Findings Of Fact On or about October 28, 1987, the Department of Health and Rehabilitative Services (HRS) mailed its Invitation To Bid (ITB) No. 88-32BC to prospective bidders. According to the Special Bid Conditions of ITB No. 88- 32BC, the stated purpose of the ITB was "to obtain competitive bid prices from Vendors/Contractors for the purchase and installation of Open Office Partitions/Furnishings and related accessories for use by the department's ABUSE REGISTRY, located in the East Wing, 2729 Fort Knox Blvd., Tallahassee, Florida 32308." Included among the responses to the ITB were bids by International Interiors, Inc., (International), by Perdue Office Interiors, Inc., (Perdue), by Executive Office Supply, Inc. (Executive), and by Haworth. The construction of the future HRS office space in the East Wing of 2729 Fort Knox Blvd. was coordinated between the owner and HRS to accommodate the needs of the HRS Abuse Registry. The space will be used by qualified HRS personnel and support staff to receive and maintain telephone reports of child abuse and related complaints. HRS consulted with the owner's architect to determine the ultimate floor plan of the HRS space in the building and then consulted an interior design expert to determine how HRS could best utilize the space for the purposes of the Abuse Registry through these efforts, HRS designed an office interior consisting of a system of partitions and furniture. The interior design was reduced to a blue print or design drawing specifying gross dimensions as well as the particular dimensions of offices, partition panels, hallways, work space (desk tops), related components of the system and the particular location of building support columns and electrical power poles. The ITB included a design drawing and provided in pertinent part in its Special Bid Conditions: DESIGN: This project has a limited amount of space with fixed walls and fixed dimensions as given on the architectural drawing. Each vendor must guarantee his system will fit into the space without any violation of Florida Building Codes. Design Drawings and a Component Listing have been included in each bid package so that each vendor will have the equal opportunity to evaluate the project as a whole as well as by its parts. All dimensions are listed as nominal dimensions since various manufacturers' component varys [sic] somewhat in exact dimensional sizes. Surface materials and colors will be selected from the successful vendor's line after the award of the bid has been made. SITE EXAMINATION: The area to be used by the Abuse Registry is located on the main floor, east wing, 2729 Fort Knox Blvd., in Tallahassee, Florida 32308. The site has existing walls, columns, door entrances, etc., which will have to be taken into consideration when integrating your open office system into the design scheme. It is the responsibility of the vendor to inspect the premises and familiarize himself with all of these on-site conditions. A floor plan has been provided for reference only, and any specific analysis or dimensioning should be made on site by the vendor. Contact Mr. DeVoe Moore to schedule a tour of the work site. (904) 656-6211. Failure to consider on-site conditions may result in disqualification of the bid. The Technical Specifications provide in pertinent part: All dimensions in this component listing has [sic] been provided for the purpose of fulfilling the overall dimension requirements as shown in the furniture plan. Variations from these will occur between different manufacturer's products. In providing dimensions other than those listed, it is critical to maintain a minimum hall clearance of 4'0" or code requirement and to work within the given permanent walls. (Emphasis added.) International's bid was the lowest at $211,523.96. But HRS disqualified it as nonconforming because cursory review, as well as International's own design drawing furnished with its bid, showed that International's proposal would intrude three feet into a four foot hallway around the perimeter of the office space which is required, and is required to be four feet wide, by the applicable building codes and the State Fire Marshal. HRS' disqualification of the International bid on that ground was erroneous under the facts presented at final hearing. The intrusion of the International proposal into the required hallway was due to International's error in configuring the partition panels for purposes of the design drawing. No other bidder even included a design drawing, which was not required by the ITB. The apparent intrusion of the International proposal into the hallway is easily corrected by swapping 66" partition panels that had been placed along the length of the office space for purposes of preparing International's design drawing with 48" partition panels that had been placed perpendicular to the 66" panels. With this new configuration, the International bid fits into the gross dimensions of the HRS office space without any loss of work space or cabinet space as a result of the reconfiguration. 3/ However, International's Shaw/Walker product has partition panels that are 3" thick. (The ITB calls for partition panels that are at least 2" thick. See Finding Of Fact 15, below.) At least in part for that reason, International cannot fit as much Shaw/Walker furniture into the HRS office space as specified in the HRS design drawing. To fit the Shaw/Walker product into the space, International substituted 42" corner desk tops for the 48" corner desk tops specified in the Technical Specifications of the ITB in 36 of the 60 office cubicles in the design drawing. This results in a loss of 6" of desk top on either side of those corner desk tops, a total of 6 square feet of desk top in each affected cubicle, and reduces the size of those 36 office cubicles from 64 to less than 58 square feet. Neither Executive nor Perdue had to vary from the Technical Specifications, and they will be able to duplicate the HRS design drawing without losing desk top surface area or office cubicle square footage. If it knew it could have put together an acceptable bid offering less work space, Perdue could have done so at a lower cost and therefore at a lower bid price. Under the ITB, the dimensions of the individual components were nominal, but the assembly of components to reproduce the overall dimensions of the furniture plan on the HRS design drawing was a mandatory bid specification. Although it was the lowest in price, International's bid must be disqualified as unresponsive. As between Perdue and Executive, Executive made the lower bid by only approximately $235, $228,000 to $228,235.36. However, Executive's bid departs from the Technical Specifications in several significant respects. The Special Bid Conditions of the ITB provides in pertinent part: SYSTEM QUALITY - BRAND NAMES: It is the intent of the solicitation that the successful bidder provide modular furnishing comparable-in quality to: Haworth Steelcase Shaw/Walker HRS approved equivalent The department considers that the above furnishings establish standards for comparison and identify levels of quality for design of materials, methods of fabrication and assembly. The department retains the right to determine the acceptability of systems not mentioned above. Bidders proposing systems and components as alternates to those identified above must submit a request for pre-qualification to include complete descriptive literature and a list of current installations. (Emphasis added.) Executive pre-qualified the Westinghouse Furniture Systems' Wes Group product which it bid. The Westinghouse furniture generally is comparable in overall quality to the three specified products -- Haworth, Steelcase and Shaw/Walker. However, the Haworth, Steelcase and Shaw/Walker products were specified not only because of their overall quality but also because HRS, through its consultant, understood that they would meet the requirements of the Technical Specifications of the ITB. The ITB does not state or suggest that its Technical Specifications are waived by pre-qualification of an "equivalent" product. HRS had several major concerns, in addition to the furniture design or floor plan, in putting this project out for bid. Due to the number of people who would be doing primarily telephone work in an open office environment, one primary concern was for high quality acoustical panels. Under "Power And Communication Panels," the Technical Specifications of the ITB state in pertinent part: Acoustical fabric panels shall maintain a Noise Reduction Coefficient (NRC) rating of .90 or greater and an STC rating of at least 29. The higher the acoustical rating of a partition panel, the higher its cost. Therefore, if a bidder could reduce the acoustical rating, it could afford to make a more price competitive bid. For that reason, Perdue telephoned HRS' consultant before submitting its bid to ask if the acoustical rating was "critical" and was told that it was. Perdue bid Steelcase product, including partition panels that conform to the requirements of the Technical Specifications instead of its lower cost, lower rated panels. Executive bid partition panels with an NRC rating of only .80 and an STC rating of only 27. Another major concern of HRS was for quality, durable construction so that HRS could expect to get years of satisfactory use of the furniture system it was purchasing. For this reason, the "Power And Communication Panels" section of the Technical Specification also provides in part: "All panels shall have a minimum 2" all-steel frame." Steelcase partition panels meet the specification; Westinghouse panel frames are only 1 1/2" thick. HRS also wanted to be sure that the office furniture system it was purchasing would be able to accommodate the need for its Abuse Registry personnel to work with a variety of electrically-operated equipment, including computer equipment. Under "Electrical Panels," the Technical Specifications of the ITB provide in pertinent part: "Panels shall have the capability of distributing four 20 amp circuits, one isolated; UL listed." The Westinghouse panels Executive bid have the capability of distributing only three 20 amp circuits (without additional electrical components.) Meanwhile, Perdue's bid meets this specification, too. When Perdue telephoned to inquire about the acoustical specification, it also asked if this electrical specification was critical, and the HRS consultant confirmed that it was. Therefore, Perdue bid higher priced panels that meet the specifications instead of lower priced panels comparable to the Westinghouse panels Executive bid. Both Perdue's and Executive's bid had some other minor non- conformities. Perdue's Steelcase overhead cabinets operate by a nylon glide with metal scissor hinge instead of by a ball bearing hinge, as specified, and its panel tackboards are 15 1/2" x 30" instead of 24" x 30", as specified. But Executive's Westinghouse partition panels have adjustable glides on the post by which the panels are connected instead of two adjustable glides on each panel, as specified (assuming panel-to-panel connections). Because it does not meet critical aspects of the Technical Specifications of the ITB, the Executive bid must be disqualified as unresponsive. The Haworth bid also was responsive but was for approximately $270,000, far above the others. Perdue's bid, as the lowest responsive bid, should be awarded the contract.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order (1) granting the bid protests of both International and Perdue insofar as they protest the award of HRS Bid 88-32BC to Executive on the ground that the Executive bid is unresponsive, (2) denying the International protest insofar as it seeks the award of HRS Bid 88-32BC on the ground that it too is unresponsive, and (3) granting the bid protest of Perdue also insofar as it seeks the award of HRS Bid 88-32BC because Perdue is the lowest responsive bidder. RECOMMENDED this 27th day of January, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 27th day of January, 1988.
The Issue The issue in the case is whether the Petitioner is entitled to credit for answers, which the Respondent scored as incorrect, to three questions on the February 2003 General Contractor Construction Examination.
Findings Of Fact The Petitioner took the General Contractor Construction Examination on February 11, 2003. After being notified that he did not pass the test, the Petitioner requested a review of the test and his responses. Following the informal review of his examination answers, the Respondent awarded no further credit and the Petitioner requested an administrative hearing. The Petitioner initially challenged the scoring of his answers to 12 examination questions. The challenged examination questions are identified as Business and Finance AM questions 6, 12, 33, and 40, Business and Finance PM questions 2 and 25, and General Contract Administration questions 21, 22, 30, 34, 48, and 59. At the hearing, the Petitioner withdrew his challenges to Business and Finance AM questions 6, 12, and 33, and maintained his challenge to Business and Finance AM question 40. Business and Finance AM question 40 requires an examination candidate to identify the proper response, according to a specified reference source, to the hypothetical discovery of hidden asbestos revealed during a demolition process. The correct answer to Business and Finance AM question 40 requires a contractor to stop working and notify the owner and architect in writing. The answer is directly referenced in the text of "General Conditions of Contract," a book that the Petitioner was permitted to use during the examination. The Petitioner's answer to Business and Finance AM question 40 was to stop work and notify the owner by telephone. The evidence fails to establish that the Petitioner's response to Business and Finance AM question 40 is correct or that the Petitioner is otherwise entitled to credit for his answer. At the hearing, the Petitioner withdrew his challenges to Business and Finance PM questions 2 and 25. The Petitioner also withdrew his challenges to General Contract Administration questions 30, 34, 48, and 59, and maintained his challenge to General Contract Administration questions 21 and 22. General Contract Administration question 21 requires an examination candidate to calculate the workday upon which concrete footers could be poured following completion and inspection of specified preparatory work. According to the question, no inspection or other work occurs on Saturdays or Sundays and an inspection would occur on the workday after the footing preparation was completed. The question provided that the specified preparatory work would begin on a Monday and would take seven days to complete. An inspection would occur on the eighth workday. The correct answer to General Contract Administration question 21 was that the footers could be poured on the ninth workday. The Petitioner's answer to General Contract Administration question 21 was that the footers could be poured on the eleventh day. The Petitioner incorrectly included the weekend in his calculation of workdays. The evidence fails to establish that the Petitioner's response to General Contract Administration question 21 is correct or that the Petitioner is otherwise entitled to credit for his answer. General Contract Administration question 22 requires an examination candidate to calculate the total linear feet of rebar needed to reinforce a footer of specified length and construction. The calculation of the total linear feet of rebar as performed at the hearing by the Respondent's witness, William H. Palm (qualified as an expert in General Contracting), is accepted as correct. Based on the specifications given in the question, Mr. Palm calculated that there would be eight 20-foot bars with the eight bars overlapping each other by 12.5 inches at each of seven overlaps. Multiplying the seven overlaps by 12.5 inches results in 7.29 feet of total overlap. Adding the total overlapping segments to the 160-foot total and multiplying the results by the four continuous bars results in an answer to General Contract Administration question 22 of 669.16 feet. The closest possible answer from the multiple choices listed in the examination question is 670 linear feet. The Petitioner's answer to General Contract Administration question 22 was that 666 linear feet of rebar would be required. The evidence fails to establish that the Petitioner's response to General Contract Administration question 22 is correct or that the Petitioner is otherwise entitled to credit for his answer. The Petitioner also challenges as inappropriate and unfair, the use of "general trade knowledge" as a reference to correct answers. The evidence presented by the Petitioner fails to establish that the use of "general trade knowledge" is inappropriate or unfair. General trade knowledge is general or common knowledge among professionals in the trade. The list of appropriate references available to all examination candidates states that some questions will "be based on field experience and knowledge of trade practices."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order dismissing the Petitioner's challenge to the grading of the Petitioner's responses to the February 2003 General Contractor Construction Examination. DONE AND ENTERED this 12th day of December, 2003, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2003. COPIES FURNISHED: Carl Malavenda 15811 Gulf Boulevard Redington Beach, Florida 33703-1733 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Nancy Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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
The Issue Whether respondent should award the contract for the reroofing of Rickards High School, Project No. LCS-33016, to petitioner or reject petitioner's bid as unresponsive because it was not accompanied by a specimen copy of a manufacturer's roofing system guarantee?
Findings Of Fact By advertisement to bid prepared after February 8, 1991, and before March 21, 1991, the School Board advised prospective bidders where they could find drawings and specifications for reroofing James S. Rickards High School, Project No. LCS-33016. Petitioner's Exhibit No. 5. The advertisement to bid announced the bid deadline and stated that the School Board reserves the right to waive irregularities and/or information in any Bid and to reject any or all Bids in whole or part, with or without cause, and/or accept the Bid that in its judgment will be for the best interest of the School Board. Petitioner's Exhibit No. 5. The invitation to bid, Section B, 7., also addressed rejection of bids, stating: The Bidder acknowledges the right of the Owner to reject any or all bids and to waive any informality or irregularity in any bid received. In addition, the bidder recognizes the right of the Owner to reject a bid if the bidder failed to furnish any required bid security, or to submit the data required by the bidding document, or if the bid is in any way incomplete or irregular; to reject the bid of a bidder who is not in a position to perform the contract; and to readvertise for other or further bid proposals. The Owner reserves the right to reject any or all bids when such rejection is in the interest of the Owner, and to reject the Bid of a Bidder who is not in a position to perform the Contract, or whose List of Subcontractors is improperly prepared, or not included in the Bid proposal. Failure to complete the Form PUR 7068 Sworn Statement under Section 287.133(3)(a), Florida Statutes on Public Entity Crimes and submit it with your bid or proposal will result in immediate disqualification of your bid or proposal. Petitioner's Exhibit No. 7. Only the failure to submit a completed Form PUR 7068 was identified as grounds for automatic rejection of a bid. The invitation to bid specified three different types of shingles that would meet the School Board's requirements. All three (including GAF 75) are of a premium grade, and guaranteed by their manufacturers for 20 years. The invitation to bid, Section Q, 4., entitled "Guarantees and Warranty," states: 4.01 Upon completion of the work, and before final payment, contractor shall furnish owner an unlimited ROOFING SYSTEM GUARANTEE with flashing endorsement covering all workmanship and materials issued by the roofing materials manufacturer for a period of 20 years from date of substantial completion. Petitioner's Exhibit No. 7. Earlier on, the invitation to bid, Section B, 3.05, states: (d) Contractor shall submit with his bid, proposal or quotation a specimen copy of the ROOFING SYSTEM GUARANTEE with flashing endorsement applicable to the project. Petitioner's Exhibit No. 7. According to Paul Byrd, respondent's Director of Construction, the purpose of requiring a specimen copy beforehand is twofold: the primary reason is to permit the evaluation of exclusion clauses, and, of less significance, he said, a specimen warranty shows that the bidder has a relationship with a manufacturer of roofing materials. Eight roofing contractors bid on the job, including Register Contracting Co., Inc. (Register). Petitioner Southeast's bid was low at $644,400, and Register was second low at $655,000. Petitioner's Exhibit No. 3. Southeast was the only one of the eight bidders who did not include a specimen copy of a manufacturer's roofing system guarantee with its bid. Register submitted two such specimens, one from Manville Products Corporation and one from GAF Building Materials Corporation (numbered 10446 9/88.) The LCS-33016 bid form proposal executed by Southeast and Register alike recites that the bidder has "examined carefully the . . . specifications . . . and if awarded the contract . . . will contract . . . to furnish all necessary . . . materials." Petitioner's Exhibits Nos. 1 and 2. The successful bidder may elect to use GAF 75, the Johns-Manville, or a third shingle specified in the invitation to bid. Well after the deadline for submitting bids, petitioner furnished the School Board a specimen copy of GAF Building Materials Corporation's guarantee, Petitioner's Exhibit No. 4, another form 10446 9/88 with wording identical to the copy Register submitted on time. Warranties differ depending on the grade of shingle, but this is the manufacturer's current form for all GAF 75 shingles. The form has blanks for "TYPE OF GUARANTEE," "PERIOD OF COVERAGE," "TYPE OF FLASHING," "AREA OF ROOF" and the like, none of which either Register or Southeast filled in. Form 10446 9/88 sets out exclusions from coverage and states that the guarantee "becomes effective only when bills for installation and supplies have been paid in full to the roofing contractor and materials suppliers, and the Guarantee charge has been paid to GAF. . . . [and] upon the satisfactory completion of the roof and GAF's execution of the Guarantee." Petitioner's Exhibit Nos. 2 and 4. The form also states, "The roofing contractor is NOT an agent of GAF." Id. (Emphasis is in original.) Mr. Byrd testified at hearing that the exclusion clauses in Form 10446 9/88 might be consistent with the unlimited guarantee required by the invitation to bid, Section Q, 4.01, but that he had not determined that they were consistent. On the other hand, he also testified that Register's bid is responsive and that, if Register is awarded the contract, Register will be free to use GAF 75 shingles, upon approval of submittals.
Recommendation It is, accordingly, RECOMMENDED: That respondent award petitioner the contract to reroof James S. Rickards High School, Project No. LCS-33016. DONE and ENTERED this 23rd day of May, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1991. COPIES FURNISHED: Fred C. Isaac, Esquire Lewis, Paul & Isaac, P.A. 2468 Atlantic Blvd. Jacksonville, FL 32207 C. Graham Carothers, Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, FL 32302 Mr. Bill Woolley, Superintendent Leon County School Board 2757 W. Pensacola Street Tallahassee, FL 32304
The Issue This case is a bid protest filed by Petitioner, L. Cobb Construction ("Cobb"), to contest the award of a contract by Respondent, Hardee County School Board ("School Board"), to another bidder to the exclusion of Cobb. The issue is whether Cobb's bid was responsive to the bid criteria; and whether the School Board's award of the bid to another party should be deemed clearly erroneous, contrary to competition, arbitrary or capricious.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of the proceeding, including the Amended Joint Pre-Hearing Stipulation of the parties, the following Findings of Fact are made: Cobb is a construction company with decades of experience and has been involved with projects for the School Board in the past. The School Board is responsible for bidding out all construction projects and must determine the best qualified bidder at the lowest price. The parties agreed to the following facts as set forth in their Amended Joint Pre-Hearing Stipulation: A "Bid Proposal for Roof Removal and Replacement" advertisement was placed in the Herald-Advocate newspaper on October 21, 2010. (The roof replacement will be referred to herein as the "Project.") A mandatory pre-bid meeting at Wauchula Elementary was held for potential roofing contractors on October 29, 2010. The meeting was led by roofing consultant Scott Bonk and Associates ("Bonk"). The School Board received Cobb's bid on the Project at 12:34 p.m., on November 15, 2010. School Board officials began opening all bids for the Project at 1:00 p.m., on November 15, 2010. Project bids were received from Cobb, Advanced Roofing, Crowther Roofing, Hamilton Roofing, Latite Roofing & Sheet Metal, Southern Roofing, and THL Roofing. Bonk was present at the time the bids were opened. Bonk sent an email to Rob Krahl on November 16, 2010, concerning Cobb and Latite's bids. Bonk advised Krahl that the Cobb bid did not meet the specified components, but that the Latite bid met all components and timeframes for the Project. Bonk recommended Latite as contractor for the Project. The School Board approved the recommendation of Latite, whose bid was $152,065 for the replacement of the roofs on building Nos. 5 (the exceptional student education or "ESE" building) and 6 (the media center). On November 17, 2010, Deputy Superintendent Woody Caligan faxed School Board Policy 6.07(5), entitled Bid Disputes and Procedures, to Cobb. A Notice to Proceed letter was faxed to Bonk on the same date, authorizing Latite to commence the Project. A denial letter was also faxed to each of the other bidders. On November 18, 2010, Cobb hand-delivered a Notice of Protest to Rob Krahl at the School Board. On November 26, 2010, Cobb mailed a cover letter and three original Letters of Protest, along with a cashier's check for the protest bond, to Rob Krahl. On November 29, 2010, Cobb faxed a copy of proof of postage, School Board Rule 6.07(5), its Letter of Protest, and a copy of its previously-issued cashier's check to Wood Caligan after Caligan indicated that he had not received the mailed version. The School Board is the governing entity of the school district of Hardee County, Florida. David Durastanti is the superintendent of schools for Hardee County; Woody Caligan is the deputy superintendent. Rob Krahl is an employee of the School Board and is responsible for facilities and construction projects for the school system. Barbara Spears is a School Board employee serving under Krahl. Joann McCray serves as secretary to the superintendent. Greg Harrelson is the chief financial officer for the school district. Harrelson's duties include the receipt, review and award of bids for the school district. A document entitled, "Project Manual," was issued by Bonk relative to the request for bids on the Project. The Project Manual contained the specifications for the Project, including a section entitled, "Bid Form" (comprised of pages 20 through 22). The Bid Form is the critical portion of the Project Manual for purposes of the instant proceeding. The Bid Form had several blanks to be filled in by the bidding party. The bidder was to fill in the contractor's name, a projected cost for the replacement of both roofs (the ESE building and the media center), a total cost line, a line for the amount of the payment, and a line for the performance bond amount. Following those blanks, there was a section that forms the crux of the dispute in this case. That section provided a space for identification of materials proposed by each bidder. It appeared as follows: The base bid price is based on the following: Manufacturer's Name Base Sheet Intermediate Ply Granulated Ply Insulation Manufacturer The responses by Cobb to this section of the Bid Form were deemed inappropriate by Bonk. Latite's responses to this section were deemed appropriate and compliant with the bid requirements. Cobb's responses were as follows: Manufacturer's Name: GAF Base Sheet: GAF-Ruberoid Modified Base Intermediate Ply: GAF-Ruberoid Granulated Ply: GAF-Ruberoid Mop Plus Insulation Manufacturer: GAF Latite's responses were as follows: Manufacturer's Name: Soprema Base Sheet: Sopra 6 Intermediate Ply: Elastophene 180 Sanded Granulated Ply: Elastophene FR 6R Insulation Manufacturer: GAF (Made by Atlas) These responses indicate the primary differences between Cobb and Latite's bids. Another important factor (and distinction between Cobb and Latite's bids) was the roof insulation material proposed by each. Cobb proposed using Perlite; Latite proposed Sopra Board. These will be discussed more fully herein. GAF, referenced by both Cobb and Latite in their responses, is the largest roofing manufacturer in the United States. The company is 125 years old and is based in Wayne, New Jersey. A representative of GAF testified at final hearing. At about the time bids were submitted for the Project, a representative from Bonk's office called GAF to discuss specifications about various GAF products. There were at least two conversations, one of which was generic in nature and one which somewhat addressed the Project specifically. Bonk determined from the discussions with GAF that neither the Ruberoid Mop Plus proposed by Cobb for its granulated ply, nor the Ruberoid Modified Base Sheet portion of the bid was available in Florida. Further, Bonk learned that the Perlite product proposed for the roof insulation by Cobb was inferior to the Sopra Board proposed by Latite. A letter setting forth his findings was sent to the School Board on November 16, 2010. The Project Manual set forth certain specifications to be used by bidders concerning materials to be used for the Project. The roofing system specifications contained a direction that "[s]hould Soprema products be used, the following membrane sheets are required," and then went on to list the various products that could be used. Latite proposed the use of Soprema products and most of its materials were Soprema brand (except for its insulation, where a GAF brand product was proposed). Cobb, on the other hand, bid GAF products for each of the major Project components. By using Soprema products, Latite ensured compliance with the basic specifications set forth in the Project Manual. Generally a project bid sheet will contain an ASTM product code number which allows contractors to look at comparable materials from different manufacturers. The Project Manual in this case did not include ASTM codes. Any bidder proposing to use materials made by a company other than Soprema, therefore, would be required to independently determine comparability with the Soprema brand product. Cobb's proposed materials list included non-Soprema manufactured products. The GAF products proposed by Cobb may generally have been comparable to the Soprema products, but the evidence is not persuasive as to that fact. Although the GAF representative testified that its products were of high quality and would likely satisfy the requirements for the Project, there was some question as to whether the items set forth by Cobb in its bid were sufficiently described. Bonk made some inquiry into the matter by contacting GAF, but the hearsay and nebulous nature of those discussions does not provide sufficient detail for formulation of a finding of fact as to whether the products were of comparable quality. Cobb proposed a product for the top membrane ply that was constructed using polyester material. The Project Manual called for ply with fiberglass construction. Both are quality products, but the polyester material has a tendency to shrink, especially if it is installed incorrectly. Of the six other entities submitting a bid for the Project, all of them proposed use of Soprema products or materials that were deemed equal in quality. Cobb's bid was the only bidder whose proposed products were deemed insufficient. One other bidder was also rejected due to time frame issues. None of the other bidders filed a protest or challenged the final decision of the School Board. The School Board's stated rationale for rejection of Cobb's bid was that the generic description of Cobb's proposed building materials made it difficult, if not impossible, to ascertain whether they met the standards set forth in the Project Manual. This rationale is neither arbitrary nor capricious and is based on sound reasoning. Cobb's bid, although more generic than the School Board would have liked, was nonetheless a viable bid. Cobb would have been able to explain and make his bid more specific had he been given the opportunity. However, the School Board did not owe Cobb the right to alter, amend, or explain its bid more fully after the bid process was complete. To do so would give Cobb an inequitable advantage, vis-à-vis, the competing bidders. It is very likely that Cobb could effectively and professionally complete work on the Project. However, its bid was not exactly in accordance with the requirements of the Project Manual and was justifiably rejected in favor of Latite's bid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Hardee County School Board, upholding its award of the contract to Latite Roofing Company and denying the protest by Petitioner, L. Cobb Construction. DONE AND ENTERED this 30th day of March, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2011.
Findings Of Fact At all times material, the Respondent was licensed as a general contractor, holding license number CG C003564, qualifying WSCON Corporation. On or about September 27, 1990, the Respondent, acting on behalf of WSCON Corporation, entered into a contract with Emilio and Jennie Delgado to build an addition to the Delgado's residence at 13562 Southwest 286th Terrace, Miami, Florida, for a price of $12,756.00. On or about January 5, 1991, the parties to the contract agreed to a change order which increased the contract price by $1,248.00, to a total of $14,004.00. The Respondent obtained a building permit for the job from Dade County and the Respondent began work on the job about a month after signing the contract. The Delgados made payments to the Respondent pursuant to the contract in the total amount of $10,500.00. The final payment was due upon completion of the job. The Delgados never made the final payment because the Respondent never finished the job. After about September or October of 1991, the Respondent performed no further work under the contract. At that time, the Respondent had completed the majority of the work, but there was still some work that remained to be completed. 1/ The Respondent discontinued performing work called for by the contract because of financial problems he was having due to his not having received certain funds owed to him by Dade County. He offered to continue working on the job if the Delgados would advance him sums under the contract that were not yet due, but the Delgados refused to do so. The Delgados never discharged the Respondent. The Delgados completed the job themselves, paying a total of $6,046.21 to various suppliers of labor and materials other than the Respondent. 2/
Recommendation On the basis of all of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order in this case to the following effect: Dismissing the charges alleged in Counts II and III of the Administrative Complaint; Finding the Respondent guilty of a violation of Section 489.129(1)(k), Florida Statutes, as charged in Count I of the Administrative Complaint; and Imposing the following penalty: an administrative fine in the amount of one thousand dollars ($1,000.00) and a one year period of probation. DONE AND ENTERED this 23rd day of June 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June 1994.
The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (Department), is the state agency charged with the duty and responsibility of regulating the practice of contracting and electrical contracting pursuant to Chapters 20, 455 and 489, Florida Statutes. At all times material to the allegations of the Administrative Complaints, Antoney Manning was not licensed nor had he ever been licensed to engage in contracting as a State Registered or State Certified Contractor in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. At all times material to the allegations of the Administrative Complaints, Manning Builders did not hold a Certificate of Authority as a Contractor Qualified Business in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. Respondent, Antoney Manning, was at all times material to this proceeding, the owner/operator of Manning Builders. Respondent is in the business of framing which includes framing, drywall, tile, trim work, and painting. A document which is in evidence purports to be a contract dated September 5, 2004, between Manning Builders and Ms. Gwendolyn Parker, for the construction of a 14-foot by 14- foot addition in the rear corner of Ms. Parker's house located at 8496 Southern Park Drive in Tallahassee, Florida. The contract identifies Manning Builders as the "contractor." The contract price is $15,000. Unfortunately, only the first page of the contract is in evidence. However, Respondent acknowledges that he and Ms. Parker entered into a contract regarding the 14-foot by 14-foot addition to Ms. Parker's home. Respondent insists that he informed Ms. Parker that he was not a certified general contractor, but that he could find a general contractor for her. When that did not work out, Respondent told Ms. Parker that she would have to "pull" her own permits and that he could do the framing. He also told her that he would assist her in finding the appropriate contractors to do the electrical work, plumbing, and roofing. Ms. Parker did not testify at the hearing. On September 7, 2005, Respondent signed a receipt for $7,500 for a "deposit on addition (14 x 14)." The receipt identifies Ms. Gwendolyn Parker as the person from whom the money was received by Respondent. Respondent acknowledges finding an electrical contractor to perform the electrical work on the addition. However, he insists that he did not hire the electrical contractor but found one for Ms. Parker to hire. He gave the name to Ms. Parker but she apparently did not contact him. In any event, the electrical work was never done on the addition. Respondent completed the framework on the addition. Respondent did not build the roof, as he was aware that would require a roofing contractor. Work on the project ceased before the addition was finished. Ms. Parker's home suffered rain damage as a result of the roof not being completed. There is nothing in the record establishing the dollar amount of damage to her home. The total investigative costs to the Department, excluding costs associated with any attorney's time, was $360.59 regarding the allegations relating to Case No. 06- 0601, which charged Respondent with the unlicensed practice of contracting. The total investigative costs, excluding costs associated with any attorney's time, was $140.63 regarding the allegations relating to Case No. 06-0602, which charged Respondent with the unlicensed practice of electrical contracting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Business and Professional Regulation enter a final order imposing a fine of $1,000 for a violation of Section 489.127(1); requiring Respondent to pay $360.59 in costs of investigation and prosecution of DOAH Case No. 06-0601, and dismissing DOAH Case No. 06-0602. DONE AND ENTERED this 28th day of June, 2006, in Tallahassee, Leon County, Florida. S ___________________________________ BARBARA J. STAROS 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 28th day of June, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Antoney Manning 11865 Register Farm Road Tallahassee, Florida 32305 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact The Respondent, Charles H. Butler, Jr., was for all periods relevant to this case a certified building contractor with the State of Florida, holding license number CB CA13872. It is officially recognized that on September 17, 1987, the administrative complaint that is the subject of this case was filed against Charles H. Butler, Jr. It is further officially recognized that the administrative complaint charges the Respondent with only two violations: Exhibiting "financial mismanagement, misconduct, or diversion, in violation of 489.129(1)(h) and (m)." Failing "to properly supervise the finances on said job, in violation of 489.129(1)(m), (j); 489.119; 489.105(4)." In April, 1986, Charles H. Butler, Jr., entered into a contract with Albert R. Harrelson to construct a commercial building for $144,000. R. Ex. 20, P. Ex. 6. Article 1 of the contract provides that "this contract includes by reference the following: 1) contract agreement form, 2) specifications, 3) material lists, and 4) approved plans." (E.S.) Article 3 of the contract stated that the "required plans and engineering to obtain a building permit are provided by the owner at his cost." The specifications, material lists, and approved plans are not in evidence. Pursuant to Article 7 of the contract, there was to have been a draw schedule for payments. The parties never agreed to a draw schedule as a part of their contract. A large portion of the loan for the construction was provided by Sun Bank of Tampa Bay. Sun Bank established a draw schedule for disbursement of the loan to the contractor, Mr. Butler, as progress was made in construction. Mr. Butler was not consulted regarding this draw schedule, and had not agreed to it. Mr. Harrelson apparently did not either since he testified that he got a copy of the Bank's draw schedule several months after entering into the contract with Mr. Butler. It is concluded that the draw schedule used by the Bank was imposed by the Bank, and was not a part of the contract between Mr. Butler and Mr. Harrelson. Sun Bank hired Inspection Service, Inc., to conduct inspections of the progress of the construction and in that manner to verify that construction had been completed, stage by stage, to justify disbursement of installments under the draw schedule. Sun Bank required Mr. Harrelson to approve loan disbursements as disbursements were made. In reliance upon progress reports of its inspector and Mr. Harrelson, Sun Bank made a total of $107,000 in disbursements under the loan. P. Ex. 9. Sun Bank had disbursed about $88,000 of this amount by February or March, 1987. P. Ex. 9. The amount disbursed by Sun Bank was never intended to cover the entire cost of construction. Mr. Harrelson was required to come up with his own funds to meet the total contract price. Mr. Harrelson refused to make payments to Mr. Butler outside the draw schedule imposed by the Bank. Mr. Harrelson discharged Mr. Butler for alleged breach of contract in March, 1987. Mr. Harrelson testified at length concerning defects that he perceived in the construction of the project and resultant extra financial cost to himself. While Mr. Harrelson testified as to his perception of mistakes made by Mr. Butler, Mr. Harrelson's testimony did not clearly explain the exact scope of the contract. There is no evidence that Mr. Harrelson has any training in the construction of commercial buildings. Mr. Butler testified at length about the delays and inadequacies in receipt of payments under the draw schedule, as well as disagreements he had with Mr. Harrelson concerning what was required by the contract. From the testimony of Mr. Harrelson and Mr. Butler it is concluded that there were changes made in the original plans, changes made in the scope of the work, changes made during the construction due to problems encountered, and that these changes were by attempted oral agreement. For example, neither party could agree as to who was to submit plans, although the written contract clearly says that the owner is responsible. The plans were never placed in evidence. Mr. Butler insists that the contract had an addendum. R. Ex. 20. Mr. Harrelson was not recalled to confirm or deny this testimony, but the contract submitted by the Petitioner, P. Ex. 6, has no addendum. There was to have been a draw schedule, but none was ever agreed to by the parties. Thus, the testimony is too fragmented, confused, and unclear to make a finding as to the exact scope and schedule of the contract. There was no testimony by the person who made the progress inspections for Sun Bank. There was no testimony from any expert in the field of contracting. During the formal administrative hearing, the Petitioner sought to voluntarily dismiss the charge of diversion of funds. The dismissal was sought without prejudice to refiling that charge at another date. The basis of the motion was that the witness from Sun Bank of Tampa did not bring files to answer questions from counsel, and was unprepared to answer from memory. It appeared during the course of the examination of the witness that counsel was not familiar with the documents in the possession of the witness, and that the witness was not prepared to present evidence. The motion was denied.
Recommendation It is therefore recommended that the Department of professional Regulation, Construction Industry Licensing Board, enter its final order dismissing the administrative complaint against Charles H. Butler, Jr. DONE and RECOMMENDED this 23rd day of March, 1988, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. 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 23rd day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5041 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used correspond to the numbered and unnumbered paragraphs and sentences in the findings of fact proposed by the Petitioner. (All paragraphs after paragraph 3 have been deemed to be numbered sequentially thereafter.) Findings of fact proposed by the Petitioner: 3. The first sentence is subordinate to findings of fact that have been adopted. It is true, however, and is adopted by reference. Since the entire contract was never proven by clear and convincing evidence, the relevance of this proposed finding of fact is unknown. It is impossible to conclude that the Respondent caused a "self made deficit of $25,000" since the contract itself was never proven by clear and convincing evidence. The administrative complaint did not charge Mr. Butler with failure to supervise the construction of the building. It charged him with financial mismanagement and failure to supervise finances. Moreover, the relevance of evidence concerning Mr. Butler's presence on the job site was never tied into the charge of financial mismanagement. No finding can be made on this record as to the percentage of completion on any date since the contract was never proven. With respect to the remainder of this proposed finding (the list of construction defects), the administrative complaint did not charge Mr. Butler with incompetence in the construction of the building. It charged him with financial mismanagement and failure to supervise finances. Since the entire contract, including changes and alleged defects, was never proven by clear and convincing evidence, it is impossible to conclude that Mr. Harrelson paid more than the contract price. The last two sentences are not relevant to the charge of financial mismanagement. The first sentence is not supported by the evidence. With respect to the next sentence of this proposed finding (the list of construction defects), the administrative complaint did not charge Mr. Butler with incompetence in the construction of the building. It charged him with financial mismanagement and failure to supervise finances. The last sentence is true, and adopted by reference. Since the entire contract was never proven by clear and convincing evidence, the relevance of this proposed finding of fact is unknown. No finding can be made on this record as to the percentage of completion on any date since the contract was never proven. Findings of fact proposed by the Respondent: None. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Charles H. Butler, Jr., Pro Se 8917 Maislin Drive Tampa, Florida 33610 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Tom GallagherSecretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner is a corporation organized under the laws of Florida with its principal place of business in Tampa, Florida. It was formed in October, 1973 and is in the business of building bridges throughout west/central Florida. It is an independent construction company which specializes solely in bridge and fender construction. Its business relies solely on contracts from public authorities, especially the Respondent herein. On March 19, 1984, in the United States District Court, Northern District of Florida, Petitioner and its president, Gerald H. Stanley were convicted of violating Title 15, United States Code, Section 1 of the Sherman Antitrust Act, for participating in a conspiracy to rig bids by DOT on June 27, 1979. Petitioner was fined $50,000.00 and Mr. Stanley was fined $20,000.00, ordered to perform 200 hours of community service and placed on three years unsupervised probation. Petitioner did not renew its Certificate of Qualification to bid on Florida bridge projects when it expired on or about April 30, 1984. However, on June 12, 1984, both Petitioner and Mr. Stanley filed a Petition for a determination that they are eligible to apply for and hold a Certificate of Qualification under the provision of Section 337.165(2)(d), Florida Statutes, alleging such reapplication to be in the public interest. Marine Structures, Inc. adopted a formal, written antitrust compliance policy in July, 1984, and the record fails to show any instance of bid rigging or antitrust involvement since the one incident in June, 1979. Because of the limited number of companies involved in the road and bridge construction business, the existing companies, who were formerly involved in bidding misconduct, must, of necessity, deal with each other, but there is no indication or reason to assume that such necessary dealings will result in future misconduct. In addition to the written antitrust compliance policy referenced above, Marine has also taken remedial action to assure that all of its employees conduct their business activities in strict compliance with the law and the rules and regulations of both the state and federal governments. Due to Marine's inability to bid on DOT contracts, it has suffered and continues to suffer extreme financial hardship. In its past dealings with DOT, it has performed quality work and has cooperated fully with the Department. DOT indicates it has not been made aware of any particular circumstances involving Marine's or Mr. Stanley's participation in the instant bid rigging incident which would make that incident any more detrimental to DOT than any of the bid rigging conspiracies by the 26 other companies which have been reinstated by the Department. These 26 companies which have been reinstated, submitted themselves to DOT's independent investigations and agreed to comply with the safeguards required in their individual cases to help to assure that contract crimes would not occur on Department projects. Mr. Stanley, on behalf of Marine Structures, Inc., has offered the same assurances. In a letter dated May 1, 1985, to the Secretary, Department of Transportation, the Honorable Jim Smith, Attorney General of the State of Florida, indicated that though Respondent has, in a confidential sworn statement to attorneys for the State, denied any involvement in bid rigging activities other than in connection with that of which he was convicted in federal court, the State investigation, in the opinion of the Attorney General, raises substantial doubt as to the truth of Mr. Stanley's denials of misconduct. The Attorney General indicates that in an effort to resolve this apparent inconsistency, Mr. Stanley was asked, through his counsel, to take a polygraph examination which he refused. Mr. Stanley denies having refused to take the polygraph at any time. Further, the Attorney General relates that Marine Structures, Inc. has not offered to pay any amount of damages to the State, yet Mr. Stanley contends that he has never, to this day, been asked to make any reimbursement or restitution to the State. Mr. Stanley, on behalf of the Petitioner, does not deny that he committed error and that this error constituted an offense against the state and federal governments. He tells a story, however, regarding it which puts it in a somewhat less serious light than is described by the State. According to Mr. Stanley, he gave a bid figure to two other contractors, who he had previously asked to subcontract in his bid, over which they should bid in order to assure Petitioner of having the lowest bid of the three on this particular contract. Both other contractors, Mr. Carroll and Mr. Conner, submitted bids which were higher than that of Petitioner as did a four potential contractor, Square G, and notwithstanding this, Petitioner's bid was lower than the State estimate. In light of this factor he contends that his misconduct, while technically a violation for which he was tried and convicted, did not cost the State one extra cent. He regrets having done it and would not do it again. Both Carroll and Conner, the two other contractors involved with Petitioner in this incident, pleaded guilty and were convicted, but both have been reinstated as eligible bidders on State work. As to the letter of the Attorney General, Mr. Stanley contends that the comment regarding his veracity relates to a situation involving his testimony before the Attorney General's staff about the Citrus County project. Though he had been advised he would be asked about that specific project, in reality, the questions he was asked related to a different project in Alachua County on which he had bid but which involved no bid rigging on his part. Mr. Stanley contends he told his interrogators what he knew but they were not satisfied as to his knowledge regarding another bidder by the name of Hewitt. His denials of any knowledge of Hewitt's bid were not believed and Mr. Stanley feels he was somewhat threatened by members of the Attorney General's staff who reportedly indicated they would keep him off the bidder's list for some time and would "break" him. He contends that he has cooperated fully with state and federal prosecutors not only because of his desire to be reinstated, but also because the terms of his federal probation require him to cooperate fully. He has, in fact, met with state and federal attorneys on two occasions without being subpoenaed, has made his records available to investigative authorities, and has made copies of any documents desired by the investigators. Other than the one incident involved herein, Mr. Stanley contends that neither he nor his company have ever been involved in any other bid rigging situation. He has given statements to both the Florida Attorney General's office and the Antitrust Division on many occasions other than those referenced in the paragraph above. He has given testimony to a U.S. grand jury and the documents and files which he released to the investigative agencies were released prior to his being granted any immunity from State prosecution by the Attorney General. In short he has cooperated fully with state and federal authorities without holding back any information and will continue to do so even if he is reinstated. He feels, therefore, that it is unnecessary for his reinstatement to be withheld as a threat over his head to coerce testimony from him regarding Mr. Hewitt. Admittedly, neither his personal fine nor that assessed against the company have been paid. He has not, however, been dunned for payment and this is just as well because having been barred from bidding on State business, he is finding it difficult to meet his monthly bills much less pay $70,000.00 in fines. As to the purpose behind the State's manner of handling those companies identified as being involved in bid rigging, the Attorney General very clearly established the action philosophy in a statement made to Florida Trend Magazine on May 29, 1984. In the press release in question he stated: "If we forced these companies into bankruptcy we would not be cleaning up the industry, we'd be abolishing it, putting thousands of employees on the streets and destroying competition in a multi-million dollar industry in which the State is a major purchaser . . . . By obtaining the cooperation of settling defendants we greatly facilitated botch the investigation and the willingness of subsequent defendant to . . . (settle)." Respondent has not shown by any evidence that Petitioner was any worse in its misconduct than any other bidder which has already been reinstated, nor has it exhibited any justification for treating Petitioner more harshly than others.
