of his company colleagues had prevailed upon the University to change that requirement. Because of his failure to remember the change, the Miami Elevator Company representative simply copied the inventory certification statement that appeared in the company's 1985 bid response. That statement was responsive to the 1985 bid specifications regarding inventory certification, but was not responsive to the 1988 bid specifications regarding inventory certification. The representative of Miami Elevator Company intended to submit an inventory certification that complied with the requirements of the 1988 bid specifications, but simply made a mistake and copied the language from the company's 1985 bid response. The inventory certification requirement is in a mandatory portion of the bid specifications. It is a material requirement because the availability of a sufficient parts inventory is critical to the timely and efficient maintenance and repair of the elevators and dumbwaiters. The pricing portion of the Miami Elevator Company bid appears to have been prepared with a lack of much attention to detail. The total contract price of $289,861.00 was calculated by one of the company's regional managers. The individual who calculated that total price had not inspected any of the elevators at the university, had no current personal knowledge of any specific elevator, and did not possess a certificate of competency from the Department of Business Regulation, Division of Elevator Inspection. Further, he appears to have misconstrued the significance of a report regarding the condition of some of the elevators and also appears to have made some unwarranted assumptions about the scope of the work required under the bid specifications. Another representative of Miami Elevator Company inspected some of the elevators, but he did not participate in the calculation of the bid amount. As a result of what appears to have been a rather broad-brush approach to the bid calculation process, the Miami Elevator Company bid was more than $100,000.00 over what the university expected the bids to be and was almost $100,000.00 over the second highest bid. The base price of the prior contract awarded in 1985 was $105,344.00. The Miami Elevator Company bid of $289,861.00 represents an increase of approximately 175 per cent of the 1985 price. The university expected that there would be a significant price increase due to such matters as the inflation rate over the past three years, inflation projection for the next three years, and some of the differences between the 1985 and the 1988 bid specifications, but it did not expect an increase of 175 per cent. The university has estimated that a reasonable bid would represent approximately a 75per cent increase in the 1985 price. The factors on which the university estimate are based appear to be reasonable and logical. The Miami Elevator Company facility located at 850 Blountstown Highway includes a separate warehouse on the property which contains inventory valued at approximately $70,000.00. That inventory would be available to service the university elevators. The subject ITB specifically required that each bidder certify that it agreed "to abide by all conditions of this bid." Miami Elevator Company made such a certification when its representative signed the first page of the ITB.
Recommendation For all of the foregoing reasons, it is recommended that the Florida State University issue a final order in this case rejecting all bids. DONE AND ENTERED this 26th day of July, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2960BID The following are my specific rulings on all of the proposed findings of fact submitted by all parties. Findings proposed by Petitioner, Miami Elevator Company Paragraphs 1, 2, 3, and 4: Accepted. Paragraph 5: Accepted, with some additional details for clarity. Paragraph 6: Rejected as irrelevant to the issues in this case. Paragraphs 7 and 8: Accepted, with some unnecessary details omitted. Paragraph 9: First sentence rejected as not supported by persuasive competent substantial evidence and as, in any event, irrelevant. Second sentence rejected as irrelevant. Paragraphs 10 and 11: Accepted. Paragraph 12: Rejected as constituting argument regarding legal conclusions rather than proposed findings of fact. Further, the legal conclusion asserted is not warranted by the evidence. Paragraph 13: Rejected as statement of another party's position rather than proposed finding of fact. Paragraphs 14 and 15: These two paragraphs have for the most part been rejected as constituting unnecessary details. Further, a number of the details proposed are not supported by persuasive testimony, because I am not persuaded that Mr. Herbst did a very careful job of informing himself about the requirements of the bid specifications or about the condition of the subject elevators. Paragraph 16: All but last sentence rejected as subordinate and unnecessary details. Last sentence rejected as not supported by persuasive competent substantial evidence. Paragraph 17: Rejected in part as subordinate and unnecessary details, in part as not supported by persuasive competent substantial evidence, and in part as contrary to the greater weight of the evidence. Paragraph 18: Rejected as contrary to the greater weight of the evidence. Paragraph 19: Most of this paragraph is rejected as constituting a statement of another party's position and as argument about that position. Findings are made that there are differences between the subject invitation to bid and the immediately preceding invitation to bid. Paragraphs 20 and 21: Rejected as subordinate and unnecessary details. Paragraphs 22 and 23: Rejected in part as argument rather than proposed findings, in part as not supported by persuasive competent substantial evidence, and in part as contrary to the greater weight of the evidence. Paragraph 24: First two sentences rejected as contrary to the greater weight of the evidence. The remainder of this paragraph (dealing with Mowery) is rejected as irrelevant. First Paragraph 25: Accepted in substance. Second Paragraph 25: Rejected as irrelevant or as subordinate and unnecessary details. Paragraph 26: Rejected as for the most part constituting argument rather than proposed findings; to the extent findings are proposed, they are rejected as not supported by competent substantial evidence or as contrary to the greater weight of the evidence. Findings proposed by Respondent, Florida State University Paragraphs 1 and 2: Accepted. Paragraph 3: Rejected as constituting discussion of legal conclusions rather than findings of fact. (The conclusions are essentially correct, but they do not belong in the findings of fact.) Paragraphs 4, 5, and 6: Accepted in substance, but with numerous unnecessary details omitted. Paragraph 7: First two sentences rejected as cumulative and repetitious. Last sentence accepted in substance. Paragraph 8: Accepted in substance. Paragraph 9: Rejected as subordinate and unnecessary details dealing more with legal conclusions than with facts. Paragraph 10: First two sentences rejected as cumulative and repetitious. The remainder of this paragraph is accepted in substance. Paragraph 11: Rejected as irrelevant. Paragraph 12: Rejected as constituting legal argument rather than proposed findings of fact. Paragraph 13: Rejected as irrelevant to the issues in this case. Paragraph 14: Rejected as constituting argument about legal conclusions rather than proposed findings of fact. (Again, the conclusions are essentially correct, but they do not belong in the findings of fact.) Paragraphs 15, 16, 17, 18, and 19: Rejected as irrelevant because these proposed findings all relate to issues that were not raised in prehearing pleadings and were not raised in the prehearing statement. Paragraph 20: Rejected as procedural details that do not need to be included in the findings of fact. Paragraph 21: Accepted in substance. Paragraph 22: Rejected as subordinate and unnecessary generalities. Paragraphs 23, 24, 25, 26, 27, and 28: Rejected as subordinate and unnecessary details. Paragraphs 29, 30, 31: Accepted in substance, with some unnecessary details omitted. Paragraphs 32, 33, 34, and 35: The essence of the findings proposed in these paragraphs has been found, but most of the details proposed have been omitted as subordinate and unnecessary. Findings proposed by Intervenor, Montgomery Elevator Company Paragraph 1: Accepted. Paragraph 2: Accepted in substantial part, but with irrelevant portions of the specifications omitted. Paragraphs 3 and 4: Accepted. Paragraph 5: Accepted in large part, but some irrelevant information has been omitted. Paragraph 6: Accepted in substance. Paragraph 7: First sentence rejected as constituting discussion of legal conclusions rather than proposed findings of fact. Second sentence accepted in substance by quotation of Miami Elevator Company's certification. Paragraph 8: Accepted. Paragraphs 9, 10, 11, 12, and 13: Rejected as irrelevant because these proposed findings all related to issues that were not raised in prehearing pleadings and were not raised in the prehearing statement. Paragraph 14: Bid amount is accepted; remainder is rejected as subordinate and unnecessary details. Paragraph 15: The essence of this paragraph has been included in the findings, but most details have been omitted as unnecessary. COPIES FURNISHED: Sonja P. Mathews, Esquire Associate General Counsel Office of the General Counsel The Florida State University 311 Hecht House Tallahassee, Florida 32306 Harold F.X. Purnell, Esquire Oertel & Hoffman, P.A. 2700 Blairstone Road, Suite C Post Office Box 6507 Tallahassee, Florida 32314-6507 S. Grier Wells, Esquire Brant, Moore, Sapp, MacDonald & Wells 121 West Forsyth Street, Suite 900 Post Office Box 4548 Jacksonville, Florida 32201
Findings Of Fact The Respondent, Department of Corrections ("Department"), conducted the bid opening for the proposed award of lease number 700:0487 on June 27, 1989. The bids submitted by Petitioner, Miami International Commerce Center ("MICC"), and Intervenor, Luis Sanchez ("Sanchez") were the only two timely responses received to the bid solicitation for this lease. At the bid opening, the Department rejected MICC's bid on the grounds that it was unresponsive. The Department contends that MICC's bid was not responsive because: The map included in the proposal form on which the bidder was supposed to depict the location of the project was not included as an attachment to the package submitted. However, the MICC bid package did include a map from which the location of the project could easily be determined. The package submitted did not include adequate evidence of compliance with the energy performance index. The package submitted did not include a clear photo of the building demonstrating that the building was "dry and measurable". Mary Goodman, the Chief of the Bureau of Property Management for the Department of General Services, was called as a witness by the Department to testify regarding MICC's bid submittal. Ms. Goodman has been Chief of the Bureau of Property Management for 18 years and has been involved in leasing for state projects since 1958. She drafted the proposal form and the schedule of required attachments thereto. In September of 1988, she sent a letter to the state agencies involved in leasing (including the Department) advising them as to the mandatory nature of the proposal form and the need to insist upon strict adherence to the requirements set forth in the proposal. This directive was applied by the Department in rejecting MICC's bid. After testifying regarding the deficiencies in the MICC's bid submittal, Mrs. Goodman reviewed the energy performance certification included as part of the Intervenor's submittal package. Mrs. Goodman testified that the certification letter included in that package was inadequate, and therefore, the Intervenor's bid was also nonresponsive. Both the bid submitted by Petitioner and the bid submitted by Intervenor failed to include acceptable energy performance certifications and were therefore nonresponsive.
Recommendation Based upon the foregoing, it is RECOMMENDED that both bids submitted in connection with the proposed award of Lease No. 700:0487 be deemed nonresponsive and the Department of Corrections rebid the lease. DONE and ENTERED this 25th of August, 1989, at Tallahassee, Florida. J. STEPHEN MENTON 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 25th day of August, 1989. APPENDIX The Petitioner has filed a Proposed Recommended Order which does not comply with the format anticipated in Rule 221- 6.031, Florida Administrative Code. However, the undersigned has reviewed the Proposed Recommended Order and it has been considered in the preparation of this Recommended Order. The first two pages of the Proposed Recommended Order consist of background information and quotes from the bid documents. These two pages do not constitute proposed findings of fact. Page three of the Proposed Recommended Order includes proposed findings of fact and they have been adopted in the Findings of Fact set forth above. Page four of the Proposed Recommended Order constitutes legal argument. COPIES FURNISHED: Charles Fritz, Designated Representative 8181 Northwest 14th Street Miami, FL 33126-1899 Luis Sanchez, Pro Se P. O. Box 34021 Tallahassee, FL 33134 Drucilla E Bell, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, FL 32399-2500
Findings Of Fact On March 19, 1985 petitioner, Michael Scott Symons, became employed as a financial manager with the brokerage firm of Easter Guthmann & Kramer Securities, Inc. (EGK) at 7200 West Camino Real Street, Suite 200, Boca Raton, Florida. In connection with his employment Symons filed an application for registration as an associated person of EGK with respondent, Department of Banking & Finance, Division of Securities (Division). The application was received by the Division on or about March 19, 1985 and was deemed to be complete on April 18, 1985. On that portion of the application entitled "Personal History" Symons gave 5700 Grillet Place, S.W., Fort Myers, Florida 33907 as his home address. He identified EGK's address as being 7200 West Camino Real, Suite 200, Boca Raton, Florida 33433. Although Symons signed the application he stated that EGK had actually submitted the application on his behalf since it was a common practice for brokerage firms to do administrative work on behalf of their employees. This is consistent with an agency rule (3E-600.02(3), F.A.C.) which requires that a securities dealer file and countersign the application for registration on behalf of an associated person. On March 24, 1985, or shortly after he began employment with EGK, Symons moved into an apartment at 6091 Boca Colony Drive, Boca Raton, Florida 33427. Approximately one month later, he began renting Post Office Box 3299 in Boca Raton. Symons did not inform the Division of these changes in address, or otherwise amend his application. On or about July 12, 1985 a Division bureau chief spoke by telephone with the chief financial officer of EGK and asked if EGK would voluntarily withdraw Symons' application. Later that same day, an EGK vice-president telephoned the bureau chief and advised him the firm would not withdraw the application. On July 16, 1985, the Division prepared and dated an Order Denying Application for Registration as an Associated Person. The next day a Division attorney sent a copy by certified mail to Symons' at 5700 Grillett Place, S.W., Fort Myers, Florida. Because Symons' wife had previously provided the post office with a change of address form the envelope containing the order was forwarded from Fort Myers to Post Office Box 3229 in Boca Raton. Certified mail notices were thereafter placed in the box on July 24 and July 31. However, the mail was never claimed. On August 8, 1985 the envelope was returned to the Division. It was received in Tallahassee on August 12, 1985. There is no evidence that Symons was aware the order had been mailed or that he deliberately failed to claim the letter. The agency attorney similarly assumed that Symons had not received a copy. Accordingly, it is found that at this point in time Symon had no knowledge that the July 16 order-was entered, and had been mailed to him in Fort Myers and Boca Raton. On August 19, 1985 the Division attorney again sent a copy of the July 16 order by certified mail to 7200 West Camino Real, Suite 200, Boca Raton. This was the address of EGK. According to the attorney, it was her intention to mail the order to Symons, and not his employer. The order contained the following pertinent language on page 5: Respondent is advised that Respondent may request a hearing to be conducted in accordance with the provisions of Section 120.57, Florida Statutes. A request for such hearing must comply with the provisions of Rule 28-5.201, Florida Administrative Code, and must be filed within twenty-one (21) days after receipt of this order. Otherwise, Respondent will be deemed to have waived all rights to such hearing. The certified mail receipt for the envelope containing the order was apparently signed for by Charlie Shields, an EGK employee. 1/ It eventually reached the desk of EGK's chief financial officer, James Weber, in an unopened envelope on August 23, 1985. Weber opened the envelope and read the enclosed order. He noticed on page five of the order that there was a twenty-one day time frame in which an appeal of the agency denial could be made. Believing that the twenty-one day time frame began on July 16, Weber erroneously concluded that the time to request a hearing had already expired. This was probably because he had never before seen a denial order, and was not familiar with the procedures under Chapter 120, F.S. Weber then showed the order to Edward Guthmann, a principal and vice- president of EGK. Guthmann telephoned an out- of-state attorney seeking advice on how to proceed, and sent a copy of the order to the attorney on August 23. The attorney did not take any action, and returned the order to Guthmann on an undisclosed dated between late August and the middle of September. On September 17 Weber "came to the realization" that under any interpretation of the order the time frame in which to request a hearing had run. He then contacted petitioner's present counsel on September 17 to discuss obtaining legal representation for Symons. Symons has continued using that counsel since that time. A petition for hearing was eventually filed with respondent on October 1, 1985. This petition was denied by agency order entered on October 16, 1985 on the ground Symons had "constructive receipt and notice of the Denial Order at the time of its delivery by U.S. Certified Mail to Respondent's personal address on July 24 1985, and furthermore, deems Respondent to have received actual notice. . . on August 25, 1985, when the Denial Order was claimed and signed for at EGK's address as listed on the application." Neither Weber or Guthmann informed Symons prior to September 15 that they had received the Division order, or that the document even existed. They also did not advise him that they had contacted an out-of-state attorney in August in an effort to obtain advice. In this regard, petitioner had not authorized them to take any action with respect to the denial order, or to seek the advice of an attorney. Symons was unaware of the existence of the denial order prior to September 20, 1985 when he was shown a copy of the order by his employer. Had he been aware of the order prior to September 15, he would have filed a request for a hearing. Even though he did not specifically voice an objection to his employer opening his mail, Symons did not expressly authorize his employer to accept the order or any other notices from respondent. Indeed, Symons considered certified mail to be "a personal thing," and something that "an employer has (no) right to open."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that petitioner timely requested an administrative hearing to contest respondent's denial of his application for registration as an associated person. DONE and ORDERED this 4th day of December, 1986 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 4th day of December, 1986.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent violated Section 471.033(1)(g), Florida Statutes, by displaying negligence in the practice of engineering, and violated Section 471.033(1)(j), Florida Statutes, by sealing a drawing which was not prepared by him or under his responsible supervision, direction, or control. The Respondent denies that there has been any violation.
Findings Of Fact At all times material hereto, the Respondent, Monrad R. Thue, has been a licensed engineer in the State of Florida, having been issued license number PE 0032071. The Respondent's address is 8520 S.W. 53rd Court, Miami, Florida 33143. In January of 1987, the Respondent signed and sealed plans for the steel elevator support of the "Sander's residence" located on Key Biscayne, Florida. At the time of signing and sealing the plans, the Respondent also placed the following limiting notation over the seal: "For steel elevator supports only." The Respondent did not meet with the draftsman, David Del Sol, either prior to or during the draftsman's preparation of the plans. Daniel Del Sol, who is David Del Sol's brother, took the subject plans to the Respondent because the building department required that the elevator support portion of the plans be sealed by a licensed engineer before it could be approved. The Respondent carefully reviewed the plans drawn by David Del Sol and retained the plans for a couple of days During the next two days the Respondent did the necessary calculations and made some minor drafting changes on the support system sections of the plans. He than signed and sealed the plans and returned them to David Del Sol. These actions by the Respondent constitute responsible supervision, direction, or control. 1/ The steel elevator support portion of the plans suffers from a lack of coordination in several details and could have been drawn somewhat clearer. The lack of coordination and clarity in the subject plans does not, however, constitute negligence in the practice of engineering. 2/
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Professional Engineers issue a final order in this case dismissing all charges against the Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 25th day of March, 1991. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1991.
