Findings Of Fact The Respondent, Sergio J. Alcorta (Alcorta), is licensed by the Department of Business and Professional Regulation (Department) as a professional engineer, license number PE 0014464. Alcorta is not licensed by the Department as a contractor. Alcorta has a company called mrf building systems, inc. Alcorta d/b/a mrf building systems, inc. is not listed in the records of the Contractors Section, Dade County Building and Zoning Department as a certified contractor doing or contracting for work in the building trades in Dade County. Hurricane Andrew, which hit the Miami area in August, 1992, damaged the home of Kenneth and Elizabeth Quinn. A friend of the Quinns referred them to Alcorta for assistance. By letter dated September 15, 1992, Alcorta outlined a discussion he had with the Quinns. The letter stated: Per our discussion, I will assist you in dealing with your insurance carrier and other construction workers to ensure that all hurricane damages are accounted for and the work is properly performed. I will prepare an initial damage evaluation report of all damages for the insurance adjuster and facilitate on your behalf the transfer of funds from your mortgage holder to you and to any pertinent party. My fees will be $150 for the initial evaluation and $500 at the end of construction work where you require my assistance. By letter dated September 16, 1992, Alcorta advised the Quinns of his findings concerning the damage to their residence. The engineer's report was prepared on the letterhead of Nu-Tech Engineering Services. Alcorta contacted a general contractor to see if the contractor could perform the work required to repair the Quinn's house. The contractor advised Alcorta that only a roofing permit would be required for the job and that because of the work he was already committed to do, he did not know when he could complete the repairs. Alcorta and Mr. Quinn signed a proposal on mrf building systems, inc. letterhead dated September 29, 1992. The proposal provided: We propose to furnish all materials, labor, tools, and equipment to repair the storm damaged dwelling at the above referenced location as follows: Roof recovering with shingles and ply- wood sheathing repairs $7,500. Structural repairs to concrete columns, stucco repairs as necessary $2,500 Enclosing terrace with new exterior walls and french doors $7,500 Retiling terrace room and pool area $2,000 Securing cabinets and other interior damage $1,000 Removal, installation of solar collector $500 New terrace central air conditioner $2,000 Exterior fencing $3,000 Total repair estimate $26,000 TERMS: One third down payment upon execution of the contract. Partial payments upon completion of work segments. Estimated time for completion of job: 21 days. On mrf building systems, inc.'s letterhead dated September 30, 1992, Alcorta provided Ms. Quinn with an estimate for interior painting, taking off the roof mounted solar collector and reinstalling it on the new roof, replacing roof insulation, structural epoxy repair, and replacing torn vent screens. Alcorta was paid approximately $14,650 by the Quinns on this project. Alcorta in turn paid for some of the materials and labor used on the project. The checks from the Quinns were made payable to Alcorta, not to mrf building systems, inc. By letter dated October 2, 1992, on mfr building systems, inc., letterhead, Alcorta forwarded a copy of the contract with the Quinns to the Quinn's mortgage company advising them that the Quinns had given him a down payment of $4,000 and listing the anticipated completion dates for the various tasks to be performed. Alcorta bought supplies and had laborers come to the site to perform work. There was no licensed contractor on the job. The only building permit pulled on the project was obtained by Elizabeth Quinn, the homeowner. The building permit did not carry the disclosure statement required by Section 489.103(7), Florida Statutes. Alcorta witnessed Ms. Quinn's signature on the application for building permit. Alcorta did not advise the Quinns that they were to act as contractors per Section 489.103(7), Florida Statutes. The Quinns did not supervise the construction on the project but relied on Alcorta to supervise the work. Alcorta was not an employee of the Quinns. The Quinns experienced problems with the roofing work performed pursuant to the contract with mrf building systems, inc. The roof leaked, requiring the Quinns to have the roof replaced at a cost of $10,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Sergio J. Alcorta violated Section 489.127(1)(f), Florida Statutes (1992 Supp.), and assessing an administrative penalty of $3,000. DONE AND ENTERED this 20th day of November, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1996. COPIES FURNISHED: Donna Bass, Senior Attorney Department of Business and Professional Regulation Division of Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Sergio J. Alcorta Nisky Center, Mail Box 401 Charlotte Amalie St. Thomas, Virgin Islands 00802 Lynda Goodgame, Genral Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this complaint, the Respondent, Joseph Marcelin, was a certified residential contractor, license number CR C028352. Respondent’s place of business and residence are in Dade County, Florida. The Petitioner is the state agency charged with the responsibility of regulating and disciplining licensed contractors. On May 14, 1988, the Construction Industry Licensing Board entered a final order approving a settlement stipulation regarding Case no. 74860 against this Respondent. This final order directed Respondent to adhere to and abide by all of the terms and conditions of the stipulation. The stipulation required the Respondent to not violate the provisions in Chapters 455 and 489, Florida Statutes, in the future; required Respondent to honor a settlement in a civil matter; required Respondent to pay a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and required Respondent to affirmatively demonstrate compliance with the stipulation in order to have his license reinstated. A second final order entered by the Board on May 14, 1988, approved a settlement stipulation regarding Case no. 77499. This final order also directed Respondent to comply with the stipulation applicable to that case. In Case no. 77499, the stipulation required Respondent to abide by a civil settlement; imposed a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and placed the burden on Respondent to demonstrate he had met the terms of the stipulation. As to both cases referenced above, Respondent admitted the allegations of the administrative complaints which, in pertinent part, claimed Respondent had assisted an unlicensed person or entity to perform contracting services thereby aiding and abetting an unlicensed person to evade the provisions of Chapter 489, Florida Statutes. On April 2, 1993, Respondent executed a certification change of status form which was submitted to the Department. Such form was completed for the purpose of qualifying as an individual for licensure and sought to reinstate a delinquent license or change from inactive to active. In the course of completing the change of status form Respondent was required to answer a series of questions by checking either the “yes” or “no” column. In response to the question as to whether Respondent had “been charged with or convicted of acting as a contractor without a license, or if licensed as a contractor in this state or any other state, had a disciplinary action (including probation, fine or reprimand) against such license by a state, county or municipality?,” he answered “no.” Such answer was false. Further such answer was made under with the following affirmation: I affirm that these statements are true and correct and I recognize that providing false information may result in a FINE, SUSPENSION, OR REVOCATION of my contractor’s license. [Emphasis in original.] Thereafter, the Department notified the Respondent that his license would not be issued as he had failed to demonstrate satisfaction of a civil judgment and had not submitted an explanation of the disciplinary action from 1988. Respondent eventually resolved issues of licensure with the Department and, on September 15, 1993, was authorized to practice contracting. Prior to his license being reinstated, Respondent performed the following: on April 7, 1993, Respondent obtained a building permit for construction work at the home of Eduardo Bovea. This permit, no. 93181501, indicated Respondent as the contractor of record for the project. On the permit application Respondent represented himself as the licensed building contractor for the Bovea project to the Metropolitan Dade County building and zoning department. Respondent did not have a contract with Bovea for the construction work to be performed on the Bovea home. In fact, the contract was between Bovea and Lou Greene Construction. The Boveas paid monies to Rodney Salnave, who claimed to be a representative for Lou Greene Construction. Rodney Salnave was not Respondent’s employee, and was not licensed as a contractor. The Respondent did not talk to the Boveas regarding the contract, the scope of the work to be done, or the contract price for the work. All discussions regarding the work at their home (and payments for same) were between Rodney Salnave and the Boveas. The permit for the Bovea project represented the amount of the work to be $2,000.00. In fact, the contract price for the work was $4,500.00. Respondent misrepresented the value of the work for the Bovea project. As of September 26, 1993, Respondent admitted he was involved with seventeen contracting jobs. Just eleven days after having his license reinstated, and while being employed in a full-time (8:00 a.m. to 5:00 p.m.) job with Dade County, Respondent had contracting responsibility for seventeen jobs. In reality, Respondent had made a deal with an unlicensed person, Denis Joseph, to pull permits for him. The jobs were for persons who, in some instances, Respondent had never met. For example, Mr. Joseph pulled a permit for work to be performed on a home owned by Ed Davis. The contract for the work was between Mr. Davis and a Mr. Sutton, an unlicensed contractor, but with the approval of Respondent, Mr. Joseph obtained a permit for the Davis job. A second job was for Bertha Joseph. In this instance, Mr. Joseph completed the permit application which Respondent signed thereby allowing Mr. Joseph to obtain the permit for the project. By signing the permit, Respondent represented himself to be the contractor for the job. In truth, the homeowner had contracted with Denis Joseph for the work to be done, but the project was completed by Emanuel Gideon, an unlicensed contractor. Respondent admitted receiving payments from Denis Joseph. Respondent admitted he was not actively involved with the Bertha Joseph project. In September, 1993, Eric Wardle, an investigator with the Dade County building and zoning department, interviewed Respondent regarding claims that he was obtaining permits for unlicensed contractors. According to Mr. Wardle, Respondent admitted he pulled permits for unlicensed contractors after Hurricane Andrew because they were trying to make a living. At hearing Respondent disputed the accuracy of Mr. Wardle’s investigation but admitted he would have told him “anything just for him to get away from me.” Respondent’s explanation at hearing was not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order revoking Respondent’s contractor license and imposing an administrative fine in the amount of $8,500.00. DONE AND ENTERED this 16th day of May, 1997, in Tallahassee, Florida. J. D. PARRISH 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 COPIES FURNISHED: Bruce M. Pasternack, Esquire Raymond L. Robinson, P.A. 1501 Venera Avenue, Suite 300 Coral Gables, Florida 33146 Joseph Marcelin 16561 Southwest 144th Court Miami, Florida 33177 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1997. Rodney Hurst, Executive Director Department of Business and Professional Regulation/CILB 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
Findings Of Fact At all times material hereto, the Respondent was licensed as a certified building contractor, having been issued license number CB C012964 by the State of Florida. At all times material hereto, the Respondent was licensed as an individual only. On or about April 14, 1982, Cedar Homes of Pinellas, Inc., entered into a contract with Mary Fedico to enclose the carport on her home, which was located at 2085 Victory Avenue, Largo, Florida. The contract price was $5,000.00. Mike Fredricks acted as the saleman for this contract on behalf of Cedar Homes of Pinellas, Inc. At all times material hereto, Cedar Homes of Pinellas, Inc., was owned by Kenneth Larrow. The only employees of this corporation were Kenneth Larrow and his son. Cedar Homes of Pinellas, Inc., was formed in January of 1982 for the purpose of performing room additions and other types of construction. On April 14, 1982, the sole officer of Cedar Homes of Pinellas, Inc., was Kenneth Larrow, who also served as a director. An attorney John L. Riley, was the registered agent. At all times pertinent hereto, Kenneth Larrow was not licensed to engage in the business of contracting in the State of Florida. On or about April 16, 1982, Kenneth Larrow and his salesman, Mike Fredricks, went to the City of Largo Building Department to obtain a construction permit for the enclosure of Mary Fedico's carport. Neither of these persons wash qualified, or licensed, to engage in the business of contracting in the City of Largo. Therefore, the Largo Building Department refused to issue a permit for this construction. When Kenneth Larrow and Mike Fredricks were unable to obtain a permit for the construction of the addition to Mary Fedico's home, they informed the Largo Building Department that the qualifier for Cedar Homes of Pinellas, Inc., was Barry L. Critoph, the Respondent. The Largo Building Department informed Mr. Larrow and Mr. Fredricks that the Respondent had to sign the permit application in order for a permit to be issued for the construction to be performed on Mary Fedico's home. On or about April 16, 1982, the Respondent applied for and obtained a construction permit for the enclosure of Mary Fedico's carport. This permit was issued to Cedar Homes of Pinellas, Inc., with the Respondent as the qualifying contractor. At all times relevant hereto, the Respondent did not qualify Cedar Homes of Pinellas, Inc., with the Construction Industry Licensing Board. At all pertinent times, the Respondent did not have in his possession a certificate issued by the Construction Industry Licensing Board with the notation "Cedar Homes of Pinellas Inc." thereon. Moreover, the Respondent admitted he was not positive that he had properly qualified Cedar Homes of Pinellas Inc., when he obtained the permit for the enclosure of Mary Fedico's carport. On or about May 5, 1982, Cedar Homes of Pinellas, Inc., entered into a second contract with Mary Fedico to finish the interior of the carport which was to be enclosed by Cedar Homes of Pinellas, Inc., pursuant to the prior contract, for a price of $710. Kenneth Larrow began to perform the work required under the terms of the two contracts. Mary Fedico never saw the Respondent at the project site. Mr. Larrow hired all subcontractors and was responsible for paying them. He was also responsible for supervision of the construction of the carport enclosure. The Respondent did not know that there was a second contract for interior work in Mary Fedico's carport enclosure, and the Respondent performed no work on the project. He did drive his car by the site three times, but he never entered onto the project, and he simply viewed the construction being performed from the street. The Respondent had no knowledge as to who the subcontractors were on the Fedico project, and he had no responsibility for hiring them. He had no knowledge of the money that was being obtained from this project, and he did not know whether or not the subcontractors were being paid. At a time uncertain, construction of the carport enclosure addition to the Fedico home began to slow down. When Mary Fedico began to receive notices from subcontractors that they were not being paid, she contacted Kenneth Larrow about problems with the construction. However, when Mr. Larrow was unable to satisfactorily respond to Mary Fedico's questions regarding the work, she and her son-in-law took over the project, completed it, and paid all the subcontractors. The cost of completion was between $2,000 and $2,500 more than the contract price had been. As a result of the Fedico contracts noted above, Kenneth Larrow was charged with using the designation of "contractor" without a license, in two counts. Kenneth Larrow plead nolo contendere to these charges, and he was sentenced to pay a fine of $250 plus court costs. Mary Fedico first became aware that the Respondent had some involvement with the construction of the addition to her home when she was subpoenaed to appear at this court proceeding. Prior thereto, she had not been notified by either the Respondent or Mr. Larrow, that the Respondent had any connection with her carport project. The Respondent's involvement with Cedar Homes of Pinellas Inc., was limited to obtaining permits and "supervision". As compensation therefor, the Respondent was to received two percent of the gross sales of the company. He was supposed to check jobs and verify construction, but this supervision was to consist of checking the projects contracted for by Cedar Homes of Pinellas Inc., at his own convenience, to determine if these projects were "okay". The Respondent was not connected with the financial operation of Cedar Homes of Pinellas Inc., he had no financial control over the operations of the corporation, and he could not sign checks. All subcontractors were hired and paid by Kenneth Larrow. Mr. Larrow and his salesmen actually entered into the contracts, and the Respondent had no involvement with the contracts except to determine if work contracted for was structurally sound. Kenneth Larrow actually supervised all of the construction projects of Cedar Homes of Pinellas Inc., on a daily basis, and the Respondent was not aware of all the projects entered into by the corporation. Kenneth Larrow eventually made restitution to Mary Fedico in the amount of $1,250 for the problems which occurred in connection with the carport enclosure work on her home.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number CB C012964 held by the Respondent, Barry L. Critoph, be suspended for two years. THIS RECOMMENDED ORDER entered this 2nd day of December, 1983. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esquire 130 North Monroe Street Tallahassee, Florida 32301 John J. Fogarty, Esquire 327 South Garden Avenue Clearwater, Florida 33517 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue The issues presented for determination at the hearing are as follows: 1/ Whether respondent Department of Transportation (D.O.T.) abused its discretion or acted in bad faith, arbitrarily, capriciously, or under a misconception of law in rejecting all bids received on the subject project on December 21, 1977. Whether the decision of the respondent D.O.T. to reject all bids was made in violation of Florida's Government in the Sunshine Law, F.S. s286.011.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: By a "notice to contractors" dated November 24, 1977, the respondent D.O.T. advertised that it would receive bids on December 21, 1977, from qualified contractors for various construction and maintenance programs. The project which is the subject of this proceeding was contained in this notice, identified as "Gadsden County: Federal Aid Project No. I-10-3(31)157 Contract II (Job No. 50001-3423) SR 8 (I-10)." This project involved the paving of a certain stretch of Interstate Highway 10 in Gadsden County, which stretch was the last remaining unopen portion of I-10. In addition to a short summary of the contents of the project the notice on this project contained the following language which was underlined and capitalized in the notice: NOTE: A PRE-BID CONFERENCE ON THIS PROJECT WILL BE HELD ON WEDNESDAY, DECEMBER 14, 1977, AT 10:00 A.M. IN ROOM 301 OF THE HAYDON BURNS BUILDING, 605 SUWANNEE STREET, TALLAHASSEE, FLORIDA. ALL POTENTIAL BIDDERS WILL BE RE- QUIRED TO ATTEND. NOTE: ON-THE-JOB TRAINING WILL BE REQUIRED FOR THIS PROJECT. Mr. Henry Eugene Cowger, deputy state construction engineer for the D.O.T., made the initial decision to require attendance at a prebid conference for this project, although he himself did not draft the language used in the notice. Cowger felt that a prebid conference would be valuable to bidders and the Department due to the uniqueness of this particular project with regard to the requirements concerning maintenance of traffic and work progress. More specifically, the contract called for a close working relationship and cooperation with the first stage contractor on this stretch of road. The first stage contractor is respondent/intervenor White. Also, it was anticipated that the project would be opened in sections with unusual traffic requirements so that the entire project could be utilized in a limited fashion. Mr. Cowger instructed William F. Ray, the Department's area construction engineer, to arrange for and conduct the prebid conference. No specific instructions were given to Mr. Ray as to which provisions of the contract were to be discussed at the conference. Cowger felt that Ray was knowledgeable with the project and therefore that he needed no instructions. The prebid conference was held as scheduled on December 14, 1977. Representatives of six different construction companies attended, including a representative from respondent White Construction Company. Through neglect or oversight, petitioner Couch did not attend the conference. A memorandum to the file from Mr. Ray indicates that the following occurred at the conference: A statement was made at the beginning of the meeting by W. F. Ray that nothing said by any person at the meeting would change or modify any part of the contract documents. Certain portions of the special Provisions per- taining to maintenance of traffic and limitations of work areas were read and discussed. It was agreed by those present that the intent of these Specials Provisions was clear and under- standable. Mr. McRae of H.D.W. stated that the unknown delay times built into this project would result in much higher than normal bids and his company would probably not enter a bid. After a short discussion of the terms of the contract, the meeting was adjourned. The conference lasted from thirty to forty-five minutes. At the hearing, Mr. Ray related the questions he could remember which were asked by the contractors. It was admitted that virtually all of the provisions and expectations, unique or otherwise, were fully spelled out in the contract documents. Most of the inquiries at the conference related to the absorption of certain maintenance and traffic costs and responsibilities between the contractor and the D.O.T. In each instance, it was disclosed that the D.O.T. would be responsible for these unless the contract specifically provided otherwise. Questions regarding the sequence of operations and the phasing of the work with the first stage contractor were not specifically answered by D.O.T. representatives. Of the three contractors who submitted bids on the subject project on December 21, 1977, only respondent/intervenor White had attended the December 14th rebid conference. Joseph F. Villadsen, petitioner's engineering division vice president, had visited the site of the project and had studied the contract provisions, which appeared clear to him. In numerical order, the bids submitted on December 21, 1977, were as follows: $1,410,730.72 - - petitioner Couch $1,514,272.63 - - respondent/intervenor White $1,579,168.72 - - Contee Sand and Gravel Company, Inc. The respondent has an Awards Committee composed of five executives from the D.O.T. This Committee generally meets once a month to review bids and make a recommendation to respondent's Secretary on the award of contracts for some thirty-five to fifty projects per month. Although Secretary Webb has the authority to make an independent decision and/or to reject the recommendations of the Awards Committee with regard to the acceptance of bids, he could not recall ever having done so. On the afternoon of December 21, 1977, the same day as the bids were received, Mr. Jay Brown, respondent's director of road operations and chairman of the Awards Committee, learned from two representatives of White that the apparent low bidder, petitioner Couch, had not attended the prebid conference. He thereupon called together those members of the Awards Committee who were in the building at that time to discuss what should be done. Brown also counseled with P.E. Carpenter, the division administrator for the Federal Highway Administration, to determine the extent of the federal participation in funding if a bid other than the low bid were accepted. Awards Committee members Brown, Sill Ekey, Peter J. White and Willis Armstrong met on December 21 and 22, 1977. In reaching a determination as to their recommendation to the Secretary, the committee members considered three alternatives -- awarding the contract to Couch as the apparent low bidder, awarding the contract to White as the next lowest bidder and as the only bidder who attended the prebid conference or rejecting all bids received and readvertising for new bids. Each alternative was considered a viable one by the committee members. Although the members felt that the requirement of attendance at a prebid conference was a reasonable requirement due to the uniqueness of the project, no inquiry was made as to what actually transpired at the conference. Nor was any inquiry made as to a reason for petitioner's nonattendance. It was the unanimous decision of those Committee members present that it would best serve the interests of the State to reject all bids and proceed to readvertise. This decision to recommend rejection and readvertisement was based upon several reasons. The prime consideration was that this project involved the last remaining unopen link in Interstate Highway 10 and time was of the essence. It was felt that if the contract were awarded to Couch or to White, there would be litigation causing delay to the completion of Interstate 10. The Committee members were also concerned with the significant amount of difference between the bids of Couch and White. Rejecting all bids appeared to the Committee members to be the "cleaner" way to go. Mr. Brown testified that the D.O.T. does not generally accept the bid where only one bid is received. Here the apparent low bidder and the highest bidder were considered irregular for failure to attend the prebid conference. Thus, the Department was left with only one bid. Through Mr. Brown, Secretary Thomas Webb, Jr., was telephonically notified of the recommendation of the Awards Committee. Mr. Webb concurred with the Committee's recommendation because he was concerned with a possible delay to the project due to litigation were the bid to be awarded to either Couch or to White. Thereafter, the bidders were notified by telegram that all bids on the project had been rejected due to the failure of the low bidder to attend the prebid conference, and that the project would be readvertised. On December 29, 1977, Couch filed a "complaint" with the D.O.T. requesting a hearing pursuant to F.S. s120.57 on the issue of whether the D.O.T. lawfully rejected Couch's bid on the subject project. By Order dated January 9, 1978, Secretary Webb denied Couch's request for a hearing. This denial was appealed by Couch to the District Court of Appeal, First District, and White Construction Company was made a party to that proceeding. After numerous motions were filed and oral argument was had, the District Court, by Order dated February 24, 1978, relinquished jurisdiction for a period of sixty days and remanded the case to the D.O.T. for the purpose of providing Couch a s120.57(1) hearing. The District Court stayed the D.O.T. from awarding the contract for the subject project. Prior to the Orders of the District Court, the D.O.T. readvertised the project, calling for a prebid conference on January 11, 1978, and the receipt of bids on January 12, 1978. This time, attendance at the conference was announced to be "expected," rather than "required." At the hearing, the D.O.T. divulged that attendance at prebid conferences would no longer be required or mandatory in order to avoid the problem inherent in the instant proceeding. Both Couch and White attended the January 11th prebid conference and submitted bids on January 12th. Couch's bid was identical to its December 21, 1977, bid. White submitted a bid approximately $40,000.00 below the bid of Couch. The D.O.T. receives bids on approximately 420 to 550 construction projects a year. During the past ten years, only seven other prebid conferences with required attendance have been held. In those instances, the language contained in the notice was different from the language used in the subject notice. On three occasions the language used was: "ALL PROSPECTIVE BIDDERS MUST ATTEND THIS PRE-BID CONFERENCE AS BIDDING DOCUMENTS WILL NOT BE ISSUED TO CONTRACTORS WHO HAVE NOT BEEN PROPERLY REPRESENTED AT THIS MEETING." On three occasions the language was: "ATTENDANCE WILL BE MANDATORY FOR THOSE INTENDING TO BID ON THIS PROJECT.? On one occasion the language was: "ATTENDANCE WILL BE MANDATORY FOR THOSE INTENDING TO SUBMIT A BID ON THIS PROJECT." The situation where the apparent low bidder has not attended a required prebid conference has never before arisen.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the D.O.T.`s decision to reject all bids and readvertise the subject project be affirmed and upheld. Respectfully submitted and entered this 24th of April, 1978, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Respondent is a certified building contractor having been issued license number CB CA03134. At times material herein, the Respondent was the qualifier for and conducted his contracting business through the entity doing business as A-1 Builders, Inc. On June 29, 1981, A-1 Builders, Inc., entered into a contract with Albert E. and Helen E. Chaloux to construct a residence in Sebastian, Florida, for the sum of $53,158.00 (Petitioner's Exhibit 5). The Chalouxs paid the Respondent a $4,000.00 deposit to commence construction (Petitioner's Exhibit 6 and TR pages 8-9). Respondent did not commence construction of the Chaloux residence nor did he return any portion of the tendered $4,000.00 deposit. On February 24, 1981, A-1 Builders, Inc., entered into a contract with Jeffrey and Linda Ferris to construct a residence in Sebastian, Florida, for the sum of $32,849.00 (Petitioner's Exhibit 1). Respondent completed the Ferris residence during July 1981 and A-1 Builders, Inc., through the person of the Respondent, received full payment at the closing (Petitioner's Exhibit 2). At closing, Respondent transmitted a warranty deed to the Ferrises stating that the property was being delivered to them without any encumbrances (Petitioner's Exhibit 3). At the time of closing, Respondent, through the qualifying entity A-1 Builders, Inc., owed several suppliers and contractors monies for material and services which were furnished for the completion of the Ferris residence and remained unpaid. Specifically, Respondent owed the following suppliers and subcontractors monies: Colkitt Sheet Metal and Air Conditioning, Inc. - $1,500.00 (Petitioner's Exhibits 10-11); Russell Concrete, Inc. - $421.20; and White Drywall - $1,634.00 (Petitioner's Exhibit 7). RESPONDENT'S POSITION Respondent acknowledged that he received a $4,000.00 deposit from the Chalouxs and that he did not commence construction as agreed. However, Respondent urges that A-1 Builders underwent financial difficulties based upon unwarranted newspaper accounts and malicious prosecution by the local State Attorney's office and the Petitioner's investigator which forced him near bankruptcy. Respondent did spend some money toward the initial phases of commencing construction for the Chalouxs which consisted primarily of he payment of monies toward the filing of an application fee for the Chalouxs to obtain financing, the preparation of plans and drawings and some unspecified costs respecting the site preparation for the Chaloux residence. Respecting the allegation that Respondent falsely indicated that there were no encumbrances on the Ferris residence, Respondent's only position is that he was forced to foreclose on certain homes and that the various liens and claims of liens which have been filed by the above-referenced suppliers and subcontractors are being paid as monies are received from the foreclosures.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED that the Respondent's certified building contractors' license number CB CA03134 be REVOKED. DONE AND ENTERED this 12th day of April 1984 in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April 1984.
Findings Of Fact Respondent, Vincent A. Conrad, held a registered building contract's license, issued in August 1973 by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. (Petitioner's Exhibit 1) Respondent qualified CNC Enterprises, Inc. under his registered building contractor's license, number RB 0014098. (Petitioner's Exhibit 1) He admitted that he did not qualify Gulfport Homes, Inc., although he did business under that name. On July 9, 1981, Vincent A. Conrad, d/b/a Gulfport Homes, Inc., contracted with Joseph and Josephine Scovazzo to build a single story house on Lot 2, Unit 6 of the Westport Subdivision; 611 Seabreeze Drive, Port Richey, Florida. The contract price of $87,100.00 included the price of the lot and the construction of the single story "Windjammer" house. Construction was to begin on or about August 15, 1981. The contract required a $10,000 earnest money down payment and a subsequent $22,000 payment to start construction. (Petitioner's Exhibit 7) A total of $32,000 was given to Vincent A. Conrad by the Scovazzos pursuant to the July 9, 1981, contract. The Scovazzos paid Respondent $100.00 when they signed the contract on July 9, 1981, and gave Respondent three checks totaling $31,900.00. A building permit, number 13422, was granted to CNC Enterprises, Inc., on or about September 3, 1981, from the Pasco County Building Department for construction at Lot 2, Unit 6 of Westport Subdivision. The application, dated August 25, 1981, for permit number 13422, indicates that the type of residence to be built was the "Beachcomber," not the "Windjammer" (as listed in the contract). (Petitioner's Exhibit 13) Improvements were made to the lot to include construction of a seawall. A 2-page addendum titled "A" was duly executed by the buyers, Joseph and Josephine Scovazzo, and the seller, Vincent A. Conrad, and made part of the contract. The addendum provided the home was to be elevated to a level of ten feet. (Petitioner's Exhibit 7) Conflicting testimony was received concerning what occurred next. However the house could not be built at the ten foot elevation and the Scovazzos would not accept the house at a lower elevation. The parties mutually decided to terminate the contract on approximately October 19, 1981. On October 19, 1981, Vincent A. Conrad told the Scovazzos on the telephone that he would return their money in a week. On October 19, 1981, Respondent drafted and sent a letter to the Scovazzos referencing their recent conversation. The Respondent specifically represented to the Scovazzos that he would return the $32,000 in approximately three (3) weeks from the day he received their cancellation letter. (Petitioner's Exhibit 10, Transcript page 65) The Scovazzos did not send a letter of cancellation. Respondent received a letter dated October 22, 1981, from the Scovazzo's attorney. Attached thereto was the document executed by the Scovazzos which delineated conditions for cancellation of the July 9, 1981, contract. Under the Scovazzo's terms, the contract would not be canceled unless the $32,000 was received by the Scovazzos before October 29, 1981. (Respondent's Exhibit 1, Transcript page 65) Both parties established conflicting conditions for terminating the contract. The Scovazzos did not send a letter canceling the contract and Vincent A. Conrad did not send the Scovazzos $32,000. When Mr. Scovazzo pressed for the money, Respondent advised that Respondent could not pay him because Respondent's money was tied up in land and improvements. Scovazzos wanted some security and Respondent deeded to the Scovazzos, on or about November 10, 1981, the lot designated in the July 9, 1981, contract. Respondent was building a house on this lot. The Scovazzos admitted the lot was worth at least $32,000. The registered the deed and attempted to obtain title insurance. On or about March 11, 1982, the Scovazzos received a letter (Petitioner's Exhibit 11b) from Title Insurance Company of Minnesota, stating that a title insurance policy could not be issued due to "possible problems which may result from the Lis Pendens (see paragraph 15 below) as recorded in Official Record Book 1155, pages 1933 through 1952 of the Public Records of Pasco County." The Scovazzos did not know about the Lis Pendens. Ultimately, title insurance was obtained through the services of the Respondent's attorney in March of 1982. (Petitioner's Exhibit 11c, Transcript page 77) Vincent A. Conrad obtained several building permits for lots near the Scovazzos lot prior to the effective date of Ordinance 81-16 which set minimum elevations for homes built after October 31, 1981. The Respondent avoided the extra cost of complying with the new standards established by Ordinance 81- The additional permits were obtained between October 1, 1981, and October 21, 1981. (Petitioner's Exhibit 13, Transcript pages 124-125, and 132) On December 11, 1981,. Respondent was found guilty in the United States District Court in Tampa, Florida, in case number 80-00083-CR-T-K for negligently discharging pollutants into the navigable waters of the United States. Respondent's actions were in violation of Title 33, United States Code, Section 1311. The conviction arose as a result of Respondent's dredging activities in the construction of the Westport Subdivision. Respondent was fined $2,500.00 and placed on six (6) months probation. (Petitioner's Exhibit 4, Transcript pages 14-15, and 35-37) At the time the Respondent contracted with the Scovazzos to build their house, his company was being sued by the United States Government which filed a Lis Pendens in Lot 2, Unit 6, Westport Subdivision in October 1981. (Petitioner's Exhibit 6) Respondent asserted the position that the lot in question was not properly involved in the suit. The court found the lot was not involved. Vincent A. Conrad is an officer/director of both Gulfport Homes, Inc. and CNC Enterprises, Inc. (Petitioner's Exhibit 2) On or about November 15, 1982, the Scovazzos were finally able to sell the lot deeded to them by Vincent A. Conrad for more than $32,000.
Recommendation Pursuant to a notice, a formal hearing was held in the above-styled case before the Division of Administrative Hearings by its duly designated Hearing Officer, Stephen F. Dean, on October 15, 1985 in New Port Richey, Florida. This case was presented upon a three count administrative complaint which alleges that the Respondent failed to qualify a company before engaging in contracting; that Respondent has acted in a name other than that set forth on his license; that the Respondent was convicted and found guilty of a crime, in any jurisdiction, which directly relates to the practice of contracting; that the Respondent made misleading, fraudulent, untrue, or deceptive representations in the practice of contracting; and that the Respondent diverted funds received for the completion of a specified construction project. The following allegations were proven: that the Respondent has acted in a name other than that set forth on his license; that Respondent failed to properly qualify a company under which he was doing business; and that Respondent was found guilty of a criminal offense related to the practice of contracting. The other allegations were not proven or, if the facts were proven, it was determined that the acts did not violate the statute.
The Issue Whether Department of Transportation acted fraudulently, arbitrarily, capriciously, illegally, or dishonestly in issuing its intent to award RFP-DOT- 91/92-9012 bid to Trauner Consulting Services.
Findings Of Fact Public notice that DOT was seeking competitive bids was given, and DOT prepared a document entitled: Request for Proposal, which set forth in detail all of DOT's requirements. The purpose of the RFP was to inform all potential bidders of the minimum requirements for submitting a responsive bid, and the specific criteria by which the bids would be evaluated. Specific areas of importance to Respondent were as follows: All proposals were to be submitted in two parts; the Technical Proposal and the Cost Proposal. The Technical Proposal was to be divided into an Executive Summary, Proposer's Management Plan and Proposer's Technical Plan. The price proposal was to be filed separately. The RFP requested written proposals from qualified firms to develop and provide training on highway and bridge construction scheduling use as it pertains to Department of Transportation Construction Engineers. Proposals for RFP-DOT-91/92-9012 (hereinafter "RFP"), were received and opened by FDOT on or about December 14, 1992. Eleven companies submitted proposals. The technical portions of the proposals were evaluated by a three (3) person committee comprised of Gordon Burleson, Keith Davis and John Shriner, all FDOT employees. Gordon Burleson is the Engineer of Construction Training for FDOT. He administers the training for FDOT engineers and engineer technicians who work in FDOT's Construction Bureau. John Shriner is the State Construction Scheduling Engineer for FDOT. Keith Davis is the District 7, Construction Scheduling Engineer and Construction Training Engineer for FDOT. The Committee members evaluated the proposals individually then met as a group. The Committee established no formal, uniform evaluation criteria to be used by all committee members. The price proposals were not revealed to the Committee members until after the proposals were technically evaluated and scored. The price proposals were reviewed separately by Charles Johnson of the Contractual Services Office, Department of Transportation. The Committee evaluated the proposals based on the general criteria contained in the RFP. The RFP listed the criteria for evaluation to include: Technical Proposal Technical evaluation is the process of reviewing the Proposer's Executive Summary, Management Plan and Technical Plan for understanding of project qualifications, technical approach and capabilities, to assure a quality project. Price Proposal Price analysis is conducted by comparison of price quotations submitted. The RFP established a point system for scoring proposals. Proposer's management and technical plans were allotted up to 40 points each, 80 percent of the total score. The price proposed was worth up to 20 points, or 20 percent of the total score. Petitioner's proposal was given a total score of 90 points out of a possible 100. Trauner's proposal was given a total score of 92.04 points out of a possible 100. Petitioner's was ranked highest for price proposal, and received a total of 20 points for its proposed price of $18,060. Trauner's proposed price was $24,500, the next lowest after Petitioner and received 14.74 points. The technical portion of Trauner's proposal was given a total of 77.3 points, 38 for its Management Plan and 39.3 for its Technical Plan. The technical portion of Petitioner's proposal was given a total of 70 points, 36.7 for its Management Plan and 33.3 for its Technical Plan. Each plan was reviewed separately by the three Committee members, The individual, pre-averaged scores vary with committee member, Keith Davis' score varying the most from the others. The Committee members did not discuss the proposals until after they had individually reviewed and scored them. The Committee members had discussed the criteria prior to receiving and evaluating the proposals. There was insufficient evidence to show that Committee members scores were determined by fraud, or were arbitrary, capricious, illegal, or dishonest.
Recommendation Based on the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that Respondent, Department of Transportation enter a Final Order dismissing the protest filed herein by Petitioner, Systems/Software/Solutions and awarding RFP-DOT-91/92-9012 to Trauner Consulting Services. DONE and ENTERED this 12th day of March, 1992, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 12th day of March, 1992. APPENDIX Respondent's Proposed Findings of Fact: Accepted in substance: paragraphs - 1,2,3,4,5,6,7,8, 9,10,11,12,13,14,15,16,17,18,19,20,21 Petitioner's Proposed Findings of Fact: Accepted in substance: paragraphs - 1,5,11(in part) Rejected as not supported by the greater weight of evidence or irrelevant: paragraphs 2,3,4,6,7,8,9,10,11(in part),12 COPIES FURNISHED: Donald F. Louser, Qualified Representative Systems/Software/Solutions 657 Sabal Lake Dr, #101 Longwood, Florida 32779 Susan P. Stephens, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation Attn: Eleanor F. Turner, MS-58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact In June 1987 The School Board of Lee County, Florida invited the submission of sealed bids for grading and drainage improvements at the new Multipurpose Building at Fort Myers High School. In addition to requiring grading, the project involves the erection or placement of structures in the nature of a drainage system consisting of culverts, pipes, and concrete inlets with grates, to be tied into the existing drainage system off School Board property across a county right-of-way into a culvert for discharge across the street, and which on School Board property attaches to and becomes a part of an existing building. Sealed bids were submitted by Systems Technologies Co. of Ft. Myers, Inc. (hereinafter "Systems Technologies") and by Ledo Lines, Inc. Respondent determined Systems Technologies to be the lowest responsible bidder and advised Ledo Lines, Inc., that it would be awarding the contract to Systems Technologies. Warren W. Hunt is the president and the qualifying agent of Systems Technologies. Hunt has an underground utilities contractor's license which has been inactive since it was obtained by him in March, 1986, being inactive therefore both at the time that Hunt submitted the bid on behalf of Systems Technologies and at the time of the final hearing in this cause. The inactive status results from Hunt's failure to complete the license process with the State of Florida. Since Hunt's license was inactive due to being incomplete at the times material to this cause, neither Hunt nor Systems Technologies was a licensed contractor and Systems Technologies was not a responsible bidder at the time that the bid was submitted. The contract specifications set forth the method by which the bids would be evaluated. Paragraph numbered 2.9 on page PD-4 provides as follows: Comparison of Proposals - Proposals will be compared on the basis of total computed price for each division of work. Total computed price equals the sum of the prices for the lump sum Contract Item, plus the sum of the total prices for the unit price Contract Items for each Division of work. The total price for each unit price Contract Item will be obtained by multiplying the estimated quantity of each item by the correspond- ing unit price set forth in the Proposal form[.] That provision, accordingly, requires that the bids be evaluated based upon the sum of all line items rather than based only upon their total or "bottom line" figure. Respondent's Director of Facilities Planning admitted that he failed to comply with this provision of the contract specifications in evaluating the two bids submitted to him and in determining that the bid should be awarded to Systems Technologies. In Systems Technologies' bid, the sum of the prices for the lump sum contract items plus the sum of the total prices for the unit price contract items amounts to $30,109.60. However, in submitting its bid Systems Technologies incorrectly added its column of figures and incorrectly computed its Total Contract Price (Estimated) to be $29,768. Since the contract specifications envision a unit price bid rather than a lump sum bid, the amount of the bid of Systems Technologies is in fact the amount of $30,109.60. The bid of Ledo Lines, Inc., is for $29,913.84. Ledo Lines, Inc., is, therefore, the low bidder on this project. The contract specifications when read in their entirety clearly require that the low bid be determined by adding the unit price and lump sum components rather than relying on the lump sum "bottom line" figure shown for Total Contract Price (Estimated). Employees of the consultant who Prepared the specifications testified that they expect to be able to hold the bidders to the unit prices but not to the Total Contract Price (Estimated) because the estimated quantities may change. Thus, the evidence is uncontroverted that the determination of low bidder pursuant to the contract specifications is based upon the total of the unit price provisions and not by the single figure at the bottom of the page which adds those individual prices and which was added erroneously in this case by Systems Technologies. In their Prehearing Stipulation, the parties stipulated that the School Board is subject to mandatory competitive bidding for this project. They further stipulated that where there is mandatory competitive bidding, the contract must be awarded to the lowest qualified, responsive bidder. Since Systems Technologies is neither a qualified, responsive bidder nor the lowest bidder, it is clear that Ledo Lines, Inc., is the lowest responsive bidder for the project in question.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered determining Ledo Lines, Inc., to be the lowest responsive bidder and awarding the contract for grading and drainage improvements to the Multi- purpose Building at Fort Myers High School to Ledo Lines, Inc. DONE and RECOMMENDED this 25th day of September, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1987. COPIES FURNISHED: James E. Melvin, Superintendent School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901 E. G. Couse, Esquire Post office Drawer 1647 Fort Myers, Florida 33902 Harry A. Blair, Esquire Post Office Box 1467 Fort Myers, Florida 33902
