The Issue Whether a consumptive-use permit for quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500043 requested water from one (1) well. The center of withdrawal will be located at Latitude 27 degrees 40' 38" North, Longitude 82 degrees 29' 31" West in Hillsborough County. Said withdrawal is for disposal off-site. This application is for an existing use. Notice was published in a newspaper of general circulation, to-wit: The Tampa Tribune on May 14 and May 21, 1975 pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The application, map of the premises, legal description, receipts of certified mail, copy of the Notice, and affidavit of publication were received without objection and entered into evidence as Exhibit 1. No letters of objection were received. The witness for Permittee was duly sworn and agreement was reached on each point enumerated as required by Rule 16J-2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes with the exception as enumerated in No. 7. Upon request of the Hearing Officer a Joint Stipulation was filed in which it was agreed that the following conditions to the permit should be attached: "1. That applicant, Carol A. Ranallo, construct two observation wells on the south side of the pit mutually agreeable locations by inserting six (6) inch casings and screens to the depth of at least fifty (50) feet. The casings to be grouted in the bore hole from the bottom of the casing to the top of the ground level. The sites of the observation wells shall be selected by James Hudson of Delta Engineering Company and G. P. Szell within 15 days after issuance of the Consumptive Use Permit. 2. That the applicant or its agents or employees submit monthly readings to the staff of the Southwest Florida Water Management District of the chloride content of the water being withdrawn from the two wells and the level of the water table as read and determined under static conditions."
The Issue The issues in this bid protest are whether, in making a preliminary decision to award a staff augmentation contract, Respondent acted contrary to a governing statute, rule, policy, or project specification; and, if so, whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact The parties' Joint Pre-Hearing Stipulation2 and the evidence presented at final hearing established the facts that follow. The Request for Proposals On July 26, 2001, the District issued Request for Proposals C-11940 (the "RFP"). The purpose of the RFP, as set forth on page one thereof, was to solicit technical and cost proposals from qualified respondents [for a staff augmentation contract.3] The South Florida Water Management District (District) is interested in establishing a single qualified information systems/technology contracting firm to provide the services defined herein on an as-needed basis. Contingent upon the responses received as a result of this Request for Proposals (RFP), the District will determine which respondent meets the required standards and qualifications through an evaluation process. The Vendor meeting the required standards and qualifications will be determined to be “pre-qualified” to provide information systems/technology services to the District. The deadline for submission of proposals in response to the RFP was Monday, August 27, 2001 at 2:30 p.m. Section 1.12 of the RFP, which is relevant to this protest, stated as follows: REJECTION OF RESPONSES The District reserves the right to reject any and all responses when such rejection is in the District's interests. Minor irregularities contained in a response may be waived by the District. A minor irregularity is a variation from the solicitation that does not affect the price of the contract or does not give a respondent an advantage or benefit not enjoyed by other respondents, or does not adversely impact the interests of the District. The District further reserves the right to cancel this solicitation at any time if it is in the best interest of the District to do so. Section 1.13 of the RFP stated, in pertinent part:
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter a Final Order that declares DUA’s proposal to be materially non-responsive and, accordingly, rescinds the proposed award to DUA. In addition, while recognizing that the choice of remedies for invalid procurement actions is within the agency’s discretion, it is nevertheless recommended that, rather than reevaluate or reject all responsive proposals, the District award the contract to the highest-ranked responsive proposer, Syslogic. DONE AND ENTERED this 18th day of January, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 2002.
The Issue The issue is whether the Department of Environmental Protection's (the Department) intended award of a contract based on RFP 2006011C to A & L Weed Control (A&L), is contrary to the agency's governing statutes, rules, or policies, or the bid or proposal specifications, or was otherwise unlawful.
Findings Of Fact Floating islands and tussocks Lakes and rivers in Florida, as a result of the drought of the late 1990's, experienced an encroachment of vegetation in rivers and lake bottoms that were historically covered by water. Subsequently, when rain increased and the lakes and rivers regained their usual banks, organic sediments, and vegetation popped up from the bottoms and became tussocks and floating islands. Tussocks are floating masses of aquatic plants. Floating islands are comprised of mud or peat ranging in thickness from a few inches to several feet. Woody herbaceous plants grow on the floating islands, including trees up to ten inches in diameter and up to 25 feet in altitude. In addition to derogating the general ecology of lakes and rivers, tussocks and floating islands can jam against bridges and flood control structures, which may cause flooding or structural damage. Accordingly, the Department's Bureau of Invasive Plant Management, as well as water management districts and counties, have determined that tussocks and floating islands must be attacked. One of the methods of reducing tussocks and floating islands is to shred them with mechanical shredders mounted on barge-like vessels. When DEP Contract SL825 was issued in 1999, addressing the shredding of tussocks and floating islands, only two shredders were available. At that time the problem of floating islands and tussocks was not as large as it subsequently became. By June 2005, six different shredders were operating under several different agency contracts in Florida's public waters. Issuance of the request for proposals Jeffrey David Schardt was an Environmental Administrator with the Department at the time the decision was made to promulgate an RFP. He was a section administrator for the Aquatic Plant Management Program under the cognizance of the Bureau of Invasive Plant Management. When DEP Contract SL825 came to an end in 2004, he determined that floating islands and tussocks continued to present a problem that must be addressed. He determined that shredding could solve or reduce the problem. Among the shredding machines that he contemplated using to accomplish this was the Cookie Cutter or Swamp Devil. Mr. Schardt did not think that an invitation to bid (ITB) would be practicable in seeking a contractor to address the problem. An ITB is used when the state is seeking a commodity or service that can be specifically defined and when the dominant decision factor, and competitive factor, is price. The precise definition of an ITB is found at Subsection 287.012(16). An RFP is used when it is not practicable for the agency to specifically define the scope of work for which the commodity or service is required and when the agency is requesting that a responsible vendor propose a commodity or contractual service to meet the specifications of the solicitation document. In the case of an RFP, price may not be the dominant feature. An RFP contemplates the formation of a contract with the prevailing proposer. The precise definition of an RFP is found at Subsection 287.012(22). Because there were so many variables between the floating islands and tussocks, and because he was aware of the various machines that could reduce the floating islands and tussocks, Mr. Schardt suggested to the Department's procurement section, that an RFP was the appropriate vehicle to seek contractors to propose methods to resolve the problem. At some point in the process, a point that cannot be ascertained with exactitude, Mr. Schardt prepared an undated writing that set forth the problem to be addressed and which assumed, without specific analysis, that an ITB was not practicable and that an RFP was the procurement method that should be used. It is obvious from reading the two documents, that much of what Mr. Schardt set forth in this writing was included in the "scope of services" portion of the RFP that was eventually prepared. However, there is no evidence that the writing was circulated or that it was ever extracted from his computer and printed until the December preceding the January 2007 hearing. Mr. Schardt discussed his conclusions with Shelly Kelley of the Department's procurement section, who acquiesced in Mr. Schardt's suggestion that an RFP should be used. Ms. Kelley, as part of her job in the Department's procurement section, helped develop the RFP document, put the document together, advertised it, received proposals, sent proposals and other materials to the appointed evaluators, and posted the decision. The contract contemplated by the RFP would be let for a period of five years, with a renewal period of three years. As part of the Department's procurement process, Kat Ethridge, of the Bureau of Invasive Plant Management, who was designated contract manager for the procurement, prepared a Contract Initiation Form. This form provided pertinent information, including the effective period. It identified the funding source and provided a scope of services. The Contract Initiation Form was dated July 20, 2005, and was provided to Ms. Kelley. The Contract Initiation Form had a box printed on it. The material printed in the box was entitled Proposed Method of Contracting. Among the choices in the box, which invited the user to check a choice, were Invitation to Bid, Request for Proposals, and Invitation to Negotiate. None of the choices were selected. This was due to an oversight on the part of Kat Ethridge or persons in the procurement section. During the period August 4, 2005, through August 29, 2005, a series of emails between Kat Ethridge and Ms. Kelley discussed the RFP. However, these emails did not contain a discussion of the practicability of an ITB vis-à-vis an RFP. The writings evidencing support for the decision, as well as the testimony of record, taken as a whole, demonstrate that the decision to issue an RFP rather than an ITB was a conscious one that was made with a consideration of the alternatives and of the practicality of an ITB. The evidence indicates that no particular individual made the decision to use an RFP. The evidence suggests, rather, that it was a collective, organic decision that was made after rational contemplation. However, the writings are insufficient to proved compliance with Subsection 287.057(2)(a), which states, "If an agency determines in writing that the use of an invitation to bid is not practicable, commodities or contractual services shall be procured by competitive sealed proposals." There was no agency determination in writing that the use of an ITB was not practicable. Responses to the RFP The RFP was dated October 25, 2005, and was released on that date. No party filed a challenge to the decision to issue the procurement as an RFP within 72 hours after the posting of the solicitation, as they were entitled, pursuant to Subsection 120.57(3)(b). Four proposers responded. All proposals were filed with the Department, according to their date stamps, on November 22, 2006. Both A&L and Texas were determined by the Department to be "responsible vendors," as that term is described in Subsection 287.012(24). Both were "responsive vendors," as that term is described in Subsection 287.012(26). On December 20, 2005, the Department posted its "Notice of Intended Award for DEP Solicitation 2006011C," announcing that A&L was selected as the primary contractor and Texas was selected as the secondary contractor. It further noted that the 72-hour protest period commenced at 2:30 p.m. on December 20 and would end on December 23, 2005. When Texas timely protested the award it was required to submit a bond in the amount of $125,000. Texas was informed of this amount by Ms. Kelley in an email dated December 23, 2005. Texas complied with this requirement by providing a certified check in the amount of $125,000. The $125,000 supposedly represented ten percent of the value of the contract, which the Department estimated to be worth $12,500,000 over a period of five years. However, this was an "as needed" contract, so the contractor might be asked to do $12,500,000 worth of work, or no work at all. The $12,500,000 figure was, at best, an educated guess based on previous year's expenditures. The ultimate total cost figure will be weather-dependent, work-dependent, and appropriation- dependent. The total cost of the contract cannot now be determined. In discussing the evaluations below, matters involving two proposers, Lomonico Contracting, Inc., and Weedbusters, Inc., will not be discussed because they did not contest the actions of the Department with regard to the RFP. Evaluation of the responses Mr. Schardt selected five evaluators to score the responses. The evaluators were chosen because of their experience in addressing the problem of floating islands and tussocks. When the proposals were received they were provided to the evaluators for scoring. In addition to the proposals they were given a copy of the RFP and a memorandum written by Ms. Kelley dated December 12, 2005. The memorandum was entitled, "RFP Review Process" and had attached to it a "Conflict of Interest Certification." It also included an Evaluation Criteria Scoresheet and the evaluators were instructed to complete it down to the "past performance" section. The memorandum provided to the evaluators, instructed them, among other things, to sign the Conflict of Interest Certification and to independently evaluate each proposal, using the evaluation criteria contained in the RFP. No additional instructions were given to the evaluators, either written or oral. The evaluation of the proposals did not consider the total cost for each year because, for the reasons set forth in Finding of Fact 22, annual cost could not be determined. Evaluation by Jones Kenneth Dean Jones was a designated evaluator. He received the instructions, the RFP, and the responses. He read the scope of services part of the RFP so that he would know what the Department was seeking. He understood the scope of services. He completed the Evaluation Criteria Scoresheet. Mr. Jones, at the time of the hearing, was employed by Precision Land Investments, but prior to that employment he worked for Polk County Natural Resources for 15 years. While working for Polk County, he was involved with aquatic weed control for ten years. He has seen shredding accomplished by the use of cookie cutters. He is not familiar with any other type of aquatic shredding machine. Mr. Jones had observed both A&L and Texas using their machines on Florida water bodies on numerous occasions. Both were using cookie cutter machines at the time he observed them. A&L proposed using its Adja-tater machine in its response to the RFP, but Mr. Jones had never seen that machine in use. He had observed Texas' cookie cutter and Tiger Cutter, a smaller version of the cookie cutter, working in the field. In completing the Evaluation Criteria Scoresheet, Mr. Jones gave A&L five points in the equipment category and gave Texas four. He gave A&L more points in the equipment category because A&L proposed to use three machines and two of them were larger. He made that judgment based on what was contained in the proposal. His observations of the two providers in the field, gave him insight into his evaluation. However, his personal observations played no role in his scores. Mr. Jones did a rough cost-benefit analysis of the proposals. This resulted in his conclusion that although A&L proposed to charge more per hour, A&L's Adja-tater was two to ten times more efficient that Texas's cookie cutter. He did not do an analysis between the Adja-tater and the Tiger Cutter, but he was aware that the Tiger Cutter is smaller than either a cookie cutter or an Adja-tater. Mr. Jones was aware that the machines sought should be capable of operating beneath bridges and obstructions, and in shallow water. He had seen the machines, except the Adja-tater, in operation. Based on his observations and the response provided by A&L in the case of the Adja-tater, he concluded that all of the machines in the proposals could satisfy the requirement to operate under obstructions and in shallow water. He did not factor in these matters when arriving at a score under Part IIC of the Evaluation Criteria Scoresheet. Mr. Jones fairly evaluated the four proposers and applied all criteria fairly and uniformly to them. He gave A&L a total score of 164 and gave Texas a total score of 146. Evaluation by Hinkle Carl Joseph Hinkle was also an evaluator. At the time of his evaluation he was employed by the Department's Bureau of Invasive Plants. He has worked for the Department for more than 32 years. He was provided the instructions, the RFP, and the responses. Mr. Hinkle gave A&L a score of five in the historical background category and gave Texas a score of four. He did this based on the information provided in the responses and on his observations of A&L working in the field. He gave A&L a score of five in the experience category and gave Texas a score of four. He did this based on the number of years each company had been in the business. He noted that Texas had six years' experience and A&L had 20 years. He gave A&L a score of four in the personnel category and gave Texas a score of five, based on the number of personnel to be provided. He gave A&L a score of five in the equipment category and gave Texas a score of four, because A&L had more cutters. He had observed both Texas' cookie cutters and A&L's Adja-tater working and noted that the Adja-tater did more work in less time. The difference between the efficiency of the Adja-tater and the cookie cutters was the "difference between night and day," in his opinion. The Adja-taters did more in the same amount of time as a cookie cutter. He is certain that an Adja-tater shreds much faster than a Tiger Cutter. Mr. Hinkle did not consider height under obstructions and draft in his evaluation because he had observed the different machines and was of the opinion that they were all equal in those categories. In accomplishing his evaluation Mr. Hinkle properly considered Footnote 2 of the Evaluation Criteria Scoresheet. This footnote advised, "Rather than awarding the maximum points to the lowest cost, the evaluation process will consider the value received by the DEP relative to the cost." He pointed out that he was evaluating the proposals, not the vendors. He considered getting the job done efficiently to be an important criterion. Chester Catterton, the principal of A&L, purchased lunch for Mr. Hinkle a few times and perhaps as many as five times. These were working lunches at fish camps and were inexpensive. These lunches did not affect Mr. Hinkle's scoring. Mr. Hinkle fairly evaluated the four proposers and applied all criteria fairly and uniformly to them. He gave A&L a total score of 135 and gave Texas a total score of 119. Evaluation by Douglas David Ray Douglas was employed by the Florida Fish and Wildlife Conservation Commission at the time he evaluated the proposals. At the time of the hearing he had been with that agency about 19 years. Like the other evaluators, he was provided the instructions, the RFP, and the responses. He has about five years' experience in aquatic plant control. Sometime in 2005, prior to making the evaluations, he had observed both A&L and Texas engaging in the work of tussock shredding on Lake Jumper. He did a rough "productivity analysis" based on the amount of acreage shredded by the two responders in a given time, multiplied by the dollar amount being charged by them. He considered this analysis when completing the Evaluation Criteria Scoresheet's Section 2E, Cost. It also affected his score for IIC, Equipment. He awarded A&L a five in equipment and a four in cost. He awarded Texas a four in equipment and a four in cost. He also considered the material provided in the proposals in arriving at his scores. He gave A&L a total score of 134 and Texas a total score of 126. He asserted that his job was to conduct a fair and honest evaluation based on the responses to the solicitation and to use his past experience and knowledge to aid him in accomplishing that. The evidence indicates that is exactly what Mr. Douglas did. Moreover, he arrived at his findings independently of the other evaluators. Evaluation by Sullivan Terry Keith Sullivan was employed as an Environmental Specialist III with the Department at the time that he evaluated the proposals. He is assigned to monitor the environment of Lake Russo, Lake Tsala Apopka, and the Rainbow River. He has been with the Department for 20 years. Like the other evaluators, he was provided the instructions, the RFP, and the responses. He has seen both A&L and Texas operating in the field on numerous occasions and, while conducting his evaluation could not discount the field observations he made of the two responders. Mr. Sullivan was unsure if the two responders were working for the Department at the time he observed them. Sometimes shredders may be working under a county contract and sometimes under a Department contract. Often the funds a county expends for aquatic weed control are provided by the Department. He knows a few of the equipment operators for both companies. He did not believe he could determine cost effectiveness because of the wide variations of compositions of floating islands and tussocks. However, his scores reflect not just the dollar amount, but the value of the work to be done. Mr. Sullivan's scores were the result of the best rational analysis that he could make and were arrived at independently of any other evaluator. He gave A&L a total score of 126 and Texas a total score of 117. Mr. Sullivan also did some past performance reference checks, but he eventually learned that in doing so he was operating outside the scope of his assigned duty and upon learning that information, he stopped making inquiries. However, based on information the past clients provided, he gave A&L maximum scores and Texas, less than the maximum. The Department used these scores. Because the reference checks were accomplished by asking standard questions of other clients, it was the responders to those questions who provided the scores, not the person who asked the question. There is no evidence of record that Mr. Sullivan skewed the result or engaged in any nefarious plot to harm Texas. What he did was make a mistake which, upon reading the instructions provided by the Department in that regard, is understandable. They lacked clarity. Evaluation by Phillips Matthew V. Phillips, like the other evaluators, was provided the instructions, the RFP, and the responses. Mr. Phillips is a regional biologist for the Department. He has seen both A&L and Texas using their machines to shred in the field and has inspected their work. Mr. Phillips claimed that he did not recall the basis for his scores. He noted that if he had been asked at the time he did the evaluation he would have been able to explain how he arrived at his scores. He was serious about this duty, and he arrived at his scores independently and fairly. Mr. Phillips gave A&L a total score of 128 and Texas a total score of 103. Events subsequent to individual evaluations In addition to the scores based on the proposals and the knowledge of the business of shredding floating islands and tussocks, references were called on each responder for the purposes of determining past performance. Kat Ethridge, an Operations and Management Consultant at the Bureau of Invasive Plant Management, was in charge of calling entities that had previously employed the responders. She asked them for references. Specifically, she called Brian Nelson, who was with the Southwest Florida Water Management District and had observed both A&L and Texas operating their machines. Past performance scores were entered into the Evaluation Criteria Scoresheet at Paragraph IIA. The parties did not view this particular part of the evaluation process as relevant to the dispute among them, but it is noted that this was a routine part of the process that did affect the ultimate scores. Past performance inquiries were not made by the evaluators, except in the case of Mr. Sullivan, who began the process by mistake, as discussed above. The rough figures were entered into a matrix entitled "Tabulation Results." The rankings appear in spreadsheet form and were computed mechanically. A&L scored highest and Texas came in second. These computations were not at all subjective. On December 19, 2005, Ms. Kelley reported to Eva Armstrong, Director of the Division of State Lands, that the Procurement Section had calculated the rankings for each proposal based on the evaluation team's completed Evaluation Criteria Scoresheet and past performance, and that A&L was number one, and Texas was number two. The scores assigned by the evaluators were made on their assessment of the RFP, the responses to the RFP, and their experience in the field. The evaluators themselves were conscientious, fair, and experienced. They independently arrived at the same basic conclusions. There is nothing in the record to indicate that their scores were arbitrary, capricious, or contrary to the requirements of the RFP. These scores represented the evaluators' honest judgment, which was unimpeded by extraneous input. Specific objections by Texas Texas complained that the evaluators were biased in favor of A&L. Over the course of years, Mr. Catterton, the principal of A&L, bought lunches from time to time for Mr. Hinkle, as Mr. Hinkle related. He also bought lunches for Messrs. Jones, Sullivan, Phillips, and Schardt, and it is possible that he bought lunch on one or more occasions for Ms. Ethridge. The provision of these lunches usually occurred in the course of accomplishing the business of shredding tussocks and floating islands. They often were eaten at fish camps and other out-of-the-way places. They were not extravagant and the value did not exceed any statutory threshold. Upon consideration of all of the facts and circumstances, it is found that these meals did not cause the recipients to be biased in favor of Mr. Catterton's company. Texas complained that it submitted the lowest price. Texas proposed $145 per hour for a cookie cutter that was essentially identical to A&L's cookie cutter and for the operation of a smaller machine called a Tiger Cutter. A&L submitted a price of $250 for their cookie cutter and $350 per hour for their Adja-tater, plus additional rates for airboats and go devil boats if they were to be used for purposes not in connection with actually shredding vegetation. Although when judged on price alone, Texas had the lower rates, the evaluators properly considered efficiency in addition to price and concluded that the Adja-tater, and thus A&L, was much more efficient. This determination was in keeping with the terms of the RFP and the Evaluation Criteria Scoresheet. The attempt by Texas to prove that A&L's machines were too tall or that they could not operate in the shallow water, which is commonly encountered in the shredding business, were not considered important to the evaluators. The evaluators considered that with regard to draft and height of superstructure, the machines were equal. The fact that A&L did not address the height or draft issue in their proposal did not affect the proceedings. There was no evidence that the failure to consider these matters, or to consider one machine to have a draft or height advantage over the other, affected the outcome of the proceedings. Texas complained that the Department did not provide the evaluators with any formal training other than the memorandum of instruction. The memorandum was clear, with the exception of the portion addressing past performance, and the evidence indicated that the evaluators understood their role. Texas asserted that the evaluators ignored the efficiency of the operators when addressing the "cost effectiveness" criterion. Texas claimed that an interrogatory answer by the Department stated that, "Cost effectiveness is a function of . . . performance of the operator." This assertion represents an attempt to mislead. What the response said was, "Cost-effectiveness is a function of machine capability, performance of the operator, and hourly rate." The response to the interrogatory assigned no particular weight to any part of its cost-effectiveness response. The responses of both A&L and Texas listed the names of the personnel who were to operate the machinery and provided their education and years of experience. The evaluators knew some of the operators by name and had observed many they knew, and many whose names they did not know. It is apparent that these experienced evaluators did not give over-riding consideration to the question of operator capability, nor were they required to do so. With regard to cost effectiveness, Texas further asserted that the evaluators did not understand the term and did not use that criterion in scoring any category. In accomplishing his evaluation Mr. Jones did a rough cost-benefit analysis. Mr. Hinkle considered footnote 2 of the Evaluation Criteria Scoresheet. Mr. Douglas did a "productivity analysis" based on the amount of acreage shredded by the two responders in a given time multiplied by the dollar amount being charged by them. Mr. Sullivan's scores reflected not just the dollar amount, but the value of the work to be done. Because Mr. Phillips' lack of recollection of what occurred, his testimony failed to illuminate what he may have done. Contrary to Texas's allegations, it is apparent that the evaluators carefully and conscientiously considered productivity and cost in determining the cost effectiveness of the machines. That was all that was required by the RFP. The RFP did not require a machine versus machine competition. It only required a consideration of the proposals in light of the evaluators' own experience to arrive at a determination. The memorandum of December 12, 2005, addressed to the evaluation team, required the evaluators to "use the evaluation criteria contained in the RFP." It is clear that the evaluators were to evaluate the "proposals." It is equally clear that every evaluator, either substantially, or to some lesser extent, considered their own experiences in arriving at their scores. The evaluators were chosen by Mr. Schardt based on their experience in floating island and tussock shredding. If the experience of the evaluators was not important, then an evaluation panel of accountants, or lawyers, or schoolteachers may have been chosen. However, it is clear that experience counts when conducting evaluations. Moreover, Subsection 287.057(17)(a) requires that for a contract in excess of the threshold amount of Category Four ($150,000), which this contract has the potential to exceed, at least three persons appointed to evaluate proposals must have experience and knowledge in the program areas and service requirements for which the contractual services are sought. Clearly the law seeks a knowledgeable and experienced selection team which will produce evaluations in which the merits of competing proposals are fairly and competently considered. Texas asserts that A&L's proposal was not responsive and that the failure to provide responses to many requirements is fatal to A&L's proposal. This assertion is incorrect. The failure to comply with certain requirements may cause the Department to refuse to consider a submission. For instance, the RPF states that submission of the response in a timely manner is a requirement and that if the submission is not timely, it will not be considered. However, the RFP demands many responses to particular requirements, such as proposals related to the State Project Plan, yet does not make the failure to respond to them fatal. Despite the fact that the RFP seems to indicate that a response to a particular requirement is mandatory, failing to respond to a mandatory requirement does not necessarily make the response not responsive, unless the RFP specifically says it is a fatal error. Moreover, Section 15 of Attachment A of the RFP provides that the Department may ". . . waive any minor irregularity, technicality, or omission if the Buyer determines that doing so will serve the State's best interest."
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Texas Aquatic Harvesting, Inc.'s Petition be dismissed. DONE AND ENTERED this 27th day of February, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2007. COPIES FURNISHED: George E. Spofford, IV, Esquire Glenn, Rasmussen, Fogarty & Hooker, P.A. Post Office Box 3333 Tampa, Florida 33601-3333 Marshall G. Wiseheart, Esquire Jonathan H. Alden, Esquire Reagan Roane, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 E. Gary Early, Esquire Albert T. Gimbel, Esquire Messer, Caparello & Self, P.A. 2618 Centennial Place Tallahassee, Florida 32308 Lea Crandall, Agency Clerk Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue At issue is whether respondent's motion for summary recommended order should be granted.
Recommendation Based on the foregoing, it is RECOMMENDED that a final order be entered dismissing the administrative complaint filed in this matter. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of April 1990. WILLIAM J. KENDRICK 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 30th day of April, 1990.
The Issue Whether Petitioner is eligible for certification as a Minority/Woman Business Enterprise pursuant to Chapter 40E-7, Part VI, Florida Administrative Code.
Findings Of Fact Petitioner, Mathews Consulting, Inc. (MCI), is a Florida corporation, incorporated on January 28, 1998, by Rene L. Mathews, a female, and David L. Mathews, a white male. Rene and David Mathews are and were married at the time MCI was incorporated. Ms. Mathews owns 55 percent of the stock of MCI, and Mr. Mathews owns the remaining 45 percent of the stock. Ms. Mathews is the President and Treasurer of MCI, and Mr. Mathews is the Vice President and Secretary. Ms. Mathews has a bachelor of science degree in civil engineering and has been a professional engineer licensed with the State of Florida since 1995. Her primary engineering practice areas are water and waste water treatment, industrial pretreatment, civil engineering, regulatory compliance, odor control/air quality assurance, and construction management. Prior to becoming employed full time with MCI, Ms. Mathews was employed for 8 years as a civil engineer with Hazen and Sawyer. Mr. Mathews is a professional engineer employed full time by Hazen and Sawyer. He specializes mainly in underground pipeline work and landfills. MCI has a board of directors consisting of two people: Rene and David Mathews. The ByLaws of MCI provide at Article Three, Section 3: Except as provided in the Articles of Incorporation and by law, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be managed under the direction of, its Board of Directors. MCI is in the business of providing engineering consulting services in the areas of water and waste water treatment, industrial pretreatment, civil engineering, regulatory compliance, odor control/air quality assurance, and construction management. MCI obtained a $30,000 loan and a $20,000 line of credit from Barnett Bank (collectively referred to hereafter as the Loan) to be used as start-up capital for MCI. The Loan was evidenced by a promissory note and guaranteed by a security agreement. The bank required both Rene Mathews and David Mathews to individually guarantee the Loan jointly and severally because they were the owners and officers of the corporation. David Mathews is an authorized signatory on MCI's bank account. Mr. Mathews is not authorized on the company credit card or ATM card and has not signed any checks for the company. MCI submitted an application dated June 4, 1998, to Respondent, South Florida Water Management District (District), for certification as a Minority/Woman Business Enterprise (M/WBE). By letter dated June 10, 1998, the District denied MCI's application, stating the following reasons: Documents do not support real and substantial ownership by the minority or woman applicant(s). Rule 40E-7.653(2) Documents do not support that the day-to- day operations are controlled by the minority/woman, nor is there evidence that the minority possess (sic) the authority to direct the management and policy of the business. Rule 40E-7.653.4(4)(a) The composition of the Board of Directors, regardless of percentage of ownership, is not made-up of a majority of minority/woman directors. If the applicant business is a corporation and the business and affairs of the corporation are managed under the direction of a board of directors as provided in the Articles of Incorporation or ByLaws of the corporation or Section 607.0824, Florida Statute, a majority of the directors must be minority/woman, not withstanding whether the directors are required to be elected by a majority vote of the outstanding shares of the corporation. Rule 40E-7.653.4(4)(b) The June 10, 1998, letter provided that if an applicant believes that it has been wrongly denied certification that the applicant may request an administrative hearing or do the following: Submit any information or documentation which clarifies the documentation submitted with the original application and/or request the opportunity to meet with the Office of Supplier Diversity & Outreach within fifteen (15) calendar days of receipt of this notice. The District will only consider information that clarifies the documentation in your original application. Changes occurring after the submission of your original application (i.e., any changes in corporate structure) will not be accepted as clarifying documentation. This office, after its review of any clarifying information will notify the applicant business by certified mail of its final decision to either uphold or overturn its decision to deny the application for certification. If the denial decision is upheld, you may petition for an administrative hearing in accordance with Rule 40E-1.521, Florida Administrative Code. The Petition must be received by the District's Office of Counsel within fifteen days of actual receipt of notice of decision to uphold the denial of certification. On June 15, 1998, after the District had denied MCI's application, Rene Mathews had a telephone conversation with Candice Boyer, a business operations analyst with the District. Ms. Boyer explained to Ms. Mathews the decision for denial was based on the composition of the board and David Mathews' guarantee of the Loan from Barnett Bank. After the telephone conversation with Ms. Boyer, Rene Mathews contacted her lawyer, who is also her sister. Her attorney drew up a Shareholders Agreement which reflected an effective date of January 28, 1998, and a Guarantee and Indemnification Agreement which reflected an effective date of March 6, 1998. The two documents were not in existence either at the time MCI submitted its application to the District or at the time the District initially denied MCI's application for certification. The minutes of the meeting to incorporate MCI on January 28, 1998, neither reflect nor reference the Shareholders Agreement or the Guarantee and Indemnification Agreement. The Shareholders Agreement stated: Rene and David desire to set forth in a written agreement the understanding and agreement they made at the time of incorporation of the Corporation as to the authority of Rene to exercise all corporate powers and direct the management of the business and affairs of the Corporations.... The agreement further provided: Rene, as one of the Directors of the Corporation, shall have the sole authority to exercise all corporate powers and direct the management of the business, policy and affairs of the Corporation. This authority includes, without limitation, the control of the day-to-day operations of the Corporation. Any authority given to David as one of the Directors of the Corporation to exercise corporate powers and direct the management of the business and affairs of the Corporation, including without limitation, his voting power as a Director of the Corporation, has been transferred to Rene. It is the intention of Rene and David that the Corporation be for all intents and purposes a Minority/Woman Business Enterprise, notwithstanding any authority, rights, or powers that may be given to David by virtue of the provisions of the ByLaws of the Corporation or the provisions of the Florida Business Organization Act F.S. Chapter 607. It is understood and agreed that because this Agreement limits the discretion and powers of David as a Director, David is relieved of all liability for acts or omissions imposed by law on directors and all such liability is imposed on Rene. This Agreement shall not restrict the ability of David to sign documents on behalf of the Corporation under the authority and direction of Rene, as she may so determine from time to time. . . . The Guaranty and Indemnification Agreement stated that the agreement was "entered into as of this 6th day of March, 1998, by and between" Rene and David Mathews. The agreement dealt with their liability for the Loan from Barnett Bank and provided: Rene and David agree that Rene shall be solely liable under the Guaranties for repayment for the Loan in the event of a default. To the extent that any action is taken by Barnett Bank against David under the Guaranties, Rene shall indemnify David in any threatened, pending, or completed action, suit, or proceeding against any expenses (including attorney's fees), judgments and amounts paid in settlement, actually or reasonably incurred by him in connection with such action, suit, or proceeding, including any appeal thereof. . . . On June 19, 1998, Ms. Mathews submitted the Shareholder's Agreement and the Guaranty and Indemnification Agreement to the District. On July 31, 1998, Ms. Mathews and MCI's counsel met with representatives from the District to discuss the initial denial of MCI's application. By letter dated August 4, 1998, the District advised MCI that the information submitted after the application did not support a reversal of the District's decision to deny the application. Although the District reviewed the additional information, the District deemed the Shareholders Agreement and the Guaranty and Indemnification Agreement to be new documentation rather than clarifying information originally submitted in the application. The changes which the documents reflect occurred after the application was submitted and the notice of intent to deny certification was issued. Carolyn Williams, the Director of the Office of Supplier Diversity and Outreach at the District, explained the rationale for not allowing changes after a denial has been issued and why firms which have been denied remain ineligible to reapply for certification for one year after denial pursuant to Rule 40E-7.655, Florida Administrative Code. According to Ms. Williams, to allow MCI to change its application and essentially restructure the firm would be inconsistent with the District's past practices and would violate the integrity of the program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Mathews Consulting, Inc.'s application for certification as a M/WBE. DONE AND ENTERED this 25th day of February, 1999, 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 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1999.
The Issue The issue for consideration in this case is whether the Department should impose administrative penalties in the form of fines, costs and points assessment because of the matters alleged in the Administrative Complaint and Order entered herein.
Findings Of Fact At All times pertinent to the issued herein, the Petitioner, SWFWMD, was the governmental agency responsible for the licensing of well contractors and the permitting of well drilling and abandonment within its jurisdictional area. Respondent, Edward Tanner, was a licensed water well contractor, holding license Number 2276 issued on July 21, 1982. On January 16, 1996, SWFWMD issued Well Construction permit 575267.01 to Respondent for the abandonment of a four-inch diameter water well on property owned by Mr. McCrimmon located at Five Tera Lane in Winter Haven. The well, a domestic water well, had failed and Respondent applied for a permit to construct a new well at the site and abandon the failed well. Stipulation Number Four of the permit issued to the Respondent provided that the well must be examined for debris or obstructions from the land surface to the original depth of construction, and further required that any debris or obstruction discovered be removed from the well prior to the commencement of abandonment. In addition, the stipulation called for the well to be plugged from bottom to top by an approved method of grouting. According to the permit, if any other method of abandonment was to be used, it must be approved in advance by specifically denoted District personnel. Though Respondent did not utilize the approved method of abandonment in this project, he did not apply for a variance from the District. Had he done so, he would have been required to show some emergency or hardship which would have prevented him from properly filling the abandoned well with cement from top to bottom and justified an alternative method of abandonment. In this case, Respondent plugged the well in issue, which was 210 feet in depth, from the land surface down to fifty five feet, utilizing six bags of portland cement. Deviation from the 210 foot plug required a variance to be granted by the District. Respondent did not seek this variance. Well abandonment is a regulated practice because, inter alia, improper abandonment may result in contamination of the aquifer. The well in question here is located in an area susceptible to contamination by ethylene dibromide, (EDB), recognized as a human carcinogen, which is known to be present in the area. In addition to failing to properly abandon the well, Respondent also failed to file a well completion report within thirty days of completion of his abandonment effort. The required report was submitted on June 10, 1996, nearly four months after it was due. Respondent relates that in January 1996, after he had worked on a well “commonly known” to be the subject of litigation, he was asked to try to fix the well in issue. When he saw the problem, he contends he repeatedly advised the authorities that the well was leaking sand and could not be cleaned out to the bottom as the District required. Therefore, to preserve the integrity of the well, he plugged it at a point below the break in the well lining. At that time, he told Mr. McCrimmon what the situation was and advised him the well needed to be abandoned, but he, Tanner, did not do that type of work. Respondent contends, supported by his son, that on January 16, 1996, while he was at Mr. McCrimmon’s property, he was told by Mr. Wheelus and Mr. Lee, both District officials, that Mr. Calandra, also a District official had said he, Tanner, had to pull a well abandonment permit or Calandra would not sign off on the new well. At that point, Respondent claims, he went to the District’s Bartow office to argue with Mr. Calandra, and asked Mr. Calandra to show him the law which supported Calandra’s position. Calandra persisted in his position and even, according to Respondent, bet with another District employees that Respondent had to do what he was told. This other employee does not recall any such bet. Therefore, under protest and only so he could get paid for the work he had done on the new well, Respondent agreed to pull the abandonment permit. At that time, he claims, he asked the District personnel in charge how many bags of concrete would be required to abandon the well and was told, “six”. When the time came to do the actual work, Respondent called for the required observer to be present from the District office, but because no one was available at the time, he was granted permission to do it without observation. He did the job as he felt it had to be done, and thirty days to the day after that, was served with the notice of violation. Respondent contends either that the witnesses for the District are lying in their denials of the coercive statements he alleges, or the situation is a conspiracy to deprive him of his civil rights. He does not believe a well contractor should be required to stay current regarding all the District rules regarding well construction and abandonment because the rules change so often. Respondent admits, however, that the rules in existence at the time in question required the filling of a well all the way down and that he did not do that nor did he seek a variance., He knew he was required to comply with the conditions of a permit. He also admits that a completion report was due within thirty days of work completion. In that regard, however, he contends that when the issue went into litigation, he felt the district would advise him of what he had to do. In this he was mistaken, but he was not misled into believing so by anything done or said by District personnel. Taken together, the evidence does not demonstrate that anyone from the District staff coerced Respondent into abandoning the well. He was issued a permit to drill the new well for Mr. McCrimmon with no conditions thereon. By the same token, the abandonment permit he obtained did require the complete clearing and total plugging of the abandoned well, and this was not done. The costs incurred by the District in the investigation and enforcement of this alleged violation totaled in excess of $500.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order finding Respondent, Edward Tanner, guilty of improperly abandoning the well in issue and failing to file the required report in a timely manner, and assessing enforcement costs in the amount of $500.00 in addition to an administrative fine of $250.00. DONE and ENTERED this 29th day of January, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1997. COPIES FURNISHED: Margaret M. Lytle, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Edward Tanner 1137 Saint Anne Shrine Road Lake Wales, Florida 33853 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact Respondent GL Homes filed a permit application with Respondent District for Conceptual Approval of a surface water management system. On August 28, 1996, Respondent District mailed a copy of its staff report and notice of rights to Respondent GL Homes. The staff report was the staff's summary and recommendation and Respondent District's notice of proposed agency action. The staff report indicated, among other things, that it was a "draft" and that the last date for action by the Governing Board of Respondent District was September 12, 1996. On or about August 29, 1996, Respondent District mailed a copy of the same staff report and notice of rights to interested third parties, including Petitioners. The notice of rights provided, among other things: PETITION FOR FORMAL ADMINISTRATIVE PROCEEDINGS Any person whose substantial interests are or may be affected by the action which is proposed in the enclosed Notice of Proposed Agency Action/Staff Review Summary, may petition for an administrative hearing ... Petitions for administrative hearing on the above application must be filed within four- teen (14) days of actual receipt of this Notice of Proposed Agency Action. Failure to file a petition within this time period shall constitute a waiver of any rights such person may have to request an administrative determination (hearing) under section 120.57, Florida Statutes, concerning the subject permit application. Petitions which are not filed in accordance with the above provisions are subject to dismissal. There is no dispute that this provision is clear and unambiguous. Petitioners did not receive the mailed staff report and notice of rights. Before the filing of Respondent GL Homes' permit application, Petitioners had been involved with other permit applications which had come before Respondent District and had filed petitions for administrative hearings on other applications. Petitioners were well familiar with Respondent District's process, involving permit applications, its staff reports and the notice of rights. Sometime during the first week of September 1996, while at the Respondent District's office, Petitioner Durando obtained a copy of the staff report and notice of rights. Petitioner Durando appeared at the September 12, 1966, Governing Board meeting even though the permit application had not appeared on any agenda for the Governing Board that she had received. The permit application was to be heard as part of a list of "Add On Items", which did not provide prior notice of these items to the public. At the meeting of September 12, 1996, Petitioner Durando obtained again a copy of the staff report. However, the staff report contained a cover memo, dated September 9, 1996, to the Governing Board from the Director of Respondent District's Regulation Department, with four maps included. The cover memo was written in layman's terms and was a summary of the staff report. The cover memo contained no modification of the staff report. Moreover, the staff report attached to the cover memo contained no modifications. Cover memoranda are routinely prepared for the members of the Governing Board for items on which public comment is expected. Public comment was expected on Respondent GL Homes' permit application. A problem with notice to the public, regarding the Governing Board considering Respondent GL Homes' permit application at the September 12, 1996, was brought to the attention of the Governing Board. On the recommendation of Respondent District's staff, the Governing Board decided not to address the permit application at that meeting but to re-notice the public hearing on the permit application for October 10, 1996. Petitioner Durando was concerned as to whether Respondent District had to re-publish the staff report and notice of rights. She made an inquiry to a member of Respondent District's staff regarding this issue, who was unsure if a re-publication had to occur and informed Petitioner Durando of his uncertainty. Later in the evening of the same day of Petitioner Durando's inquiry, that same member of Respondent District's staff left a message on Petitioner Durando's answering machine that no re-publication of the staff report and notice of rights was required since there was no modification or change of the staff report. Also, prior to departing the September 12, 1996, Governing Board meeting, Petitioner Durando inquired of Respondent District's counsel as to when was the due date for filing a petition for an administrative hearing on Respondent GL Homes' permit application. Respondent District's counsel informed her that she must file her petition within 14 days of receiving a copy of the staff report and notice of rights. Petitioner Durando had attended other Governing Board meetings in the past which contained permit applications as agendaed items and as add on items. No evidence was presented to show that the prior permit applications considered by the Governing Board at its meetings did not contain a cover memo from Respondent District's staff, which summarized in layman's terms the staff report. Petitioner Durando believed that she had 14 days from September 12, 1996, in which to file a petition with Respondent District for an administrative hearing on Respondent GL Homes' permit application. She filed a petition on behalf of the Petitioners on September 26, 1996. Neither prior to nor subsequent to the September 12, 1996, Governing Board meeting was a modification made to the staff report or a second staff report prepared. Petitioners' actual receipt of the proposed agency action was sometime during the first week of September 1996. If Petitioners' actual receipt was on September 2, 1996, their petition for an administrative hearing must have been filed on or before September 16, 1996. If Petitioners' actual receipt was on September 6, 1996, their petition must have been filed on or before September 20, 1996. At all times material hereto, Petitioner Durando was not an attorney. Subsequent to filing the petition for an administrative hearing, Petitioners obtained the services of an attorney.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the petition for an administrative hearing as untimely. DONE AND ENTERED in this 13th day of November 1996 in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 13th day of November, 1996.
The Issue Did Respondent, William D. Going, willfully and intentionally violate Florida Statutes and Southwest Florida Water Management District (District) rules regulating well construction? If he did, what corrective action is appropriate?
Findings Of Fact William Going is a licensed water well contractor. He has held License Number 1564 since 2007. Mr. Going is a managing member of Going Irrigation, Inc., and conducts business under that name. Mr. Going constructed four sand point irrigation wells at a residential property in St. Petersburg, Florida. He did not have and had not applied for a Well Construction Permit (WCP). 1 All citations to Florida Statutes are to the 2020 codification unless noted otherwise. 2 The findings are based upon the evidence admitted at the hearing and the stipulations of the parties. Mr. Going did not call or otherwise contact the District to request a WCP. The District operates an online permitting system called the Water Management Information System (WMIS). The District will issue a WCP based upon a telephone call, an application on its website, a faxed application, a mailed application, or a hand-delivered application. The District routinely issues permits within two hours of receiving an application, often within ten minutes to half an hour. The District's application system operates from 7:00 a.m. to 10:00 p.m. It is infrequently offline for a few hours. While quick, the process reviews significant information. It verifies that the well location is sufficiently distant from septic systems, verifies construction methods and materials, and verifies, if the well is for drinking water, that the well is not too close to a contamination site. Mr. Going is a registered and experienced user of WMIS. The District learned of the unpermitted wells on April 28, 2020, when it received an anonymous complaint. On May 5, 2020, approximately ten days after he constructed the wells, Mr. Going submitted WCP Application 889173 for construction of the four already completed sand point irrigation wells. He did not disclose that they were already completed. He falsely represented them as proposed. The District approved the application on May 6, 2020, and issued WCP 889173 to Mr. Going. On June 11, 2020, Mr. Going submitted four Well Completion Reports for the wells, falsely representing that each was completed on May 7, 2020. This was more than 30 days after Mr. Going completed the wells. Mr. Going claimed at the hearing that he tried to apply for a WCP for four or five days before constructing the wells but was locked out of the WMIS. Mr. Going said that his son usually obtained permits online for the company. He also claimed that he tried to apply online on April 24 and 25, 2019. His claims are not persuasive. There is no question that Mr. Going knew the requirements for obtaining a permit and reporting completion. In 2009, in Order No. SWF 09- 017, the District imposed a $500.00 fine and assessed five points against his license for an almost identical offense. In that case, Mr. Going also constructed a well without a permit from the District or applying for a permit. In that case, like this one, he sought to excuse failure to apply for a permit by claiming difficulties with the website. In that case he blamed his wife's unfamiliarity with computers, rather than his own, for failure to apply. In that case, like this one, he applied for and obtained a permit after constructing the well. Mr. Going knowingly and willfully constructed four unpermitted wells, filed a WCP application more than thirty days after he completed the wells, and misrepresented the dates of completion in the WCP completion reports that he filed with the District. Mr. Going tries to characterize his after-the-fact misrepresentations as mitigation. But they were not. Mitigation would have been contacting the District to advise it of the wells' unpermitted construction and the asserted justification for it. Furthermore, his misrepresentations deprived the District of the chance to prevent construction of the wells using improper materials or near a septic tank or contaminated location.
The Issue The issue is whether Petitioner's application for certification as a minority business enterprise should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this licensing dispute, Respondent, South Florida Water Management District (District), has proposed to deny an application of Petitioner, Everglades Surveying Joint Venture (Everglades), for certification as a minority business enterprise (MBE) under the District's Supplier Diversity & Outreach Program (Program). If the application is approved, Petitioner would be listed on the District's contract solicitation and vendor lists as a minority contractor. In its proposed agency action, as later amended, the District contends that the application should be denied because: the minority owner fails to meet the criteria in Rule 40E-7.653(5) and (6), Florida Administrative Code; the documents provided by Petitioner "do not support that the day- to-day operations are controlled by the minority applicant, nor is there evidence that the minority applicant possesses the authority to direct the management and policy of the business"; the minority business does not meet the size standard of a small business as required by Section 288.703, Florida Statutes; and the minority owner does not possess the necessary license to qualify the firm in its area of specialty as required by Rule 40E-7.653(5), Florida Administrative Code. In simpler terms, the District has contended that Petitioner's application is deficient in the areas of "management and control, the size standards[,] and the licensure." Petitioner disputes these allegations and contends that it meets all criteria for certification. As to the remaining requirements for certification in Rule 40E-7.653(4), (7), (8), and (9), Florida Administrative Code, the parties have stipulated that all of these criteria have been satisfied. The Minority Owner's Corporate Structure Ray J. Berryman, an Asian-Pacific American, is the minority owner seeking certification. Mr. Berryman is a professional engineer who has been in the engineering and surveying business for almost forty years. After working with other engineering firms for over a decade, in 1975 he started his own firm in California. At that time, the firm was known as Berryman & Stevenson, but its name was later changed to BSI Consultants, and then to Berryman & Henigar, Inc. The firm provides civil engineering and surveying services to public agencies on the West Coast. In 1994, Mr. Berryman acquired a Florida corporation known as Henigar & Ray, Inc., which was engaged in the business of providing surveying and civil engineering services. Although the company initially operated under the name of Henigar & Ray, Inc., doing business as Berryman & Henigar, in 1998 Mr. Berryman changed its name to Berryman & Henigar, Inc. (BHI), the same name as the California corporation. Mr. Berryman serves as director, chief executive officer, and operating manager of BHI. The firm's headquarters are in Orlando, and it has branch offices in Jacksonville, Tallahassee, Tampa, Ocala, and West Palm Beach. In March 1994, Mr. Berryman formed a Nevada holding company known as Berryman & Henigar Enterprises (BHE), in which he owns 77.5 percent of the stock and serves as chairman of the board and chief executive officer. BHE owns all of the stock in Berryman & Henigar, Inc. (the California corporation); Berryman & Henigar, Inc. (the Florida corporation); Employment Systems, Inc., a "staff easing company" incorporated in California in 1992; BHE Technical Staffing, a Nevada corporation; and Therapy Network, a Nevada corporation. However, BHE Technical Staffing and Therapy Network are no longer in business. Consolidated financial statements are issued for all of the companies. BHE was formed for the purpose of serving as a vehicle "to allow a relationship to exist" between the Florida and California corporations. After BHE was formed, Mr. Berryman changed the name of both the Florida and California firms (Henigar & Ray, Inc., and BSI Consultants, respectively) to Berryman & Henigar, Inc., one a Florida corporation, the other a California corporation, so that he could have "the strength, if you will, of both companies with a similar name." Except for a few administrative personnel, BHE has no other employees and it performs no professional services. Besides being the owner of BHE and the wholly-owned subsidiaries named above, Mr. Berryman also is a majority owner of at least one affiliated company known as GovPartner, a California firm providing "e-Government solutions for cities, courts, and governmental agencies." Whether Mr. Berryman controls other affiliated companies was not disclosed at hearing. Other MBE Certifications In June 1996, or before the District had a rule on MBE certifications, Henigar & Ray, Inc., doing business as Berryman & Henigar, applied with the District for certification as a MBE to provide civil engineering, surveying, environmental sciences, and construction management services. The application was approved, and a one-year certification was issued. The District then changed from a one-year to a three-year certification, and after an application for recertification was filed in 1997, Henigar & Ray, Inc., was reissued a certification that expired in 2000. By then, the District had adopted a rule which required, among other things, that the minority owner have a professional license in all fields in which the certification was granted. Through what the District calls an "error" or oversight, it failed to note that Mr. Berryman did not hold a professional surveyor's license, and it erroneously continued to certify BHI in the area of surveying. On August 26, 1999, the firm was given "graduated" status, which meant that it was no longer eligible for continued participation in the District's Program as a prime contractor due to the business having a net worth of more than $3 million and/or an average net income of $2 million after federal taxes for the preceding two years. However, the firm could still be counted (as a subcontractor) towards a prime contractor's goal attainment. In November 2000, the firm, then known as BHI, again applied for recertification as a registered vendor. The application was approved on March 1, 2001, for another three-year period, this time in the areas of surveying, civil engineering, and construction management. Whether BHI is still in the graduated status is not known. Besides holding MBE status with the District, BHI has been certified as a MBE with several local governments in Florida, including the City of Tampa, City of Orlando, Tampa Port Authority, and Orange County. Copies of BHI's applications filed with those governmental entities have been made a part of this record. The Joint Venture As an Asian-Pacific American, Mr. Berryman qualifies for minority status. Although not disclosed by the parties, but presumably because BHI has graduated status, and cannot serve as a prime contractor, or because its certification as a MBE in surveying may be taken away, Mr. Berryman desires to become a District MBE through another legal entity and provide surveying services as a prime contractor on the Comprehensive Everglades Restoration Project (CERP) now being undertaken by the District. Before filing his application, Mr. Berryman considered three options: filing as a corporation, a partnership, or a joint venture. He chose a joint venture since it gives the entity "the ability to have control outside of a corporate board." According to Mr. Berryman, even though the joint venture is theoretically controlled by a control board, under the make-up of the venture established here, that board can only represent "what Berryman & Henigar, Inc. commands and requires it to represent." Mr. Berryman also desired to have other members in the joint venture who would "provide a unique geographical location for projects being performed by [CERP]," and thus enhance its "probability of obtaining work through the District as a minority." To this end, Everglades was formed as a joint venture pursuant to a Joint Venture Agreement (Agreement) executed on October 12, 2001. So that Everglades would have a "formidable surveying company that would be able to win work," its members included BHI; GCY, Inc. (GCY), a Florida corporation providing surveying services; Jeffrey C. Cooner and Associates, Inc. (Cooner), a Florida corporation providing surveying services; and Southern Mapping Technology, Inc. (Southern Mapping), a Florida surveying corporation. According to the Agreement, the ownership of the joint venture is as follows: BHI - 51 percent GCY - 16.33 percent Cooner - 16.33 percent Southern Mapping - 16.33 percent Mr. Berryman opted for BHI to have 51 percent ownership in the joint venture so that he would control the entity. At the same time, however, he desired to give the other participants as much ownership as possible without giving up control. The Agreement establishes a Board of Control (Board) which has the responsibility and authority for the conduct and management of Everglades to approve and execute contracts, formulate and determine the policies of Everglades, approve consultants and subcontractor agreements, approve budgets and schedules, determine the allocation of work among members of Everglades, and decide all other matters necessary to its operations. After the joint venture's formation, five individuals were appointed to the Board: Mark A. Stokes and Steve Sharpe, both BHI employees appointed by Mr. Berryman; George C. Young, Jr., of GCY; Jeffrey C. Cooner of Cooner; and James S. Richmond of Southern Mapping. All members of the Board are non-minorities. In response to the District's proposed denial of the application, in May or June 2002, or six or seven months after it was filed, Mr. Berryman assumed a seat on the Board, replacing Mr. Sharpe.1 However, because of a District policy that no amendments to an application will be considered after the application is filed, the District has not taken into account this change in the Board's membership. Petitioner has not challenged the use of that policy. Paragraph 4.3 of the Agreement provides that the Board "shall reach decisions by simple majority vote of total votes cast. BHI shall cast 51 votes; GCY shall cast 16 votes; Cooner shall cast 16 votes; and Southern Mapping shall cast 16 votes." Thus, BHI has ultimate control over all of Everglades' decisions. At the same time, however, there is nothing in the Agreement which says that the Board must consult with Mr. Berryman, and obtain his approval, before a decision is taken. Rule 40E-7.653(5) Criteria Paragraph (5) of the rule requires, among other things, that the applicant establish that the minority owner "possess[es] the authority to control and exercise dominant control over the management and daily operations of the business." The District contends that Mr. Berryman does not exercise such control since he does not sit on the Board, Mr. Stokes and Mr. Sharpe, both non-minorities, are the individuals who actually cast votes on behalf of BHI, and nothing in the Agreement requires Mr. Stokes and Mr. Sharpe to consult with Mr. Berryman before they make a decision. In reality, Mr. Berryman has absolute control over all of the decisions made by Mr. Stokes, who occupies one of the two BHI seats on the Board. This was confirmed by Mr. Stokes at the hearing and was not contradicted. Even if Mr. Sharpe (who has been replaced by Mr. Berryman) were still on the Board, he would be subject to the same constraints. This is because Mr. Berryman has made it clear that he would quickly replace any BHI Board member who did not vote in accordance with his wishes. Since BHI (and Mr. Berryman) effectively controls the joint venture through 51 percent of the Board's voting power, it is found that the minority owner exercises dominant control over the management and daily operations of the joint venture, as contemplated by the rule. Rule 40E-7.653(6) Criteria Subparagraphs (6)(c) and (d) of the rule require that the applicant establish that "the net worth of the business concern, together with its affiliates, does not exceed five (5) million [dollars]," and that it "employs two- hundred (200) or fewer permanent, full-time employees," respectively. In determining the net worth, the same rule provides that the District shall "consider the most recent federal tax returns or annual financial statements for the business." After concerns were raised by the District over BHI's net worth and number of permanent employees, BHI filed a letter with the District on April 2, 2002, indicating that it had 118 full-time employees and a negative net worth of $1,460,176.00. On June 6, 2002, its counsel also filed an affidavit by BHE's Controller, together with consolidated financial reports for the year ending March 29, 2002, reflecting a negative net worth of $1,293,435 for BHE and all of its subsidiaries, including BHI. Counsel also provided an affidavit by the BHE Benefits Coordinator listing 96 full-time BHI employees as of May 17, 2002. In separate documents submitted earlier by the other joint venture participants, the net worth and number of permanent, full-time employees of each of those participants were as follows: GCY - $553,000.00 and 25 employees as of November 30, 2001; Cooner - $300,000.00 and 8 employees as of December 31, 2001; and Southern Mapping - $527,000.00 and 6 employees as of December 31, 2001. While the fiscal years of the participants are not identical, collectively these figures produce a total positive net worth of all Everglades members (including BHE, the parent of BHI) of $86,565.00 and less than 200 full-time employees at or about the date the application was filed. Despite this showing by Everglades that it met the net worth and size thresholds for a MBE, over the past two years BHI has made a number of filings with the District and other governmental entities which caused the District to doubt the veracity of the numbers submitted by Everglades and to ultimately deny the application. For example, in its application for recertification filed with the District in November 2000, BHI reflected that it then had a positive net worth of $1,013,790.00 and 305 full-time employees. In a Statement of Intent to Perform as a MBE Subcontractor dated October 23, 2001, BHI indicated that its net worth was $1,012,979.00 and that it employed 102 permanent employees. Almost identical numbers were shown in other filings made with the District on November 1, 2001, April 18, 2002, May 24, 2002, and May 31, 2002. However, in a Statement of Intent to Perform as a MBE Subcontractor executed by a BHI corporate officer (Mr. Stokes) on June 18, 2002, and filed with the District, the net worth of BHI was shown as $4,106,000.00 and the number of permanent, full-time employees was given as 350. Assuming these latter figures are accurate, Everglades would have a total net worth exceeding $5 million and more than 200 full-time, permanent employees, both of which exceed the thresholds permitted by the rule. In addition, on April 3, 2000, BHI filed certification documents with Orange County reflecting that it had 305 full-time employees and a positive net worth of $123,415.00. Identical figures were reflected in a filing made with the City of Tampa on April 3, 2002. In contrast, in a MBE certification filing made with the City of Orlando on May 20, 2002, which included net worth and number of employees for the latest three-year period, BHI represented that it had 97 employees in the years 2000, 2001, and 2002, and that its net worth for those years was a negative $898,676.00, a negative $1,376,645.00, and a negative $1,586,216.00, respectively. To add to the confusion, in an undated document filed with the City of Tampa, BHI indicated that it had 345 full-time employees and 35 part-time employees. However, in a June 12, 2002, filing with the Tampa Port Authority, BHI indicated that it had 116 full-time employees and a negative net worth of $1,586,216.00. Mr. Berryman conceded that the different filings were "embarrassing" and confusing, and he attributed them to mistakes by careless or untrained in-house personnel. As to the document reflecting a net worth of BHI in excess of $4 million, it was established that a secretary erroneously filled out the document and Mr. Stokes hurriedly signed it without verifying the numbers. Mr. Berryman also maintained that the numbers submitted by BHI to the District in the April 2, 2002, letter, as supported by the financial reports and affidavits filed on June 6, 2002, are the most accurate reflection of its net worth and number of employees. This assertion is accepted since all of the filings over the years (except the one on June 18, 2002) have consistently indicated that the net worth of BHI is far less than the $5 million threshold. Moreover, the more credible evidence supports a finding that the number of permanent, full-time employees of BHI and the other joint venture participants is less than 200. Based on these considerations, it is found that Everglades meets the net worth and employee thresholds prescribed by the rule. Professional Licensure Requirement Rule 40E-7.653(5), Florida Administrative Code, requires that the minority owner (Mr. Berryman) seeking certification "be the license holder, or the professional license holder" in the specialty for which certification is sought. Here, Everglades seeks to provide surveying services. The application filed with the District identified five BHI individuals who had professional surveying licenses which authorized the work, all non-minorities. Mr. Berryman was not identified as being one of them. The rule itself is clear and unambiguous and requires no interpretation. Since its adoption in late 1996, the District has consistently construed it to mean just what it says -- that in order for a minority owner to be certified, the owner must have a professional license in the area being certified. This interpretation of the rule was not shown to be unreasonable or clearly erroneous. Therefore, because Everglades intends to provide surveying services, Mr. Berryman, as the minority owner, must hold a surveyor's license under Chapter 472, Florida Statutes, in order to qualify as a MBE. While it is true that Mr. Berryman is a registered professional engineer (under Chapter 471, Florida Statutes) in the State of Florida (as well as 3 other states), and he can perform almost all of the surveying services under his engineering license,2 he does not hold a Florida surveyor's license, as required by the rule. While this result may seem unfair and based on highly technical grounds, it is consistent with the plain requirements of the rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order denying the application of Everglades Surveying Joint Venture for certification as a minority business enterprise. DONE AND ENTERED this 4th day of September, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 2002.
The Issue The preliminary issue in this case is whether the South Florida Water Management District (District) has jurisdiction over the Petition for Formal Administrative Hearing (Petition) filed by the Save the Manatee Club (Club)--i.e., whether the Petition was timely or, if not, if the District has jurisdiction under principles of equitable tolling or excusable neglect.
Findings Of Fact On October 11, 1999, Hidden Harbor filed with the District an application for an Environmental Resource Permit (ERP) to construct and operate a surface water management system serving a proposed residential development in Lee County, Florida. In January 2001, the Club sent an email to the Florida Wildlife Conservation Commission (FWCC) stating that it was concerned about Hidden Harbor's Application No. 991011- 13, as it might impact an area the Club would like to see as a manatee sanctuary, and was requesting copies of all FWCC documents relating to the permit. FWCC forwarded a copy of this email to the District on January 19, 2001. At the time, the Club's internet website gave the address of its main office in Maitland, Florida, as the Club's official mailing address. On April 9, 2001, the Club opened a Southwest Florida regional satellite office in Estero, Florida, and installed Laura Combs as Regional Coordinator in charge of that office. Responsibility for monitoring the Hidden Harbor application was delegated to Combs and the satellite office. Nonetheless, the Club's website continued to give the address of its main office in Maitland, Florida, as the Club's official mailing address. Combs's prior work experience with the Club was as assistant director of governmental relations in Tallahassee, Florida. In that position, she tracked legislation and actions of the Governor and Cabinet that were of interest to the Club. She had no role in the filing of petitions for administrative hearings on actions of governmental agencies. Combs's education included a bachelor's degree in English and a master's degree in urban and regional planning. She did not have specific legal education in the filing of petitions for administrative hearings on actions of state governmental agencies. On May 30, 2001, the District mailed to the Club at its Maitland office address a letter enclosing the "District's staff report covering the [Hidden Harbor] permit application [No. 991011-13]" and notifying the Club that the "recommendations as stated in the staff report [to grant the attached draft permit] will be presented to our Governing Board for consideration on June 14, 2001." The Club also was advised: Should you wish to object to the staff recommendation or file a petition, please provide written objections, petitions and/or waivers (refer to the attached "Notice of Rights") to [the District's deputy clerk]. The "Notice of Rights" addresses the procedures to be followed if you desire a public hearing or other review of the proposed agency action. You are advised, however, to be prepared to defend your position regarding the permit application when it is considered by the Governing Board for final agency action, even if you agree with the staff recommendation, as the Governing Board may take final agency action which differs materially from the proposed agency action. The Notice of Rights stated that it was intended to conform to the requirement of Section 120.569(1), Florida Statutes, to "inform the recipient of any administrative hearing or judicial review that is available under this section [120.569(1)], s. 120.57 or s. 120.68." It cautioned: Please note that this Notice of Rights is not intended to provide legal advice. Not all the legal proceedings detailed below may be an applicable or appropriate remedy. You may wish to consult an attorney regarding your legal rights. The Notice of Rights included a section entitled "Petition for Administrative Proceedings," which stated in pertinent part: A person whose substantial interests are affected by the South Florida Water Management District's (SFWMD) action has the right to request an administrative hearing on that action. The affected person may request either a formal or an informal hearing, as set forth below. A point of entry into administrative proceedings is governed by Rules 28-106.111 and 40E-1.511, Fla. Admin. Code, (also published as an exception to the Uniform Rules of Procedure as Rule 40E-0.109), as set forth below . . .. Formal Administrative Hearing: If a genuine issue(s) of material fact is in dispute, the affected person seeking a formal hearing on a SFWMD decision which does or may determine their substantial interests shall file a petition for hearing pursuant to Sections 120.569 and 120.57(1), Fla. Stat. or for mediation pursuant to Section 120.573, Fla. Stat. within 21 days . . . of either written notice through mail or posting or publication of notice that the SFWMD has or intends to take final agency action. Pertinent to this case, the Notice of Rights included a verbatim reproduction of Florida Administrative Code Rule 28- 106.201, addressing required contents of a petition to initiate proceedings involving disputed issues of material fact. Rules 28-106.111, 40E-1.5111, and 40E-0.109 were not reproduced in the Notice of Rights. It is not clear from the evidence when the letter dated May 30, 2001, with attachments (the Notice Correspondence), was received in the Club's Maitland office. It was not date-stamped, as time-sensitive correspondence normally would be. Apparently, it was decided to forward the Notice Correspondence to the new satellite office in Estero for handling. Combs received the forwarded Notice Correspondence in early June 2001. This was the "first time [Combs] had been through this type of process." Combs reviewed the Notice Correspondence, eventually focusing on paragraph 1.a. of the "Petition for Administrative Proceedings" section of the Notice of Rights. She did not read any of the cited statutes and rules except for the rules reproduced verbatim as part of the Notice of Rights. Combs made conflicting statements regarding her understanding of the District's administrative process. However, it appears that she understood that the Club could file a petition within 21 days of receipt of the Notice Correspondence, or within 21 days of the "final" action of the District's Governing Board. She testified that, because the Notice Correspondence did not bear a date-stamp, it was unclear when the first 21-day time period began or ended; as a result, she decided to wait until the District's Governing Board took "final" action and file a petition within the second 21-day time period. Combs appeared at the meeting of the District's Governing Board on June 14, 2001, and spoke in opposition to issuance of the draft permit. Notwithstanding the Club's opposition, the Governing Board decided to issue the draft permit. Combs does not have authority to file petitions for administrative hearings on District actions. She consulted with her supervisor, Patricia Thompson, and they made a recommendation to the Club's governing board, which has ultimate authority to file petitions. Prior to Combs's involvement in the Hidden Harbor application, the Club had staff legal counsel, who could be consulted with respect to the filing of petitions and would advise the Club's governing board. However, the Club did not have staff legal counsel at the time of Combs's involvement and through the time of filing of this petition. (The Club now again has staff legal counsel.) Neither Combs nor Thompson saw any need to consult an attorney. It is not clear when the recommendation of Combs and Thompson was presented to the Club's governing board or when the Club's governing board made its decision to file the Petition. Neither Thompson nor any member of the Club's governing board (nor anyone else who may have participated in the decision to file the Petition) testified. Several (according to Combs, approximately 12) times after the District's Governing Board's meeting on June 14, 2001, Combs telephoned the District's offices to obtain a copy of the District's Governing Board's "final" action when it was reduced to writing. It is not clear from the evidence why several telephone calls were required. Eventually, on June 26, 2001, Combs received a copy of the permit issued to Hidden Harbor; there was no Notice of Rights attached. On July 17, 2001, the Club filed its Petition challenging the permit issued to Hidden Harbor. In the meantime, Hidden Harbor had obtained a final development order from Lee County in reliance on the Club's failure to petition for an administrative hearing. The Club is not a newcomer to Florida's administrative process. It can be officially recognized that the Club has participated in numerous proceedings before DOAH. At least one of those cases involved issues similar to those presented for determination in this case. See Conclusion of Law 32, infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the Petition. DONE AND ENTERED this 6th day of December, 2001, in Tallahassee, Leon County, Florida. _________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2001. COPIES FURNISHED: Cindy L. Bartin, Esquire Post Office Box 861118 St. Augustine, Florida 32086 Martha M. Collins, Esquire 233 3rd Street North, Suite 100 St. Petersburg, Florida 33701 Keith W. Rizzardi, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3089 Frank R. Finch, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680
