Findings Of Fact Mill-It Corporation is a Florida Corporation licensed to do business in the State of Florida. Ben Guzman, a stipulated member of a recognized minority group, is the President of the Petitioner Corporation. Additionally, Mr. Guzman owns 26 percent of the stock. The other stockholders are James E. Quinn (24 percent), Myrna Bortell (26 percent), and Edward T. Quinn, Jr., (24 percent). Ms. Bortell is also a member of a qualified minority. The Petitioner Corporation was formed in August, 1983. The first three months of its existence was spent obtaining the necessary licenses, permits, loans, and equipment. Mr. Guzman was primarily responsible for these activities. During this time period, Mr. Guzman was required to return to Chicago, his former home, to undergo surgery on his arm. During his absence, he delegated minimal authority to Edward T. Quinn, Jr., in order that the Corporation could continue to operate. During Mr. Guzman's absence, he maintained control of the Corporation through frequent telephonic communications with Mr. Quinn. Just before Mr. Guzman was required to go to Chicago for the surgery, Mill-It Corporation had taken delivery of its milling machine. The machine had been in the possession of Mill-It Corporation for only one week and Mr. Guzman had not had an opportunity to run the machine prior to his departure. Mr. Guzman relied on Mr. Quinn because they had known each other for approximately 25 years and Mr. Guzman was aware of Mr. Quinn's knowledge of the road building business and the necessary steps to establish Mill-It Corporation as a viable business in Florida. Mr. Guzman returned to Florida for the onsite inspection by an agent of the Respondent, but he was still under a doctor's care and was on various types of medication for pain. Mr. Guzman returned to Chicago for additional medical treatment following the onsite inspection, and he did not return to Florida until January, 1984. In January, 1984, Mr. Guzman began to completely learn the operation and mechanics of running and maintaining the milling machine and he assumed the complete responsibility for overseeing all the projects of the milling operation. Mr. Guzman originally relied upon the expertise of Edward T. Quinn, Jr. in the field of bidding, but Mr. Guzman always supplied the necessary figures and data for the bid. Mr. Guzman hired Edward T. Quinn, Jr., as his sales representative and estimator. After the brief learning period, however, Mr. Guzman began to totally supervise the bidding procedures and began directing Mr. Quinn to attend various bid lettings with the figures supplied by Mr. Guzman. At the time of the onsite inspection, Mill-It Corporation had completed only its organizational phase of becoming a business entity. In fact the milling machine was such a recent acquisition that during the onsite inspection Mr. Guzman had not had time to learn the technical aspects of the operation and mechanics of the machine. After the onsite inspection, Mr. Guzman assumed responsibility for operation of the milling machine and supervising the overall performance of the job. Additionally, James Quinn also operated the machine. Mr. Guzman has the authority to hire and fire employees, sign checks, correspond on behalf of the corporation, enter into contracts, and purchase equipment on behalf of the corporation. Cancelled payroll and vendor's checks, correspondence to and from the company, bonding contracts, insurance contracts, and corporate documents were all signed by Mr. Guzman. All major business decisions are made by Mr. Guzman after considering the advise of the other officers and stockholders. All day-to-day decisions are made by Mr. Guzman.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Mill-It Corporation's application for certification as a Minority Business Enterprise be GRANTED. DONE and ENTERED this 7th day of June, 1984, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1984. COPIES FURNISHED: RUSSELL H. CULLEN, JR., ESQUIRE P. O. BOX 1114 ALTAMONTE SPRINGS, FLORIDA 32701 VERNON L. WHITTIER, JR., ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING, M.S. 58 TALLAHASSEE, FLORIDA 32301 PAUL A. PAPPAS, SECRETARY DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301
The Issue Whether the Respondent properly rejected the Petitioner's bid for Board of Regents (BOR) project 658 because it did not comply with the good faith effort requirements of the General and Special Conditions of the project's specifications?
Findings Of Fact Call for Bids was issued by the Respondent, Florida Board of Regents, for Board of Regents ("BOR") project numbered 658, Southeast Campus Building - Davie at Broward Community College Central Campus, in Florida Administrative Weekly. (Stipulated). The Project Manual is the volume assembled which includes the bidding requirements, sample forms, and Conditions of the Contract and Specifications (Jt. Ex. 1 at pp. 8 of 106 pages). The Call for Bids (Jt. Ex. 2) provided that at least fifteen (15) percent of the project contracted amount will be expended with minority business enterprises (MBE) certified by the Department of General Services as set forth under the Florida Small and Minority Business Act, Chapter 287, Florida Statutes. If fifteen percent were not obtainable, the State University System would recognize good faith efforts by the bidder (Jt. Ex. 2). The Call for Bids (Jt. Ex. 2) provided that the bidder be advised to review the Good Faith Efforts requirements in the Special Conditions section of the Project Manual immediately, in order to schedule the necessary tasks to accomplish Good Faith Efforts. The Call for Bids (Jt. Ex. 2) provided that all bidders must be qualified at the time of their bid proposal in accordance with the Instruction to Bidders, Article B-2. The Instructions to Bidders, Article B-2 at page 9 of the Project Manual, (Jt. Ex. 1) provides in pertinent part, that in order to be eligible to submit a Bid Proposal, a bidder must meet any special requirements set forth in the Special Conditions section of the Project Manual. The Project Manual, Instructions to Bidders, B-23 at page 16 (Jt. Ex. 1) provides that the contract will be awarded by the Respondent for projects of $500,000 or more, to the lowest qualified and responsible bidder, provided the bid is reasonable and it is in the best interest of the Respondent to accept it. The award of the contract is subject to the demonstration of "good faith effort" by any bidder whose Bid Proposal proposes less than fifteen (15) percent participation in the contract by MBEs (Minority Business Enterprise). Demonstrated "good faith effort" is set forth in the Special Conditions. The contract award will be made to that responsible bidder submitting the low responsive aggregate bid within the preestablished construction budget. The Project Manual, Instructions to Bidders, B-25 at page 17, (Jt. Ex. 1) provides that the Florida Small and Minority Business Act, Chapter 287, Florida Statutes requires the involvement of minority business enterprises in the construction program. The Respondent/Owner has adopted a program for the involvement of minority business enterprises in the construction program. The application of that program is set forth in the Special Conditions of the Project Manual. The Project Manual, Instructions to Bidders, B-26 at page 17 (Jt. Ex. 1) provides that bidders shall be thoroughly familiar with the Special Conditions and their requirements. The Project Manual, Instructions to Bidders, B-26, at page 15 provides that falsification of any entry made on a bidder's proposal will be deemed a material irregularity and will be grounds for rejection. The Project Manual, Special Conditions, Article 1, subparagraph 1.1.1, at page I-1 of I-26 pages, (Jt. Ex. 1), provides that the SUS has established a Construction Minority Business Enterprise Program in compliance with the Florida Small and Minority Business Assistance Act, Chapter 287, Florida Statutes. The expenditure of at least fifteen (15) percent of the Base Bid with certified MBEs is a requirement of this contract, unless Good Faith Effort, as identified in paragraph 1.7 can be demonstrated by the Bidder. MBEs not certified by Department of General Services will be deleted from the calculation of the required participation of MBEs, and evidence of Good Faith Effort in lieu thereof will be required as identified in subparagraph 1.1.2 and paragraph 1-7 of these Special Conditions. The Project Manual Special Conditions, Article I, subparagraph 1.1.2 at page I-2 of I-26 pages, (Jt. Ex. 1), provides that evidence of good faith efforts will be required as specified by the Respondent/Owner within two working days after the opening of bids. Incomplete evidence which does not fully support each of the eight requirements of paragraph 1.7 of the Special Conditions shall constitute cause for determining the bid to be unresponsive, except that the owner may, at its option but not as a duty, seek supplementary evidence not submitted by the Bidder. The Project Manual Special Conditions, Article 1, paragraph 1.6 at page I-3 of I-26 pages, (Jt. Ex. 1) states that MBE's participating in the State University System Minority Construction Program must be certified as a MBE by the Florida Department of General Services (hereinafter referred to as DGS) at the time of bid submittal. Certification identifies and limits the Specialty Area of business the MBE can perform and still qualify as a certified MBE. Therefore, the trade service listed on the Proposal for each of the MBEs must be within the scope of the Specialty Area. The bidder is required to ascertain that a listed MBE is certified by the DGS in the appropriate specialty area to perform the services for which it is listed. (Jt. Ex. 1, B-15, at p. 13). On January 17, 1992, Petitioner, Centex-Rooney Consturction Company, Intervenor, State Paving Corporation, and ten other bidders submitted bids on BOR Construction Project No. BR-658. After review of the bids and preparation of the bid tabulatio it was announced by FAU that Centex-Rooney was the apparent low bidder, but that Centex-Rooney had failed to meet the fifteen percent (15%) MBE participation requirement, and therefore, would be required to submit evidence of Good Faith Efforts within two days. The bid submitted by Centex-Rooney listed four (4) subcontractors which Centex-Rooney represented as DGS certified MBE firms, for a total of $867,000 which was 9.56% of the base bid of $9,067,000. (Stipulated). Since the bid submitted by Centex-Rooney was less than fifteen (15) percent required participation in the contract by MBEs, the University Planning Office requested that Centex-Rooney submit documentation to demonstrate "good faith effort" as set forth in the Special Conditions of the Project Manual. (Stipulated). Centex-Rooney timely submitted its good faith documentation on January 22, 1992. (Stipulated). The Board of Regents with representatives of Centex-Rooney on February 25, 1992 to give Petitioner an opportunity to clarity and submit any additional good faith evidence in support of its bid. After reviewing the additional evidence, the Respondent contended that Centex-Rooney was in non-compliance with paragraphs 1.1.1 and 1.6.1 of the Special Conditions of the Project Manual, requiring at least 15% participation by MBEs at the time of bid opening, and at least one good faith effort criteria, paragraph 1.7.4, Special Conditions of the Project Manual. (Stipulated). Centex-Rooney was informed of the Board of Regents decision to reject its bid for non-compliance with Respondent's MBE requirements, and on March 6, 1992, the Chancellor of the Florida Board of Regents awarded the contract to State Paving Corporation. (Stipulated). ^ The Board notified by letter dated March 6, 1992, all bidders of its award of contract for BR-658 project to the next lowest responsive bidder, State Paving Corporation. (Stipulated). Petitioner timely filed a Notice of Intent to Protest on March 10, 1992. (Stipulated). On March 19, 1992, Petitioner timely filed its Petition for Formal Written Protest for BR-658. (Stipulated). A representative from Centex-Rooney attended the pre-bid/pre- solicitation meeting. (Jt. Ex. 10, R-115, 116). The minority business enterprise program was discussed and the Board of Regents' requirements for good faith efforts were reviewed. (R-116, 117, 131). Centex-Rooney submitted its bid proposal on January 17, 1992. (Jt. Ex. 13). On page 2, paragraph c., of the bid proposed form submitted by Centex- Rooney, it provides that expenditure with minority business enterprises shall be consistent with the requirements of Article 1. of the Special Conditions, Minority Business Enterprise Requirements. Centex-Rooney listed four subcontractors on its List of Subcontractors and MBE participation form as DGS certified MBEs for a total of 9.56% participation (Jt. Ex. 13, Jt. Ex. 31). The List of Subcontractors form is an integral part of the proposal (Jt. Ex. 13, List of Subcontractors Form page 1) and it is required of all bidders that MBEs must be certified at the time of bid opening for bona fide participation. (Jt. Ex. 1, page I-3 of I-26 pages, R-163, 174). Two of the four subcontractors listed by Centex-Rooney, Quality Concrete and S&S Roofing, were not DGS certified MBEs at the time of bid submittal. (R-19, 150, 163, 164, 174). Therefore, the two non-DGS certified subcontractors were deleted from the calculation of the required participation of MBEs, so that the total DGS certified MBE participation of Centex-Rooney at the time of bid submittal was 5%. (Jt. Ex. 1, Spec. Conditions 1.1.1, page I-1, Jt. Ex. 13, R-19, 150, 163-4, 174). Therefore, Centex-Rooney was required to show a good faith effort to engage MBE's. See Paragraph 16 above. Ms. Patricia Jackson, MBE Coordinator for Respondent, testified that requiring the DGS certified MBEs to be named at the time of bid opening makes the contract bidding procedures consistent, and eliminates any unfair price differentials between contractors. (R-151). Centex-Rooney was pressed for time in responding to the bid. It called a large number of the MBEs listed the documentation provided, and wrote letters to those subcontractors who expressed an interest and to other subcontractors. Mr. Charles Federico was chairman of the MBE advisory committee at Florida Atlantic University (Jt. Ex. 6, R-115). The committee reviewed the good faith efforts submitted by Petitioner (Jt. Ex. 6, 25, R-115, 140). The good faith effort submittal to FAU from Centex-Rooney contained nine sections (Jt. Ex. 25) with the following consecutive headings: Pre-Bid Meeting Attendance, Advertisements for MBE Participation, Solicitation Letter to Minority Businesses, Follow-Up Contacts to Minority Businesses, Selected Items (or portions) of Work for Minority Businesses, Specific Project Bidding Information made available to Minority Businesses, Utilization of Minority Businesses in Bid, Solicitation of Available Minority Organizations to Recruit Minority Businesses, and a Table of Contents. Under the third heading in Centex-Rooney's good faith efforts, Solicitation Letters to Minority Businesses, Petitioner provided 55 form letters in his submittal to FAU and a bulletin. The text of each form letter provided the following: Centex-Rooney is bidding as general contractor on the Southeast Campus Building for FAU and BCC, Central Campus, Davie, FL and invites your firm to submit a quotation for the materials and/or labor on any portion of said project which falls within your scope of work. Please review the attached notices with respect to pertinent information pertaining to the bid. If your firm will be unable to submit a bid on the project, please state your reasons on the enclosed unavailability certificate form, sign and return to the Office of C-R. By doing this, it will help maintain an active MBE directory at Centex-Rooney and continue to indulge you on our bid list. Centex-Rooney encourages that participation of MBE contractors will be more than happy to answer your questions regarding this project. Under the section heading, Follow-up Contracts to Minority Businesses, for Petitioner's good faith submittal to FAU Petitioner included a 14 page log gridded with subcontractor/ vendor names, telephone numbers, MBE designation, will bid, bid submitted, low bid, date contacted and remark sections. The FAU MBE advisory committee found Petitioner in non-compliance with 1.7.3, 1.7.4, 1.7.7 and 1.7.8 of the Special Conditions section of the Project Manual that contains the good faith efforts requirements of Respondent. (Jt. Ex. 6, Jt. Ex. 12). The committee based its findings on the Special Conditions section of the Project Manual. (R-119). The committee found non-compliance with 1.7.3 because the 55 form letters submitted by Petitioner were dated January 9, 1992. The committee determined that a letter dated January 9 was too late to give MBEs time to respond to the January 17 bid opening date. (R.121). In regard to 1.7.4, the committee found the Petitioner in non- compliance because no follow-up letters, telegrams, or meetings notes were provided in the good faith documentation. (R-122, 124). Mr. Federico testified that the committee found non-compliance with 1.7.7 of the Good Faith Effort requirements (R-125, 126) and 1.7.8. (R-126, 127). The advisory committee determination was sent to the Vice-President of Administration and Finance at FAU, Ms. Marie McDemmond. (R-128). The University President recommended award of the contract to Centex- Rooney. (Jt. Ex. 2, R-129). The University President is not authorized to award Board of Regents contracts. The Board of Regents awards contracts for projects of $500,000 or more. (Jt. Ex. 1, B-23, at page 16). Centex-Rooney could not utilize the two additional subcontractors, Kings Plumbing and Eagle Electric Distributors, because they were not listed on the Subcontractor/MBE form submitted by Centex-Rooney at the time of bid opening. (R-129, 130, 131). The University reconsidered its recommendation (Jt. Ex. 29), and subsequently recommended State Paving for award. (Jt. Ex. 32). The Handbook distributed by FAU at the pre-bid/pre-solicitation meeting contains a disclaimer which states that it is not intended to replace or supplement any information in the Project Manual or conditions for contract award (R-31, 132). State Paving met and exceeded the 15% MBE participation requirements for BR-65 (Jt. Ex. 14, R-20). Centex-Rooney's bid plus three alternatives was $9,590,000, and State Paving's bid plus three alternates was 9,592,500, so that the two bidders were $2,500 apart. (Jt. Ex. 7). At least seven of the twelve bidders on BR-658 met the 15% MBE participation goal (R-19). The FAU committee has reviewed many bids and has had several that met good faith efforts and several where the low bidders had met 15% MBE goal. (R- 117, 142). Ms. Jackson received a telephone call from Centex-Rooney regarding the FAU advisory committee's determination of non-compliance. (R-149). Ms. Jackson contacted Mr. Federico and reviewed the bid proposal and good faith efforts of Centex-Rooney on behalf of the Board of Regents. (R-148, 149). Ms. Jackson reviewed Centex-Rooney's good faith efforts as submitted to FAU and found non-compliance with 1.7.4 of the Special Conditions in the Project Manual for BR-658. (R-149). The Special Conditions of the Project Manual at page I-5 for 1.7.4, provide that the State University System requires that a bidder shall make no less than one written follow-up contact per initial contact. In the event a positive response is obtained, the Bidder shall request, in writing, a meeting between the MBE and Bidder's staff. The documentation required in the Special Conditions for 1.7.4 are copies of letters, telegrams and/or meeting rates. Ms. Jackson testified that the telephone log submitted by Centex-Rooney to document compliance with 1.7.4 did not meet the Special Conditions requirements because it was not a letter nor a telegram or a meeting note. (R-149). Nor did the telephone log reflect one written follow-up per initial contact as required by the University implementation of 1.7.4 in the Special Conditions (R-149, 157). Ms. Jackson contacted Centex-Rooney by phone and informed it of her finding that Centex-Rooney's reversal of the telephone calls and letters did not conform to the requirements of 1.7.4. (R-152). Thereafter, a meeting was arranged between Ms. Jackson and other BOR staff to provide Centex-Rooney an opportunity to provide supplemental evidence of good faith effort. (R-152). The Special Conditions section, at I-2, paragraph 1.1.2 provides that incomplete evidence which does not fully support each of the eight requirements of Paragraph 1.7 (good faith requirements) shall constitute cause for determining the bid to be unresponsive, except that the Owner may, at its option but not as a duty, seek supplementary evidence not submitted by the bidder. (R- 152). Centex-Rooney supplemented its submittal with 55 form letters dated January 24, 1992. These form letters were not considered satisfactory by Respondent as a written follow-up to each initial contact or to meet any other requirements in 1.7.4 because the letters were dated after the date of the bid opening. (Jt. Ex. 27, R-157, 158). Pursuant to Centex-Rooney's request at the February 25, 1992 meeting, Ms. Jackson again reviewed the company's documentation of its good faith efforts, evaluating the January 9, 1992 letters originally submitted as documentation for 1.7.4, as documentation for 1.7.3, and evaluating the telephone log, originally submitted as documentation of follow-up contact for 1.7.4 as initial solicitation documentation for 1.7.3. (R-153, 154). Considering Centex-Rooney's efforts in their best light, it was still determined by BOR that Centex-Rooney was not in compliance with 1.7.4. because there was no initial written contact and no written follow-up for each positive response. The telephone log is deemed to be analogous to meeting notes; however, the documentation viewed most favorably for Petitioner does not meet the written requirements of the Special Conditions which cannot be waived. (R- 157, 160, 161, 162, 163, 171). Two spread sheets were provided to BOR as supplemental documentation (Jt. Ex. 26). The Summary (Jt. Ex. 37) and other spread sheets (Jt. Ex. 36) were not provided to FAU by Centex-Rooney nor to Respondent in its subsequent review or as part of its option to permit supplementary documentation for good faith compliance. (R-55, 70, 71). Petitioner did not obtain the 15% MBE participation for BR 658. Petitioner did not meet the MBE requirements contained in 1.1.1 of the Special Conditions. (Jt. Ex. 1, page I-1). Two of the MBEs listed by Petitioner with its bid proposal were not certified by DGS at the time of bid submittal. Petitioner did not meet the MBE requirements contained in 1.6.1. (Jt. Ex. 2, I-3). The telephone log submitted by Petitioner was insufficient as required documentation. Petitioner did not meet the good faith efforts requirement set out in 1.7.4 of the Special Conditions (Jt. Ex. 2, page I-4). (R-175, Jt. Ex. 28, 29). The telephone log, as presented by Centex-Rooney was not a copy of a letter, a telegram or a meeting note. The telephone contact did not constitute a written follow-up contact per initial contact as required by the Special Conditions, nor did it suffice as a request in writing for a meeting between the MBE and bidder's staff if a positive response was obtained from an MBE. (R-149, 157). Conversely, as proposed by Petitioner, the telephone contact was not acceptable under the terms of the Special Conditions as an initial notice under 1.7.3 because the contact was not by letter as required. Also, there was not a letter for each initial telephone contact, and the January 9 letters did not request meetings with those MBEs who responded positively, nor did the letters provide evidence of any meeting notes. (R-157, 160, 161, 162, 163, 171).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That Centex-Rooney's bid for project BR-658 was properly rejected by the Respondent, and that the Board of Regents may proceed with its award of the contract to the Intervenor, State Paving. DONE and ENTERED this day of May, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, 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 day of May, 1992. APPENDIX CASE NO. 92-2272BID Board of Regent's proposed findings were read and considered. The findings of the BOR were adopted except for Paragraph 22 which was deemed a conclusion of law. State Pavings' proposed findings were read and considered. The following list indicated which findings were adopted, and which were rejected and why: 1 through 3. Adopted. Was not specifically adopted, but is correct and is subsumed in other findings. Subsumed in other findings. Rejected that Centex-Rooney "freely admits" their bid failed to meet 15% requirement, a contrary to the evidence. Subsumed Paragraphs 32, 33 and 34. Subsumed Paragraphs 44, 45, 46 and 47. Subsumed Paragraph 50. Subsumed Paragraph 29 re documentation. Comments re Mr. Hamlin are argument and rejected. Rejected in part a restatement of statutes and law, and subsumed in other findings. Adopted that Centex-Rooney complied with 1.7.1, 1.7.2, and failed to comply with 1.7.3 and 1.7.4. Centex-Rooney did comply with 1.7.5 and 1.7.6 and 1.7.8. To the extent that the evidence in this case did not show Centex-Rooney's good faith efforts, 1.7.7 was not proven. Rejected as argument. Subsumed Paragraph 35. Subsumed Paragraphs 39 and 41. Rejected as argument. Subsumed in Paragraphs 55, 56 and 57. Rejected as conclusion of law. The Petitioner's proposed findings were read and considered. The following list which of the findings were adopted, and which were rejected and why. Paragraphs 1 through 11. Adopted. Adopted, Paragraph 23. True; adopted in part in Paragraph and in Paragraphs 23 and 28. 14 and 15. Rejected as irrelevant. True, subsumed in Paragraph 28. Subsumed in Paragraphs 32 and 46. True, but irrelevant. There was no allegation that Centex-Rooney failed to advertise. Subsumed in Paragraphs 28 and 33. Subsumed in Paragraphs 32, 48 and 52. True but irrelevant because Centex-Rooney had fewer than 15%. True but irrelevant. Subsumed in various paragraphs. Subsumed in Paragraphs 28, 32, 33, 34 and 35. True subsumed in Paragraphs 36 and 37. Subsumed in Paragraphs 44, 46, 47, 50 and 51. Irrelevant because it does not establish compliance with 1.7.3 and 1.7.4. BOR properly rejected this evidence which was presented after the bid opening. Copies furnished: Charles B. Reed, Chancellor Florida Board of Regents State University System 325 West Gaines Street Tallahassee, FL 32399-1950 James E. Glass, Esquire 6161 Blue Lagoon Dr., Suite 350 Miami, FL 33126 Jane Mostoller, Esquire 325 W. Gaines St., Suite 1522 Tallahassee, FL 32399-1950 J. Victor Barrios, Esquire 1026 Ease Park Avenue Tallahassee, FL 32301
Findings Of Fact On or about March 17, 1994, Petitioner, T-B Services, Inc., filed an application for certification as a minority business enterprise with the Florida Department of Management Services. The Respondent, the State of Florida Commission on Minority Economic and Business Development, has subsequently been assigned responsibility for this matter. On May 3, 1994, Petitioner's application was denied. Petitioner's application was denied based upon Respondent's conclusion that Petitioner did not satisfy Sections 288.703(2) and 287.0942(1), Florida Statues, and rules governing minority business enterprises of the Department of Management Services. Mr. Anthony D. Nelson is the minority, 100 percent, owner of Petitioner. Mr. Nelson is an African-American. The business of Petitioner, fire protection consulting, and fabrication and installation services, requires the association of an individual holding a professional license to perform those services. There are two professional license holders associated with Petitioner. Neither of the professional license holders are members of any minority. Mr. Nelson does not hold a professional license necessary for the Petitioner to provide fire protection consulting, or fabrication and installation services.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent dismissing the Petition for Formal Hearing filed by T-B Services Group, Inc., and denying Petitioner's application for minority business enterprise certification. DONE AND ENTERED this 26th day of May, 1995, in Tallahassee Florida. LARRY J. SARTIN, 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 May, 1995. COPIES FURNISHED: Cindy A. Laquidara, Esquire Suite 1629, Riverplace Tower 1301 Riverplace Boulevard Jacksonville, Florida 32207 Kenneth W. Williams Assistant Attorney General Office of the Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 Crandall Jones Commission on Minority Economic and Business Development Executive Administrator Knight Building 272 Centerview Drive Tallahassee, Florida 32399-0950
Findings Of Fact Wanda Forbess is an American woman. She is the president of the Petitioner corporation, Center Office Products, Inc. She owns 5l percent of that corporation's outstanding stock. The stock is full voting stock and there are no agreements in existence or anticipated which would cause any change in the percentage of ownership of Wanda Forbess, nor any change in the voting power of her stock. The Petitioner corporation and Wanda Forbess has no affiliation or relationship with any other business and Wanda Forbess is not an employee of any other business. The net worth of the Petitioner as of the date of hearing is less than one million dollars. It has also been stipulated that the Petitioner, that is, Wanda Forbess, has been performing a useful business function and operating the Petitioner's business since 1981. Wanda Forbess is the mother of Thomas J. Forbess and Raymond D. Forbess and the wife of Thomas D. Forbess. In 1981 her children were almost out of school, with her youngest child being about to enter college. She decided she wanted to start her own business. She had been active as a homemaker, a volunteer and active member of civic organizations. She decided to enter the office supply retail business in 1981 because of the low initial investment required due to the presence of two wholesale suppliers in Jacksonville who could supply goods for inventory on a rapid basis. She also chose to enter this business because there were no particular special skills, training or licenses required and because she knew something about it, since her husband worked for twenty-five years in one phase of the business, that of sales of paper products. This decision being made, Ms. Forbess approached her sons, Thomas J. Forbess and Raymond D. Forbess, to persuade them to enter into the business with her. They agreed to join her in the venture and she set about to form the Petitioner corporation. She desired to incorporate in order to limit the liability which she and her sons would be exposed to in operating the business. She retained an attorney to incorporate the business, but paid no particular attention herself concerning how the shares were to be issued and held or as to the manner of appointment of the members of the board of the directors. She simply followed her attorney's instructions who advised her to do the "standard type" of incorporation. The corporation estab- lished by her attorney provided, in its by-laws, that there would be three directors. Wanda, Ray and Thomas Forbess were each named as directors since they were the only three individuals involved with the Petitioner at its formation. The attorney also issued stock certificates for 200 shares each to the three directors. Wanda Forbess was appointed as president and chief executive officer of the Petitioner corporation. This was because the formation of the business and the company was Mrs. Forbess' idea and she had provided more than five times the amount of capital of each of the other two owners, her sons. In fact, she had provided $11,000 of her own money as initial capital and her two sons provided $2,000 each. Notwithstanding their equal ownership status and the equal vote each of the three has on the Board of Directors, as well as the requirement in the bylaws that a majority vote of the Board is controlling, Mrs. Forbess has been in control of the Petitioner corporation's operations from the day of its inception. Her sons do not question that control and established the fact of it in their own testimony at the hearing. The vice- president is Raymond D. Forbess and the secretary treasurer is Thomas J. Forbess. The bylaws provide that the property and business of the corporation is managed by its Board of Directors and that a majority of those directors shall be necessary and sufficient to constitute a quorum for the transaction of business. The act of the majority of the directors present at any meeting at which there is a quorum shall be deemed to be the act of the board. It is also provided in the bylaws that the holders of the majority of shares of stock may remove a director at any time, with or without cause, at a duly called meeting. The president of the Petitioner is empowered to call such a meeting at any time. Any vacancy occurring as a result of removal of any director by the majority shareholders may be filled by the affirmative vote of the majority of remaining directors, even if less than a quorum shall be present. Directors are not required to be shareholders. Therefore, as a holder of 51 percent of the shares of the Petitioner, Wanda Forbess has control over the board of directors by the power to elect or remove any director by voting shares accordingly at a meeting which she may call at any time, with or without notice, as the president of the Petitioner corporation. Replacement directors could then be appointed by her vote alone and could be any person she elects, including, for example, an employee over who she has authority and who she may direct to vote a certain way. In any event, from 1981 through 1987, the Petitioner grew from a company with three employees to a company of 18 employees and more than $280,000 gross monthly sales. During this time, the Petitioner enjoyed some State of Florida contract business. Some time in 1987, Mrs. Forbess became aware that she would soon be unable to continue doing business with the state because her business was not a certified minority business enterprise. In fact, however, the Petitioner had been, from its inception, an American woman-controlled corporation in actual practice. On June 1, 1987, Mrs. Forbess directed her sons to convey sufficient stock to her so that she could become a 51 percent shareholder of the Petitioner corporation. This transfer was done to comply with section 288.703(2), Florida Statutes, concerning the definition of "minority business enterprise." It was also done to formally reflect what had been the case, as a practical matter, since the inception of the corporation: that Wanda Forbess controlled the Petitioner corporation. The company by that time had significant value reflected in the value of its stock, but neither son required payment for his stock which he conveyed to Mrs. Forbess. They considered that she was the controlling owner of the corporation from its inception anyway due to the fact that the business was her idea and that she had contributed by far the most significant amount of initial capital. Mrs. Forbess spends a majority of her time conducting the financial affairs of the Petitioner. She is more familiar and more involved with the financial affairs of the Petitioner corporation then any other owner, officer, director or employee. In that capacity, she sets all the salaries, including the salaries of her sons and her husband. All salaries are set completely at the discretion of Mrs. Forbess and always have been. She pays her two sons and her husband a higher salary than she pays herself because their financial requirements are greater, but the salient point here is that she is the manager with the discretion to set their salaries. In 1985, after the Petitioner had been operating successfully for four years, Thomas J. Forbess, the husband of Mrs. Forbess, retired from his position with Jim Walter Paper Company after 25 years of employment with that firm. Prior to that time he had no involvement with the formation, operation or management of the Petitioner corporation. He has never had an ownership interest in the Petitioner. He is an employee of the corporation and assists in some of the operations, including preparation and submittal of bids for some of the work the corporation undertakes. Mrs. Forbess controls the purchase of goods, equipment and business inventory and services used and needed in the day- to-day operation of the business. She frequently purchases significant items used in the business, such as computers, trucks, and postage machines, as well as inventory. In addition to this, the major purchases made by the business by any co-owner or employee must be made only with her approval. Evidence was offered showing the lease agreements and notes evidencing that corporate debts related to large purchases were signed by all corporate officers as a basis for an attempt to show that decisions are made by "consensus" or are joint decisions. However, the fact that lenders and lessors require all corporate officers to sign documents evidencing leases or debts does not mean each corporate officer had an equal part to play in making the decision involved. The record is replete with evidence and testimony from employees and the other owners that Wanda Forbess has a veto power on all decisions concerning purchases, loans, leases of real property and every other major business decision the Petitioner confronts. Further, the fact that discussions are had amongst the owners and officers of the business prior to making major decisions is really a sound business practice and does not mean that one of the owners, directors or officers does not have final authority to make a binding decision. The person who has final authority for such major decisions is Wanda Forbess. Mrs. Forbess also has the authority to hire and dismiss employees, a requirement of subsection 3(b) of Rule 13-8.005(3), Florida Administrative Code. She herself has interviewed employees from time to time and also has final authority to approve all hiring and discharge decisions or to veto them in those instances where she has delegated that authority. She controls which professional services are obtained by the Petitioner corporation, as shown by her decision to discontinue the services of the former company accountant. Indeed, she has delegated some of the hiring processes, given the fact that the Petitioner corporation has grown to be a business with 18 employees. That however, is a normal, acceptable business decision. The delegation of the advertising of a position, the interviewing of prospective employees and the conveying of offers of employment to prospective employees in no way indicates that the delegator does not have the final authority to hire or dismiss the employees. Wanda Forbess also controls all financial affairs of the Petitioner corporation. She thus has unsurpassed knowledge in relation to the other owners, officers and directors, of the financial structure and operations of the business. In fact, the bulk of her time spent working for the Petitioner, corporation since its inception, has been in the field of financial matters. She makes the decisions concerning debt to be incurred by the Petitioner, and approves any major expenditure, without which approval expenditures may not be made. It is significant that Mrs. Forbess has veto authority over the extension of credit to customers and establishment of credit accounts by customers. One instance was described by Jeannine Silcox and Raymond Forbess concerning Raymond Forbess' attempt to open an account to service a particular customer on a credit basis. Mrs. Forbess opposed that procedure and ordered that the account not be opened. The account was not opened. This demonstrates effectively that not only does Mrs. Forbess control the financial affairs of the company, but also wields ultimate authority amongst the co-owners of the Petitioner. Additionally, it is undisputed that Mrs. Forbess writes the vast majority of checks on the Petitioner's two checking accounts, in terms of the requirement, at subsection 3(D) of the above-cited rule, that she control the accounts of the business. She estimates that she writes 97 percent of the checks and there is no evidence to refute that estimate. Thomas J. and Raymond B. Forbess are each authorized signatories on the accounts, but their names are simply there as a matter of convenience and the only instances in which they sign checks are when there is an immediate need for the check to be paid and Mrs. Forbess is unavailable to sign herself. There is no question that Mrs. Forbess is the ultimate authority controlling the Petitioner's bank accounts. In order to comply with subsection 3(e) of the above cited rule, the minority owner must demonstrate capability, knowledge and experience in making decisions concerning the business involved. At the time of the business's inception, neither Mrs. Forbess nor her co-owner sons had the capability, knowledge or experience required to make many of the decisions concerning the retail office supply retail business. Over seven years of operation however, Mrs. Forbess has actively supervised and managed the business of the Petitioner and has developed to a high degree those attributes, in making decisions involved in operating that business successfully. She has delegated certain aspects of the company's business to the supervision of her sons. Thomas J. Forbess, for example, is involved in developing additional retail operations. Raymond B. Forbess is more actively involved in the delivery of merchandise to customers and the monitoring of customer accounts, as well as maintaining and accounting for inventory. Nonetheless, neither of the other owners effects any significant decisions without consulting Mrs. Forbess first and gaining her approval or veto. Through this supervision and control over the past seven years, as well as her current direct involvement in managing the Petitioner's affairs, Mrs. Forbess has developed the capability, knowledge and experience required to make decisions regarding the office supply business involved herein. Her operational and managerial capabilities are demonstrated by the fact that under her leadership the business started with three employees and has grown to an 18 employee business with gross sales in the neighborhood of $280,000 per month in just over seven years. Finally, Mrs. Forbess has displayed independence and initiative in conducting all major operations and details of the Petitioner since its inception, (as required by subsection (f) of the above rule). Although she has done little bid negotiating directly, she has the ability to do so and has some experience in that activity. Further, bid proposals are submitted to her for approval and are not made without her knowledge and assent. Further, she herself negotiates leases and other contracts on behalf of the Petitioner.
Findings Of Fact General Contractors & Construction Management, Inc. (Petitioner), is a Florida corporation engaged in the business of general contracting and construction (construction and renovation of commercial and residential buildings), including subcontracting, since 1985. Petitioner's President is Ms. Akram Niroomand-Rad and its Vice-President is Mr. Kamran Ghovanloo, Ms. Niroomand-Rad's husband. Petitioner is a small business concern as defined by Subsection 288.703(1), Florida Statutes. Prior to April 1990, Ms. Niroomand-Rad owned 50 percent of Petitioner's stock. In April 1990, she acquired 100 percent of the stock and became the Petitioner's sole owner. Ms. Niroomand-Rad is a minority person as defined by Subsection 288.703(3), Florida Statutes. According to Petitioner's articles of incorporation and by-laws, its corporate business is conducted by a majority of the board of directors. Petitioner has two directors, Ms. Niroomand-Rad and Mr. Ghovanloo, 1/ and as such, the minority owner does not control the board of directors. Also, according to Petitioner's by-laws, Petitioner's President manages its business and affairs subject to the direction of the board of directors. Petitioner's licensed contractor is Mr. Ghovanloo who is a certified general contractor. Ms. Niroomand-Rad is not a licensed contractor although she is taking course work to become a licensed contractor. Mr. Ghovanloo is Petitioner's qualifier, and, as its qualifier, brings his expertise and license to the business. Further, as qualifier, he is also responsible for the finances of Petitioner and for pulling the necessary permits in order for Petitioner to perform the contractual work. Additionally, Mr. Ghovanloo performs Petitioner's estimating, handles quality inspection of job sites, assists in the evaluation and preparation of bids, and attends some of the pre-bid meetings on projects. Ms. Niroomand-Rad has been involved in soliciting bids, reviewing bids and estimates, negotiating contracts, visiting clients, responding to correspondence, overseeing financial activities, hiring and firing, and visiting job sites. However, Ms. Niroomand-Rad relies heavily upon Mr. Ghovanloo's technical expertise, expert opinions, and judgment and upon others for guidance and for handling the technical aspects of the business. Further, Ms. Niroomand-Rad relies heavily on Mr. Ghovanloo, and others to a lesser degree, regarding the purchasing of goods, equipment, or inventory, and services needed for the day-to-day operation of the business, including evaluating and retaining subcontractors. Mr. Ghovanloo is authorized to sign checks without restriction. Ms. Niroomand-Rad was reared in a construction environment. Also, she has completed a construction management course offered by the City of Miami and is a licensed real estate broker. Petitioner has been certified as an MBE by Dade County and the Dade County School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Minority Economic and Business Development enter a final order denying General Contractors & Construction Management, Inc., certification as a Minority Business Enterprise. DONE AND ENTERED this 24th day of July, 1995, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 24th day of July, 1995.
The Issue The Department of Environmental Regulation issued a Reguest for Statement of Qualification for Petroleum Site Cleanup Services, Solicitation #9111C. Attachment F to the solicitation sought information related to utilization of minority business enterprises as subcontractors. Points were available for said utilization. The Department awarded zero points to parties which failed to include the three pages of the attachment in the responses to the solicitation. The issue in this case is whether the Department acted in accordance with law in awarding zero points for failure to submit all three pages of Attachment F.
Findings Of Fact On March 1, 1991, The Department of Environmental Regulation (DER) issued a Request for Statement of Qualifications (RFSOQ) for Petroleum Contamination Site Cleanup Services, Solicitation #9111C. As stated in the RFSOQ, the DER's objective is to enter into approximately ten contracts for petroleum cleanup services with contractors most qualified to perform the services. It is in the best interests of the state and the DER to enter into such contracts with the most qualified contractors available. Selected firms will be placed under contract with the DER to respond to task assignments. There is no work guaranteed to any contractor as a result of being selected and placed under contract. The cover sheet to the DER Solicitation #9111C identifies Attachment B as "General Instructions", Attachment C as "Instructions for Preparation of an SOQ", Attachment F as "Minority Business Certificate" and Attachment N as an "SOQ Checklist." In the RFSOQ, the DER specifically reserved the right to waive minor irregularities. The general instructions set forth at Attachment B provide, that the DER "may waive minor informalities or irregularities in the SOQs received where such are merely a matter of form and not substance, and the corrections of which are not prejudicial to other contractors." The DER is not required to waive all minor irregularities. The ability to waive such defects is within the jurisdiction of the agency. The evidence establishes that the DER applied such discretion consistently. There is no evidence that, at any time prior to the SOQ opening, did the Petitioner or Intervenors seek additional information from the DER regarding the agency's discretion to waive minor irregularities. Attachment C provides that "ANY AND ALL INFORMATION SUBMITTED BY A CONTRACTOR IN VARIANCE WITH THESE INSTRUCTIONS WILL NOT BE REVIEWED OR EVALUATED (e.g. pages beyond the 20-page SOQ limit will not be reviewed) or may result in the response being deemed non-responsive and rejected as noted." The purpose of the statement was to discourage responders from submitting information beyond that required by the RFSOQ, in order to provide a common basis for the evaluation of all SOQs submitted. The provision also provided the DER with the ability to reject an SOQ which failed to substantially comply with the agency's solicitation. Attachment C states that an SOQ shall consist of three parts, a one- page transmittal letter, a 20-page SOQ, and "other required information". According to Attachment C, the SOQ was to contain an introduction, a section on the company's background, a statement of experience and knowledge related to the qualifications required by the RFSOQ, a description of project organization and management appropriate to the tasks assigned, a list of personnel responsible for completion of assigned task, a list of "a minimum of ten separate and verifiable former clients other than the FDER" and related information. Work performed for the DER was to be set forth separately in addition to the ten non-DER clients. "Other required information" included minority business utilization information. Attachment C provides as follows: Contractors submitting SOQs under this solicitation must identify intended minority subcontractors and estimated percentage of total contract amount to be awarded to minority firms on Attachment F of this Request for Statement of Qualifications. Use of any document other that Attachment F shall result in disallowance of any credit for use of minority subcontractors. (emphasis supplied.) Evaluation points were available on a scaled basis to contractors based upon their commitment to utilization of minority businesses enterprises in their SOQs. Attachment B provides that "Minority Business Utilization will be evaluated. provided that the responder complies with the reporting requirements contained in Attachment F...." (emphasis supplied.) Attachment F, page 1 of 3, provides as follows: Directions: Each contractor and/or subcontractor which meets the definition of a certified small minority business, as described below, shall submit an originally signed copy of page 1 of this Attachment in the response package to this solicitation. If more than one minority business is to be used, the prime contractor shall copy this page and have each minority business complete that copy as though it were an original. A prime contractor which intends to utilize subcontractors meeting the definition of small minority business is responsible for completing page 2 of this Attachment. A prime contractor which meets the definition of a small minority business is responsible for completing page 3 of this Attachment. If a particular page of this Attachment is not applicable, the prime contractor shall so indicate on that page and include the page as part of the response package. At a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit-- this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization. (emphasis supplied.) Attachment N, the "SOQ checklist," provides a list of items which are to be "properly completed, signed and enclosed" in order to "ensure that your SOQ is responsive to FDER Solicitation No. 9111C...." Item 3.b. of Attachment N reads: "Minority Business Utilization Form - if applicable (Attachment F)". As stated in Attachment B to the RFSOQ, on March 13, 1991, a mandatory pre-bid meeting was held in Tallahassee, Florida, at the DER's offices for all contractors wishing to submit a Statement of Qualifications (SOQ). Failure to attend the meeting would have resulted in rejection of SOQs submitted by non- attending contractors. The Petitioner and Intervenors were represented at the pre-bid meeting. The meeting provided an opportunity during the solicitation process to have technical, legal or administrative questions answered. Accordingly, potential responders are expected to have read the complete RFSOQ prior to the meeting. At the pre-bid meeting, the DER did not review every part of the solicitation, but invited questions from participants. The DER official conducting the meeting stated that "any and all information submitted by a contractor in variance with these instructions will not be reviewed or evaluated," however, the other directions provided in the RFSOQ were otherwise reviewed only upon request. Although there was a specific discussion of the requirements for reporting proposed minority business utilization, there were no questions asked with regard to the requirements for completion of Attachment F. There were no questions asked regarding the DER's right to waive irregularities, or whether the failure to submit Attachment F in accordance with the directions would be regarded by the agency as a minor irregularity. Potential responders also had an opportunity to submit written questions prior to a time certain. There is no evidence that questions were raised related to the requirements of Attachment F or to the DER's application of it's discretionary authority to waive minor irregularities. On March 22, 1991, the DER issued an addendum, not material to this case, to the Request for SOQs. The addendum was sent by certified mail to each contractor represented at the March 13, 1991 meeting. On March 27, 1991, a second addendum was sent to each contractor. The addendum, among other things, changed the date for submission of an SOQ from April 1, 1991 to April 15, 1991 at 2:00 P.M. On April 15, 1991, SOQs were submitted by the Petitioner and Intervenors in this case. The bids were opened at 2:00 P.M. or shortly thereafter, and subsequently evaluated and scored by DER personnel. In some categories, points were awarded on a weighted basis, which provided a relative ranking of responders. For example, the prime contractor with the highest minority business enterprise subcontractor utilization received 13 points, with lesser ranked contractors receiving fewer points. On June 3, 1991, at 10:05 A.M. bid tabulation results were posted in the DER's contract office. The Petitioner and Intervenors in this case submitted responsive SOQ's to DER solicitation #9111C. The result of the DER's evaluation was the development of a short list of contractors permitted to make oral presentations to agency officials after which the DER will initiate contract discussions with approximately ten contractors. The SOQs were reviewed by DER officials who initially identified information submitted which did not comply with the requirements of the RFSOQ. Irregularities were identified and discussed with DER legal counsel to determine the materiality of the irregularity and to ascertain the appropriate treatment of the defects. The DER officials did not disclose the identity of the responder during the discussions, although the person identifying the defect was aware of the related responder. However, there is no evidence that the three DER officials were aware of an individual non-complying contractor's identity, or that the decision to waive such irregularities was based upon the identity of the participants. The DER determined that, in order to be equitable to all participants, it would not waive irregularities where the directions were clear and the consequences for noncompliance were specifically set forth. If the solicitation were less clear, or the consequence of noncompliance with the requirement was not specifically identified, the Department attempted to be more lenient regarding the waiver of such irregularities. Where the DER waived irregularities, such waivers were awarded on a consistent basis without regard to the individual responders involved. Information which was not to be reviewed or evaluated was concealed by either covering the information with white paper, or stapling excess pages together. The DER waived several types of minor irregularities in the SOQs received for Solicitation #9111C. Some contractors submitted transmittal letters consisting of multiple pages rather than the one page letter specified in the RFSOQ. The transmittal letter received no evaluation points. The DER stapled multiple page letters together and considered only information contained on the first page. Therefore, information submitted at variance with the one- page limit was not reviewed or evaluated. The DER did not waive the failure to attach a transmittal letter. DER waived some irregularities related to subcontractor letters. Multiple page letters were stapled together and only page one information was reviewed. The DER decision to waive such defects was based upon the fact that such subcontractors were less familiar with the DER's submission requirements than were the prime contractors, that such letters were submitted by the subcontractors, that it was unfair to penalize the prime contractors for the minor irregularities of the subcontractor letters, and that the tasks to be performed by subcontractors were generally not critical to the successful completion of the prime contractor's assigned responsibilities. There was sufficient information to permit the DER to conclude that the subcontractor and prime contractor were committed to the project. There is no evidence that the identities of the subcontractors was considered in determining whether such defects should be waived. The DER waived other irregularities related to subcontractor letters, including the failure of a subcontractor to sign the letter. There was no specific requirement that the subcontractor sign the letter. However, the DER did not waive the failure to submit subcontractor letters. In instances where no letters were submitted, the DER awarded zero points and references to the subcontractor in the SOQ were deleted. The DER's actions related to subcontractor letters was reasonable and appropriate. Another irregularity waived by the DER was the failure to supply a minimum of ten separate and verifiable former clients other than the DER, with work performed for the DER set forth separately. The DER did not waive the failure to submit ten references, however, in some cases, not all ten references were acceptable. Attachment C does not state that the failure to submit ten acceptable references shall result in an award of zero points. In such instances, the DER reduced the number of points available to reflect the percentage of acceptable references provided. Therefore, information submitted at variance with the requirements, such as unacceptable references, was not evaluated. The DER acted reasonably and consistently with the provisions set forth in the RFSOQ. The DER requested that responders identify three "deliverables" required through an ongoing contract which had been effective within the past year. The DER did not consider deliverables related to contracts which had not been effective within the past year. The DER checked the references and awarded no points for unacceptable references. Several SOQ's did not appropriately identify key personnel as required. The DER did not consider information which was not reported as required by the RFSOQ. Where minor irregularities were waived, the waiver was applied consistently to all responders. The DER did not waive the failure of any responder to submit the three pages of Attachment F, as clearly required by the directions to the attachment. All parties which failed to submit all three pages of the attachment received a score of zero. There is no evidence that the DER, at any time, indicated that the directions set forth on Attachment F were optional. Approximately 20 of 45 of contractors submitting SOQs failed to include all three pages of the MBE utilization form, Attachment F to the Request for SOQs. Most failed to include page three of the attachment. The Petitioner, as well as Intervenors ERM-South, ITC and Westinghouse, were included in the 20 responders which failed to submit all three pages of Attachment F. As provided in the directions to Attachment F, failure to include all three pages of the attachment resulted in a score of zero points for MBE utilization. The DER could have made certain assumptions about the applicability of Attachment F to specific responders to the solicitation. However, given that the directions were clear and the penalty for not complying with the directions was equally clear, the DER did not waive the failure to submit all three pages of the attachment as part of the SOQs. The evidence is insufficient to establish that the DER's action was outside the agency's discretion or the requirements of law. Extensive testimony was offered in support of the assertion that the directions related to reporting of minority business utilization were confusing and ambiguous. However, the directions to Attachment F are clear and provide that, "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." There is no credible evidence to establish that such directions are confusing or ambiguous. The instructions to the RFSOQ consistently refer to Attachment F as being the only acceptable means of reporting minority business utilization information. Attachment F consists of three pages, with the "Directions" for completing and submitting the attachment set forth at page one, paragraph one. The Petitioner and Intervenors timely filed SOQ's and are substantially affected by the DER's determination that responders failing to submit all three pages of Attachment F were awarded zero points for minority business utilization. There is no evidence that the Petitioner or Intervenors are unable to perform the tasks identified in the RFSOQ.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a Final Order dismissing the petition of Metcalf & Eddy, Inc., (Case No. 91-4318B1D), as well as Cases No. 91- 43I6BID and 91-4317B1D, as set forth in the preliminary statement to this Recommended Order. DONE and RECOMMENDED this 26th day of September, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 September, 1991. APPENDIX CASE NO. 90-4316B1D, 90-4317B1D, and 90-4318B1D The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner Metcalf & Eddy, Inc. The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 4. Rejected as to the implication that DER had no right to waive minor irregularities, contrary to the evidence. 12, 16, 19. Rejected, unnecessary. 20. Rejected. Such additional points appear to have been awarded to M&E in violation of Section 120.53(5)(c), Florida Statutes. 24-25. Rejected. Although the specific waivers are factually correct, the implication of the proposed finding is contrary to the weight of the evidence which establishes that the DER waives such irregularities, even though the instructions were clear, where the consequences for failing to comply with each specific instruction were unclear. There was no penalty set forth at the requirement that a document be signed or not exceed one page in length. The evidence establishes that the DER's actions were reasonable, logical, and within the authority of the agency. 29-32. Rejected. Contrary to the clear "Directions" of Attachment F, which state that "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." Responders were referred to Attachment F by the instructions cited in the proposed finding. 33-34, 36-38, Rejected, irrelevant. 39. Rejected, immaterial. The fact the DER could have examined the information submitted by M&E and ascertained the information which would have been set forth in the complete attachment is irrelevant. The agency is under no obligation to review the information submitted for the purpose of determining a responders' minority business status. Such information is to be provided in the three pages of the completed attachment. 40-41 Rejected. A logical reading of the checklist reference to Attachment F would be that, if the attachment were applicable, the attachment should be included. The clear and specific directions to Attachment F require the submission of the three page package to receive points. 42-43. Rejected, irrelevant. 44. Rejected. The failure to submit all three pages of Attachment F resulted in zero points, as provided in the directions to the attachment. The DER policy related to waiver of irregularities does not include the waiver of irregularities where the instructions are clear, the penalty for noncompliance is specific, and a responder fails to comply. The policy is reasonable and was applied consistently. 47. Rejected, contrary to the evidence. It appears that M&E's assertion that it would be included in the "short list" requires addition of points awarded by the DER in violation of Section 120.53(5)(c), Florida Statutes. 49-50. Rejected. While "instructions in a competitive bidding solicitation can be rendered ambiguous by their location," in this case, the instructions contained in the RFSOQ referred readers to Attachment F for the reporting of minority business utilization information. Attachment F's directions are not ambiguous or confusing. 51-53. Rejected, immaterial. This proposed finding is also contrary to the suggestion that the instructions were unclear, and indicates, not that the instructions were unclear, but that the M&E representative did not read the RFSOQ. It is not possible to find that a careful and intelligent reader of the directions to Attachment F could misunderstand the meaning of "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." 54-61. Rejected, immaterial. The fact that a substantial number of responders failed to comply with the clear directions of Attachment F does not establish that the directions are confusing. The instructions to the RFSOQ referred readers to Attachment F for the reporting of minority business utilization information. The first paragraph of Attachment F is entitled and contains "Directions" which are clearly set forth. There is nothing at all ambiguous about the requirement that "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." 62-65. Rejected, irrelevant. There is no requirement that the DER waive all irregularities. Such irregularities may be waived at the Department's discretion. The DER chose not to waive irregularities where the requirements, and the penalties for failure to comply with said requirements, were clear. The DER applied this policy appropriately and consistently. There was no appearance of favoritism when the agency's policy is fairly and consistently applied. Rejected, irrelevant. The DER expects potential responders to have read the RFSOQ prior to the pre-bid meeting. The purpose of the meeting is to answer questions and provide clarifying information. The fact that no questions were asked regarding the requirement to submit all three pages of Attachment F indicates that participants either clearly understood the requirement or had not read the RFSOQ prior to the only mandatory opportunity to obtain clarification. In any event, the DER is not obligated to read every sentence of the RFSOQ aloud at a pre-bid meeting in order to make certain that responders who fail to read the document will submit responsive SOQs. Rejected, cumulative. 68-69. Rejected, immaterial, unnecessary. Respondent Department of Environmental Regulation The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2. Rejected, unnecessary. 6. Rejected, unnecessary. 20. Rejected, unnecessary. 23. Rejected as to the implication that Attachment C, Page 1, indicated the DER could not waive any irregularities. Cited language states that information submitted in variance with instructions would not be reviewed or evaluated. The evidence establishes that information submitted in variance with the instructions was not reviewed or evaluated, but was disregarded. 28. Rejected. It is not clear what is meant by this proposed finding. 37-39. Rejected, irrelevant, unnecessary. The directions to Attachment F clearly state that all three pages must be submitted or zero points will be awarded. 41. Rejected, unnecessary. The directions to Attachment F clearly state that all three pages must be submitted or zero points will be awarded. Testimony as to the ambiguity of such directions is not credible. 42-43. Rejected, unnecessary. The directions to Attachment F clearly state that all three pages must be submitted or zero points will be awarded. Testimony as to the ambiguity of such directions is not credible, especially given M&E/PIECO's correct submission in response to similar requirements of RFSOQ #9003C. Rejected, unnecessary. The directions to Attachment F clearly state that all three pages must be submitted or zero points will be awarded. Testimony as to the ambiguity of such directions is not credible. The fact that the cited witness understood the directive and failed to comply due to oversight does not suggest that the directive was unclear. Rejected, unnecessary. The directions to Attachment F clearly state that all three pages must be submitted or zero points will be awarded. The reason for the cited witnesses failure to comply is unclear. Rejected, cumulative. 48. Rejected, unnecessary. 50-51. Rejected, immaterial. The issue in this case is not whether to goals of the minority business utilization program are met, but whether the DER acted inappropriately in reviewing SOQs submitted in response to the DER RFSOQ #9111C. 52-53. Rejected, unnecessary. 54-56. Rejected, unnecessary, cumulative. Intervenor ERM-South The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2. Rejected, cumulative. 14-19. Rejected, irrelevant, unnecessary. See preliminary statement. 21. Last sentence rejected, contrary to the greater weight of the evidence which establishes that the DER applied the language of the RFSOQ in a reasonable way, and that material information submitted in variance with the instructions was not reviewed or evaluated. 32-39, 41. Rejected, immaterial. The issue is whether the failure to follow the clear directions of Attachment F should result, as the directions provide, in zero points being awarded. The fact the DER could have examined the information submitted by ERM-South and ascertained the information which would have been set forth in the complete attachment is irrelevant. The agency is under no obligation to review the information submitted for the purpose of determining a responders' minority business status. Such information is to be provided in the three pages of the completed attachment. 40. Rejected, contrary to the evidence. There is no evidence that the omission of Attachment F, page three, is the sole basis for exclusion of a contractor from the short list. The short list was determined by ranking scores awarded. As stated in the directions to Attachment F, the result of noncompliance with said directions was an award of zero points for minority business utilization. 42-46. Rejected, cumulative, contrary to the greater weight of the evidence which establishes that the DER's action in reviewing the submitted Attachment F was reasonable, logical, and was applied in a consistent manner. As to whether the DER should have contacted other agencies to determine MBE status, the agency is under no obligation to do so. 47-49. Rejected, contrary to the clear directions of Attachment F, which state that "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package. Failure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." It is simply not possible to find, as suggested in the proposed finding, that such language cannot be relied upon to put contractors on notice that the failure to submit the three pages would result in zero points. Rejected, contrary to the evidence and to the clear directions set forth at Attachment F. Rejected, irrelevant. 52-54. Rejected, contrary to the evidence and to the clear directions set forth at Attachment F. 55-57. Rejected, irrelevant. 59-64. Rejected, irrelevant, unnecessary. See preliminary statement. Intervenor ITC The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Proposed findings of fact #7, #10 and #14-16 relate to evidence introduced at hearing by ITC to support it's position that it had been excluded from the "short list" due to DER's clerical error. As stated in the preliminary statement, ITC failed to timely file a notice of protest subsequent to the posting of the bid tabulation results challenging the DER's clerical error. Accordingly, this Recommended Order does not set forth Findings of Fact related to the clerical error due to ITC's failure to timely file a written notice of protest as required by Section 120.53(5)(b), Florida Statutes. 12. Rejected. The M&E formal written protest does not allege that the DER had improperly drawn the line for the "short list." 18-20. Rejected. Although likely correct, the proposed findings are irrelevant to the issue in this case. Rejected. Such additional points awarded to M&E by the DER appear to have been awarded contrary to Section 120.53(5)(c), Florida Statutes. Rejected, cumulative. ITC had an opportunity to timely file a written notice of protest subsequent to the bid tabulation posting, but failed to do so. An intervenor takes the case as it is found. Rejected, cumulative. 25. Rejected, contrary to the evidence. The evidence does not establish that the failure to complete all of Attachment F was based on it's inapplicability. Attachment F clearly states that inapplicable pages should be so marked and submitted with the response package. If such pages were not returned, as suggested, because there did not apply, then it is reasonable to conclude that the responder failed to read the clearly stated directions to Attachment F. 26-29. Rejected, irrelevant. The DER did nothing more than apply the clearly stated direction that "[a]t a minimum, the entire three page Attachment F shall be submitted in the response package" and imposed the clearly stated penalty, stating that "[f]ailure to submit this Attachment in the response package shall result in the responder receiving a score of zero (0) for minority business utilization." 32-33. Rejected, contrary to the greater weight of evidence that the DER did not waive irregularities where the requirements, and the penalties for noncompliance with said requirements, were clearly stated. The DER did waive other irregularities where the instructions were ambiguous or confusing, or where there was not a specific penalty attached for the failure to follow a specific requirement. The evidence establishes that the DER actions were appropriate. 34. Rejected, immaterial. All three pages of Attachment F were clearly required to be submitted or a score of zero would be awarded. Intervenor E&E The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2-3. Rejected, cumulative. 12. Rejected, contrary to the cited evidence. Although Attachment F was discussed in terms of reporting requirements, there were no questions asked related to the directions for completing or submitting the attachment. 21. Rejected, cumulative. Intervenors EBASCO, ABB, OHM, Cherokee and Westinghouse jointly filed a proposed recommended order. The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 13, 16-17, 43-45, 47. Rejected, unnecessary. COPIES FURNISHED: Carol Browner, Secretary Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esq. General Counsel Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carolyn S. Raepple, Esq. Carlos Alvarez, Esq. 123 S. Calhoun Street Post Office Drawer 6526 Tallahassee, Florida 32314 E. Gary Early, Esq. Assistant General Counsel Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32399-2400 M. Christopher Bryant, Esq. 2700 Blairstone Road, Suite C Post Office Box 6507 Tallahassee, Florida 32301 George N. Meros, Esq. 101 North Monroe Street Tallahassee, Florida 32301 Barrett G. Johnson, Esq. 315 South Calhoun Street, Suite 750 Tallahassee, Florida 32301 Rex D. Ware, Esq. 106 East College Avenue Highpoint Center, Suite 900 Tallahassee, Florida 32301 W. Robert Venzina, III, Esq. Mary M. Piccard, Esq. 1004 DeSoto Park Drive Post Office Box 589 Tallahassee, Florida 32399-0589 Harry R. Detwiler, Jr., Esq. Post Office Drawer 810 Tallahassee, Florida 32302
Findings Of Fact Based upon the documentary evidence received and the entire record compiled herein, the following relevant facts are found. By letter dated March 2, 1982, Respondent, Department of Transportation, advised Petitioner that its application for certification as a Minority Business Enterprise was denied on the basis that it "[l]acks minority ownership and control." By letter dated March 9, 1982, Petitioner, in the person of its Vice President, Charles J. Cedeno, appealed the Respondent's denial. Pursuant to a notice of hearing dated April 1, 1982, issued by Hearing Officer Charles C. Adams, a hearing on the denial of certification of Petitioner was held on July 7, 1982, in Tallahassee, Florida. Petitioner did not have a representative at that hearing, although based upon a representation from Respondent's counsel, Vernon L. Whittier, Jr., indicating the possibility that Petitioner was considering the possibility of requesting a continuance of the July 7, 1982, hearing, the matter was in fact continued by Hearing Officer Adams and rescheduled for hearing by service of a notice of hearing dated July 19, 1982, scheduling the matter for hearing on September 15, 1982, in Tallahassee, Florida. Copies of the notice of hearing were sent to the parties of record and there was no showing that the notice of hearing was returned as being undeliverable. As noted herein, Petitioner did not appear at the subject hearing herein nor was any communique received from Petitioner indicating that a continuance was being requested. During the hearing, counsel for Respondent made an ore tenus motion to dismiss the Petition on the ground of default as Petitioner failed to appear at the time and place noticed for hearing. That motion was granted by the undersigned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent, Department of Transportation, issue a final order denying Petitioner's application for certification as a Minority Business Enterprise. RECOMMENDED this 28th day of September, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1982.
The Issue The issues for determination in this proceeding are: (1) whether the Respondent properly rejected the lowest bid because the bid did not comply with the requirements set forth in the Project Manual, and (2) whether the Respondent properly awarded the bid to the second lowest bidder.
Findings Of Fact Findings Based Upon Stipulation of All Parties The Respondent, Florida Board of Regents, issued a Call For Bids, as published in Vol. 16, No. 7, February 16, 1990, issue of the Florida Administrative Weekly, for project number BR-183, Life Safety and Fire Code Corrective Work, J. Hillis Miller Health Center, University of Florida., Gainesville, Florida. Sealed bids were received on March 15, 1990, at which time they were publicly opened and read aloud. Petitioner, Anglin Construction Co. (hereinafter referred to as "Anglin"), submitted the lowest monetary bid for the project; and Charles R. Perry (hereinafter referred to as "Perry") submitted the second lowest monetary bid on the project. By letter dated March 19, 1990, the University of Florida notified Anglin that its bid proposal, submitted on March 15, 1990, had been found to be in non-compliance with the Project Manual and rejected by the University of Florida. The specific reason for non-compliance was that Anglin's advertisement for Minority Business Enterprise ("MBE") participation, as part of its demonstration of good-faith effort, did not appear in the media at least seven (7) days prior to bid opening. On March 23, 1990, the contract for this project was awarded to Perry by the Chancellor of the Florida Board of Regents. By letter dated March 26, 1990, Anglin filed a notice of protest in regard to the award of this contract to Perry. Anglin timely filed a formal bid protest in regard to this action, which was received by the Florida Board of Regents on April 4, 1990. A representative from Anglin and Perry attended the required pre- solicitation/pre-bid meeting scheduled for March 1, 1990 for this project. Mr. Larry Ellis, Minority Purchasing Coordinator, University of Florida, was present at the pre- solicitation/pre-bid meeting and distributed a handbook entitled "Minority Business Enterprise Requirements for Major and Minor Construction Projects Survival Handbook" to those in attendance. Anglin and Perry obtained or examined the Project Manual for BR-183. By letter dated March 6, 1990, Anglin requested the Gainesville Sun newspaper to run an advertisement for seven (7) consecutive days to solicit bids from qualified MBE/WBE companies for BR-183. The advertisement in the Gainesville Sun was initially published in the March 9, 1990 edition and ran consecutively through the March 15, 1990 edition. The Project Manual, at page L-2 of L-13 pages, Special Conditions section, paragraph 1.7.2.2, provides that advertisements for minority business enterprises must run or be published on a date at least seven (7) days prior to the bid opening. Findings Based Upon Documentary Evidence The Call for Bids provided that at least fifteen percent (15%) of the project contracted amount be expended with minority business enterprises certified by the Department of General Services and if fifteen percent (15%) were not obtainable, the State University System would recognize good- faith efforts by the bidder (Jt. Ex. 1). The Call for Bids (Jt. Ex. 1) provided that all bidders must be qualified at the time of their bid proposal in accordance with the Instructions to Bidders, Article B-2. The Instructions to Bidders, Article B-2, at page 9 of the Project Manual (Jt. Ex. 2) provided, in pertinent part, that in order to be eligible to submit a Bid Proposal, a bidder must meet any special requirements set forth in the Special Conditions section of the Project Manual. The Project Manual, Special Conditions, paragraph 1.1 at page L-1 sets forth the MBE requirements. Paragraph 1.1.2 provides that evidence of good- faith efforts will be required to be submitted to the University Planning Office within two working days after the opening of the bids. Paragraph 1.1.2 further provides that incomplete evidence which does not fully support the good-faith effort requirements shall constitute cause for determining the bid to be non- responsive. Subparagraph 1.7.2.2 of the Special Conditions section in the Project Manual at page L-2 (Jt. Ex. 2) provides that a contractor, as part of meeting the good-faith efforts for this project, should advertise to inform MBEs of contracting and subcontracting opportunities, through minority focus media, through a trade association, or one local newspaper with a minimum circulation of 25,000. Subparagraph 1.7.2.3 provides for required documentation and provides for a copy of the advertisement run by the media and the date thereof. The copy of the tear sheet from The Gainesville Sun for Anglin regarding BR-183 and the affidavit from the Gainesville Sun reflect that Anglin's advertisement ran or was published beginning March 9, 1990, which was six (6) days prior to bid opening, through March 15, 1990 (Jt. Ex. 9 at section 1- 7.2). Anglin's advertisement did not run in the Gainesville Sun seven (7) days prior to the bid opening (Jt. Ex. 9 at section 1-7.2, and Jt. Ex. 8). The Respondent interprets paragraph 1.7.2.2 to require that advertising through minority focus media, through a trade association or one local newspaper with a minimum circulation of 25,000 to be run on at least one day, seven (7) days prior to the day the bids are opened. Anglin ran an otherwise qualifying advertisement for seven (7) consecutive days, the seventh of which was the day the bids were opened. Anglin sent letters to fourteen (14) minority businesses qualified for participation in state contracts inviting participation and providing information about the program. These letters indicated that Anglin would subdivide work to assist in their participation and invited them to inspect the drawings. Anglin sent followup letters to the same fourteen (14) minority businesses. Anglin apparently divided portions of the electrical work between two minority businesses and included their estimates totaling $288,000.00 in the bid which is at issue (see Jt. Ex. 9 at section 1-7.7). A representative of Anglin, Dennis Ramsey, attended the pre- solicitation/pre-bid meeting on March 1, 1990 (Jt. Ex. 4). One of the purposes of the pre-solicitation/pre-bid meeting is to invite MBEs to attend to become familiar with the project specifications and to become acquainted with contractors interested in bidding the project. The Project Manual, Instructions to Bidders, B-23 at page 16 (Jt. Ex. 2) provides that the contract award will be awarded by the Respondent for projects of $500,000.00 or more, to the lowest qualified bidder, provided it is in the best interest of the Respondent to accept it. The award of the contract is subject to the provisions of Section 287.0945, Florida Statutes, and the demonstration of "good-faith effort" by any bidder whose Bid Proposal proposes less than fifteen percent (15%) participation in the contract by MBEs. The contract award will be made to the bidder who submits the lowest responsive aggregate bid within the pre-established construction budget. Sealed bids for BR-183 were opened on March 15, 1990 (Jt. Ex. 1). Anglin's bid of $1,768,400.00 was the lowest monetary bid (Jt. Ex. 5). Perry was the second lowest monetary bidder (Jt. Ex. 5). Anglin submitted its bid proposal (Jt. Ex. 6) and documentation of good-faith efforts for BR-183 (Jt. Ex. 9). Anglin was notified by letter dated March 19, 1990 that its bid proposal had been found to be in noncompliance with the requirements of the Project Manual and was, therefore, rejected. The specific reason for Anglin's noncompliance was that the advertisement for MBE participation did not appear in the media at least seven (7) days prior to the day the bids were opened (Jt. Ex. 10). By letter dated March 19, 1990, the Project Manager from the architectural and planning firm responsible for BR-183 recommended to Respondent that the contract be awarded to Perry (Jt. Ex. 11). By letter dated March 20, 1990, the University of Florida recommended to the Director of Capital Programs for Respondent that Perry be awarded the contract for BR-183 for the base bid and alternates #1 through #5 in the amount of $1,789,400.00 (Jt. Ex. 12). The Respondent awarded the contract to Perry on March 23, 1990 (Jt. Ex. 14). The MBE award to electricians of $288,000.00 is 16.29% of the $1,768,400.00 Anglin bid.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Board of Regents award the contract to Anglin. DONE AND ENTERED this 18th day of July, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 18th day of July, 1990. APPENDIX "A" TO RECOMMENDED ORDER IN CASE NO. 90-2652BID Anglin and Perry's proposed findings of fact were adopted as paragraphs 1 through 10 of this Recommended Order. The Board of Regents' proposed findings of fact, which duplicated the stipulation, were adopted as paragraphs 1 through 10 of this Recommended Order, and otherwise ruled upon as follows: Adopted as paragraph 11. Adopted as paragraph 12. Adopted as paragraph 20. Rejected as a conclusion of law. Rejected as a conclusion of law. Adopted as paragraph 19. Adopted as paragraph 13. Adopted as paragraph 14. Rejected as a conclusion of law. Adopted as paragraph 21. Adopted as paragraph 22. Adopted as paragraph 15. Adopted as paragraph 23. Adopted as paragraph 24. Adopted as paragraph 25. COPIES FURNISHED: Charles B. Reed Chancellor of Florida State University System 325 W. Gaines Street Suite 1514 Tallahassee, Florida 32399-1950 Gregg Gleason, Esquire General Counsel Board of Regents 107 W. Gaines Street Room 210-D Tallahassee, Florida 32301 Jane Mostoller, Esquire Assistant General Counsel Board of Regents 325 W. Gaines Street Tallahassee, Florida 32399-1950 William B. Watson, III, Esquire Watson, Folds, Steadham, Christmann, Brashear, Tovkach & Walker P.O. Box 1070 Gainesville, Florida 32602 Raymond M. Ivey, Esquire Rakusin, Ivey, Waratuke, Solomon & Koteff, P.A. 703 North Main Street Suite A Gainesville, Florida 32601 =================================================================
The Issue Whether Petitioner should be certified by Respondent as a minority business enterprise.
Findings Of Fact Petitioner, Jupiter Environmental Laboratories, Inc. (Jupiter), is an environmental testing laboratory established in October 1995. The services performed by Jupiter include testing samples of water, oil, soil, and waste water in accordance with the Environmental Protection Agency standards. Jupiter also tests for inorganic and organic compounds by mass spectrography and gas chromatography. Jupiter is owned 70 percent by Glynda Russell, a female, and 30 percent by her husband, Edward Dabrea, who is a non- minority. Prior to forming Jupiter, Ms. Russell had not worked in a laboratory such as Jupiter. Her work experience had been in real estate and selling women's apparel. According to Ms. Russell she did gain some knowledge and experience in environmental testing because she was a customer of testing laboratories while she was in the real estate business. She became familiar with the Environmental Protection Agency's requirements while she was investigating environmental impacts when she was a realtor. Mr. Dubrea has a degree in earth science (geology) and has done post graduate studies in geoscience (organic geochemistry). He has extensive work experience in environmental testing laboratories. Both Ms. Russell and Mr. Dabrea are jointly liable for a $50,000 loan from the Small Business Administration and a $15,000 line of credit. Ms. Russell has also incurred debt of over $100,000 on her personal credit card for Jupiter's expenses. The company has three equipment leases which Ms. Russell signed and indicated she was personally liable. Ms. Russell also signed the lease for the space occupied by the business. Ms. Russell is the president of the corporation. Her duties include directing all marketing, sales, and financial operations. She is responsible for recruiting and hiring personnel, maintaining state certifications, prioritization of work flow (sample pick-up, sample log-in and report generation), bid pricing, selection of subcontracting laboratories, customer service and purchasing of supplies. Mr. Dabrea is the Technical Director for the company. In addition to working for Jupiter, he does freelance research. His resume states that his work at Jupiter includes the following: Planned and organized all technical details for new laboratory, including equipment requirements and analytical supplies. Received and setup instrumentation, performs necessary calibrations. Coordinates information with Laboratory Director and QA/QC Officer. Develops new methods and provides research assistance to clients with unusual assessments. Coordinates between laboratory and governmental agency to ensure compliance. Submits performance evaluation studies to E. P. A. for certification on quarterly basis. Responsible for ensuring adequate instrument capacity for continued growth of the company. Cliff Ross, a non-minority, is the Laboratory Director and works part-time for Jupiter. Start-up funds for Jupiter were contributed by Ms. Russell and Mr. Dabrea. Ms. Russell contributed $25,000 in cash, and computer equipment worth approximately $8,000. Mr. Dabrea contributed an $11,000 truck and $5,000 in computer equipment. Ms. Russell contributed 67 percent and Mr. Dabrea contributed 32 percent. Jupiter is certified in certain categories of environmental water testing by the State of Florida, Department of Health, pursuant to Chapter 403, Florida Statutes. In order to acquire such certification, tests must be performed in the laboratory by qualified technical personnel with the proper educational credentials. In order to acquire the certification for Jupiter, the tests were performed by Mr. Dabrea and Mr. Ross. Ms. Russell is not technically or educationally qualified to perform the tests required for certification. It is not necessary to have the certification to operate an environmental laboratory, but many companies acquire the certification as a marketing tool. Ms. Russell indicated in her response to the denial of her certification that "current market conditions make it all but impossible to get work without it." (Petitioner's Exhibit No. 1.) Ms. Russell can perform the extractions. Once the extractions are done for certain types of testing, the testing is automated. She cannot do chromatography. The Quality Assurance Director for Jupiter is Pamela Shore-Loeb. Her duties include responsibilities for all quality assurance and quality control requirements to ensure continued State of Florida laboratory certifications and project management to a growing client list. She, along with Ms. Russell, developed the quality assurance manual used by the business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner, Jupiter Environmental Laboratories, Inc., meets the requirements of Rule 38A-20.005(2)(c), Florida Administrative Code, but does not meet the requirements of Rules 38A- 20.005(3)(c), (d)1, 4 and (6) and (4)(a), Florida Administrative Code. Consequently, the final order should deny Jupiter Environmental Laboratories, Inc.'s application for certification as a minority business enterprise. DONE AND ENTERED this 1st day of December, 1997, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1997. COPIES FURNISHED: Joseph L. Shields, Esquire Department of Labor and Employment Security Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Glynda E. Russell, President Jupiter Environmental Laboratories, Inc. 220 Venus Street, Suite 16 Jupiter, Florida 33458 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
Findings Of Fact Anthony Charles Fabian, a journeyman electrician, is the president of Fabian's Electrical Contracting, Inc. (FEC). Mr. Fabian owns 51 percent of the stock in FEC. FEC was incorporated in 1984 and since that time has been continuously engaged in the electrical contracting business. In 1987, FEC applied for and received certification as a minority business enterprise (MBE). Mr. Fabian has at all times maintained he is entitled to MBE status as a Hispanic American. Mr. Fabian was born in Tampa, Florida and lived in a Hispanic neighborhood there until he was six years old. During the time he resided in Tampa, Mr. Fabian's neighbors, family, and friends used Spanish as their predominant language. The family culture was Cuban as was that of the area where the family resided. At age six Mr. Fabian moved from Tampa to Pensacola, Florida. Mr. Fabian later moved from Pensacola to Tallahassee mid-way through his sixth grade. School mates in Pensacola and Tallahassee called him various ethnic nicknames, all related to his Hispanic ancestry. Such names included: "Julio," "Taco," "Spic," "El Cubano," and "Cuban Wheatman." Other than an affection for Cuban food, Mr. Fabian currently has no cultural practices to tie him to his Hispanic heritage. Mr. Fabian does not speak Spanish. Mr. Fabian does not reside in a predominantly Hispanic community. Mr. Fabian does not practice the religious faith of his progenitors. Mr. Fabian does not instruct his child in any Cuban cultural practice. Mr. Fabian does not know of any Spanish cultural aspect that came to him from his family. Mr. Fabian has never been refused work because of his Hispanic heritage. Mr. Fabian's mother has no Hispanic progenitors. Mr. Fabian's father, also born in Tampa, Florida, has the following ancestors: his father (Mr. Fabian's grandfather) was born in Spain, his mother (Mr. Fabian's grandmother) was born in Key West. Mr. Fabian's grandmother, Anna Rodriguez Fabian, who Mr. Fabian spent time with in Tampa spoke Spanish and claimed Cuban heritage as both of her parents had immigrated from there to Key West. For this reason, Mr. Fabian maintains he is a Cuban from Tampa. None of Mr. Fabian's grandparents was born in Mexico, South America, Central America, or the Caribbean. He has never claimed otherwise. Sometime after FEC obtained certification as a MBE, the Department adopted what is now codified as Rule 60A-2.001(8), Florida Administrative Code. Such rule defines "origins" as used in Section 288.703(3)(b), Florida Statutes, to mean that a Hispanic American must substantiate his cultural and geographic derivations by at least one grandparent's birth. In July, 1992, when FEC submitted its recertification affidavit, the Department notified Mr. Fabian that he had failed to establish that at least one of his grandparents was born in one of the applicable geographic locations. Accordingly, Mr. Fabian was advised his request for recertification would be denied. Approximately eleven other persons have been denied minority status because they were unable to substantiate origin by the birth of a grandparent. Of those eleven, none had been previously certified. FEC is the only formerly certified MBE which has been denied recertification because of the rule. However, when FEC was granted certification in 1987 it was not based upon the Department's agreement that Mr. Fabian met the statutory definition of a Hispanic American. Such certification was issued in settlement to the preliminary denial of certification since the word "origins," as used in the statute, had not as yet been defined by rule. Additionally, the recertification of FEC was based upon Department error and not an agreement that Mr. Fabian met the "origins" test. Finally, in 1991, the Department cured the rule deficiencies to create parallel requirements for certification and recertification for MBE status. When FEC submitted its recertification affidavit under the current rule, the request was denied. Mr. Fabian has been aware of the Department's position regarding his requests for recertification from the outset; i.e. since 1987. The Department promulgated the "origins" rule in response to a number of applications for MBE status from persons with distant relations or ancestors within the minority classifications. The necessity for an "origins" rule was demonstrated since the Department needed a clear standard, which staff and the public could recognize as the dividing line for who would and would not qualify as a Hispanic American, and since the purpose of the program is to provide preferences in contracting to businesses run by individuals who have been disadvantaged. In deciding to use the grandparent test, the Department looked to outside sources. Since there was no legislative history resolving the "origins" issue, the Department sought guidance from dictionary definitions and statutory uses in other contexts. In promulgating the rule, the Department gave notice to outside sources, including groups listed in the publication Doing Business in Florida, such as the Department of Commerce, Bureau of Commerce, small business development centers, community development corporations, local minority business certification offices, and the Minority Business Advocate's office. At the public hearing conducted for the purpose of receiving input regarding the grandparent test, no one offered opposition to the "origins" definition. Mr. Fabian is not a black American as defined in Section 288.703(3)(a), Florida Statutes.
