The Issue The issues in this cause are presented through a bid protest filed by Hobbs Construction questioning the notice of the Florida Department of Transportation which rejected all bids on State Project No. 49010-3543, Franklin County, Florida, in which Hobbs was the apparent low bidder. In particular, Hobbs challenges the rejection of its bid, wherein the Department has claimed that Hobbs has failed to meet the Disadvantaged Business Enterprise contract requirements.
Findings Of Fact On June 14, 1984, Hobbs Construction and Development, Inc., submitted an application for recognition by the State of Florida, Department of Transportation, to perform work for the department in an additional work class for which Hobbs had not previously qualified. On June 22, 1984, this request for qualification was approved as evidenced by the correspondence of that date from J. Ted Barefield, Chief of Bureau of Contracts Administration, Department of Transportation, addressed to Hobbs. A copy of that correspondence may be found as Petitioner's exhibit number two admitted into evidence. The Notice of Qualification was received by Hobbs on June 26, 1984. Having been recognized in the new classification, Hobbs was entitled to qualify as a bidder on Budget Item 3112655, which is also known as State Project No. 49010-3543, Franklin County, Florida. (Prior to the new classification or qualification of Hobbs, Hobbs was entitled to purchase the plans for the aforementioned job, but was not entitled to receive the actual bidding documents [specifications] related to the job.) On June 26, 1984, the date that Hobbs was informed of its qualification to pursue the subject job in Franklin County, it obtained the bid packet, job specifications, from the Department of Transportation. Even before qualification, Hobbs being interested in the Franklin County job made attempts on June 21, 1984, to contact Disadvantaged Business Enterprise subcontractors, known as DBE subcontractors, realizing that the contract called for participation by a DBE subcontractor(s). Glen Powell Contracting, Inc., Lynnhaven, Florida, and Bryan L. Therman Contractors, Inc., of Chipley, Florida, were among the DBE subcontractors which Petitioner was interested in and attempted to contact. It was contemplated that those contractors would perform the installation of rip rap which constituted a high percentage of the project work. Oglesby and Hugg, a DBE subcontractor, was also contacted about installation of rip rap and indicated that they were not interested in the project. The contact with Therman was by talking to someone in hips office, leaving a message for Therman to call the Hobbs representative. The Therman group did not make a return call. Glen Powell and another official within the Glen Powell corporation, reviewed the project with officials of Hobbs' Construction Company and indicated that Powell would not be able to give a quote for the subcontracting rip rap work given the nearness of the time to submit the bid. Powell had been reached on June 25, 1984, and made the assessment of the bid materials on June 26, 1984, at which point he declined to give a price quote for the subcontracting rip rap work. Several DBE grassing subcontractors were also contacted by Hobbs and declined to perform work given the location of the project and the small amount of grassing to be installed. When the bid was submitted by Hobbs, the only DBE subcontractor that was listed was Black Olive Nursery and Landscaping of 21053 N.W. 37th Court, Miami, Florida. That class of work was landscaping in the amount of 9,599.30, which is approximately .6 percent of the Hobbs bid proposal in the amount of $1,585,170.30. Hobbs submitted the bid on the Franklin County project in time to meet the June 27, 1984, bid opening. When the bids were opened, Hobbs bid reported above was the apparent low bid for the project. As was the custom of the Department of Transportation, its Contracts Awards Committee met to determine the acceptability of the bids for the Franklin County project and to decide whether to go forward with the project in the face of the bids offered. At that time, the committee being of the belief that Hobbs and the second low bidder both failed to meet DBE participation requirements of the contract and being persuaded of the need to modify the plans and revise the specifications related to the installation of rip rap it was decided to reject all bids. That decision was by unanimous vote of the Contracts Award Committee of the Department of Transportation and this advice was accepted by the agency head. A copy of the minutes of that committee, which reflects the decision of the committee, may be found as Department's exhibit number two. On July 24, 1984, Hobbs was noticed of the Department's intent to reject all bids for reason that the Department desired to revise the plans and specifications and in view of the fact that, according to the Department, Hobbs had failed to meet the DBE contract requirements. A copy of this Notice of Bid Rejection may be found as Petitioner's exhibit number one admitted into evidence. That notice affords an opportunity for Hobbs to challenge the bid rejection through request for a Chapter 120, Florida Statutes hearing. Hobbs timely availed itself of that opportunity leading to the formal hearing which is the subject of this recommended order. To meet the DOE requirements of the contract, it was necessary for Hobbs to designate 2 percent of the contract amount for DOE subcontractor participation. In the alternative, if Hobbs was unable to achieve that goal, it was necessary for Hobbs to provide sufficient information to show that it had made a good faith effort to meet the goal. The issues joined in this case concern whether Hobbs timely provided its explanation of its good faith efforts to obtain DBE participation in the project and if that explanation was provided in a timely fashion, whether it was sufficient information to demonstrate good faith compliance. Within the specifications, a copy of which is found as joint exhibit number one, there are found Supplemental Special Provisions dating from May 31, 1984. Subarticles 2-5.3.2 and 2-5.3.3, deal with the question of DBE participation and the need to submit good faith efforts. The language of those provisions is as follows: 2-5.3.2 Submittals for Contracts with Goals: For all contracts for which DBE and/or WBE contract goals have been established, each contractor shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE and WBE participation information shall be submitted with the Contractors bid proposal. Award of the Contract shall be conditioned upon submission of the DBE and WBE participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. The Contractors bid submission shall include the following information (Submitted on Form No. 141-12 - DBE/WBE Utilization Form No. 1): The names and addresses of certified DBE and WBE firms that will participate in the contract. Only DBEs and WBEs certified by the Department at the time the bid is submitted may be counted toward DBE and WBE goals. A description of the work each named DBE and WBE firm will perform. The dollar amount of participation by each named DBE and WBE firm. 2-5.3.3 Submittals for Evaluating Good Faith- Efforts: If the DBE or WBE goal is not met, sufficient information to demonstrate that the Contractor made good faith efforts to meet the goals shall be submitted. In evaluating a contractor's good faith efforts, the Department will consider: Whether the Contractor, at least seven days prior to the letting, provided written notice by certified mail, return receipt requested, or hand delivery, with receipt, to all certified DBEs and WBEs which perform the type of work which the Contractor intends to subcontract, advising the DBEs and WBEs (a) of the specific work the Contractor intends to subcontract; (b) that their interest in the contract is being solicited; and (c) how to obtain information about and review and inspect the contract plans and specifications. Whether the Contractor selected economically feasible portions of the work to be performed by DBEs or WBEs, including where appropriate, breaking down contracts or combining elements of work into economically feasible units. The ability of a contractor to perform the work with its own work force will not in itself excuse a contractor's failure to meet contract goals. Whether the Contractor provided interested DBEs or WBEs assistance in reviewing the contract plans and specifica- tions. Whether the DBE or WBE goal was met by other bidders. Whether the Contractor submits all quotations received from DBEs or WBEs, and for those quotations not accepted, an explanation of why the DBE or WBE will not be used during the course of the contract. Receipt of a lower quotation from a non-DBE or non-WBE will not in itself excuse a contractor's failure to meet contract goals; provided, however, a contractor's good faith efforts obligation does not require a contractor to accept a quotation from a DBE or WBE which exceeds the lowest quotation received from any subcontractor by more than one percent. Whether the contractor assisted interested DBEs and WBEs in obtaining any required bonding, lines of credit, or insurance. Whether the contractor elected to subcontract types of work that match the capabilities of solicited DBEs or WBEs. Whether the Contractor's efforts were merely pro forma and given all relevant circumstances, could not reasonably be expected to produce sufficient DBE and WBE participation to meet the goals. Whether the Contractor has on other contracts within the past six months utilized DBEs and WBEs. The above list is not intended to be exclusive or exhaustive and the Department will look not only at the different kinds of efforts that the Contractor has made but also the quality, quantity, and intensity of these efforts. These provisions are under the general heading of Preparation of Proposals related to Articles 2 through 5. Subarticle 2-5.3.2 indicates that the bidder shall establish its participation information related to DBE subcontractor with the bid proposal or if the goals are not met, demonstrate that good faith efforts were made to meet the goals. The contract is awarded upon condition that the DBE participation goals are met, or upon establishing that good faith efforts were made to meet the goals and that the goals were not attainable. The form known as the DBE Utilization Form No. 1 was provided in this instance. It contemplates information as to success in meeting the DBE goals. A copy of that form may be found as part of the joint exhibit one. It contains no specific place to explain the good faith efforts that were made by the Petitioner to achieve those goals, in view of the Petitioner's lack of success in meeting the goals and Hobbs didn't submit good bid information with its bid. The bid was also submitted under the ausnices of Rule 14-78.03, Florida Administrative Code (May 1984). The first effort which Hobbs made at describing his alleged good faith efforts to employ the assistance of DBEs came on August 29, 1984, in correspondence of its project manager. This correspondence is found as State of Florida, Department of Transportation's exhibit number three and is correspondence directed to another official within Hobbs Construction. This statement of efforts to obtain minority or DBE participation in the project was along the lines of testimony given in the course of the hearing. No information, related to compliance, was given to the Department of Transportation prior to its notice of intent to reject the bid of July 24, 1984. Having no obligation to request that information from Hobbs, the Department of Transportation did not attempt to stir Hobbs into action on the issue of indication of good faith, prior to its notice of intent to reject Hobbs bid. Hobbs' explanation was eventually advanced ate the final hearing. Factually, even if one were to assume that the Petitioner could submit its prebid letting efforts at good faith compliance with the DBE goals, at a time beyond the filing of its bid proposal, the efforts do not comport with the concept of good faith as described in Subarticle 2-5.3.3 of the bid proposal and Section 14-78.03, (2)(b) 4.b., Florida Administrative Code related to an assessment of the efforts at good faith compliance. In this sense, Hobbs failed to afford sufficient time for DBE subcontractors to provide responses to the opportunity to offer quotations for the subcontracted work. The Subarticle and Rule contemplate seven days notice prior to the bid letting. The contracts made by the Petitioner were less than seven days prior to the letting of June 27, 1984. This left the one subcontractor who expressed some interest in the project, Powell, inadequate time to offer its price quote. Petitioner tries to explain its position on the question of the timeliness of its attempt by stating that it only became qualified five days before the bid letting and was only informed of that qualification one day before th opening. Given the fact that the Petitioner made application for such qualification on June 14, 1984, only thirteen days before the bid letting, its tardiness did not leave adequate time to afford potential DBE subcontractors the opportunity to respond to the work opportunity envisioned in this project. Finally, given the close proximity in time between the efforts of the Petitioner to seek DBE participation and the bid letting date and the problem related to the Petitioner's late expression of an interest in qualification for this class of job, Petitioner cannot be said to have offered much in the way of quality and intensity in the efforts to enlist DBE subcontractors for this project, as envisioned by the Subarticle and Rule provisions describing good faith efforts at compliance.
Findings Of Fact At some point in late 1984 or early 1985, Respondent, DOT, solicited bids for its Project Number 77030-3510 to be accomplished in Seminole County, Florida. Three bids were submitted. The bid by Petitioner, Macasphalt, was in the amount of $186,367.05. The two other bidders were Martin Paving Company, whose bid was for $196,391.99 and Orlando Paving whose bid was in the amount of $213,054.56. Petitioner's bid was the lowest by approximately $10,000.00. This particular project required the contractors to meet certain goals in the area of Disadvantaged Business Enterprises (DBE) and Women-Owned Business Enterprises (WBE). The goals for this project were 7% for DBE and 3.05% for WBE. In its bid, Macasphalt showed that it would award 20.14% of the contract to DBE's but only 2.01% of the contract to WBE's. Martin Paving Company, on the other hand, whose bid was approximately $10,000.00 higher, indicated that it would award 19.19% of the contract to DBE's and 3.04% of the contract to WBE's. Orlando Paving, which was the highest bidder, showed 2.4% WBE. As a result of the fact that Petitioner failed to achieve 3% WBE, whereas the second lowest bidder exceeded the 3% WBE goal, Respondent declared Petitioner's bid nonresponsive for failure to meet the WBE goal and recommended award of the contract to the second lowest bidder, Martin Paving, even though Martin's bid was approximately $10,000.00 higher. The goals set by DOT must be met at the time of letting of the contract. If a contractor cannot meet these goals, he must submit satisfactory evidence of his good faith efforts to meet them in order to be considered responsive. In regard to the goals, DOT issues a monthly list of certified DBE/WBE contractors listed by the type of work they are qualified to do and the geographical area in which they operate. According to Mr. LaLonde, Macasphalt routinely sent out letters to a majority of the subcontractors they feel could do the work generally and a follow-up letter is sent monthly to those subcontractors who do the type of work needed in a particular contract. These letters are sent monthly because Macasphalt bids frequently on DOT contracts and bid lettings are done on a monthly basis. This procedure gives, they feel, DBE's and WBE's information on jobs on which the Petitioner is bidding and keeps them informed. In the instant case, to solicit WBE's, on January 9, 1985 Petitioner sent out letters by certified mail to 47 DBE/WBE's requesting bids on several projects including the one in question here and naming areas in which it anticipated issuing subcontracts. Items to be subcontracted on the instant project included. barricades and signs guard rails landscaping painting and striping trucking, and concrete. No solicitation was made of DBE/WBE's for quotes on asphalt work because that is Petitioner's prime business and it is, in the opinion of its officers, not feasible to subcontract work they do themselves. When it became obvious that Petitioner could not achieve the 3.05% WBE goal, Petitioner, pursuant to the terms of the contract documents, submitted a summary of its good faith efforts to achieve the WBE goals with the contract bid. The Petitioner's summary of good faith effort includes a "remarks" sheet on which the following comments exclusively are made: "We have exceeded DBE goal with a total of 20.14%. However, have only attained 2.01% FBE goal. All subcontract items except guardrail were reflected in DBE or FBE quotes received. No DBE or FBE quote was received for guardrail item." In addition, Petitioner submitted a form letter entitled, "Good Faith Efforts" apparently used in numerous contracts, which requires only the insertion of two numbers and two dates and copies of two different letters in blank sent to subcontractors on apparently a routine basis. In addition to the above, Petitioner submitted two copies of DOT's DBE/WBE Directory, one dated September, 1984 and the other dated January, 1985 in which various subcontractors are identified with check marks, the explanation for which is contained in the form letter referenced above. No explanation was made as to why some WBE's were not solicited. Upon receipt of Petitioner's bid with the good faith explanation included, it was submitted to Respondent's Good Faith Efforts Review Committee. This committee deals only with an analysis of the good faith efforts made by bidders. It has been in operation since its creation in August, 1984 and applies the standards established in Rule 14-78, F.A.C. Here, the committee evaluated Petitioner's good faith effort as outlined in the material submitted with the bid and, based on Petitioner's submission, concluded that Petitioner was non-responsive because its good faith efforts, as documented, were insufficient. The committee based its conclusion on the following considerations: Petitioner did not meet the seven day requirement for notice by certified mail. The sample letter indicated "certified mail" but no copies of receipt showing it was sent by certified mail or to whom it was sent by certified mail were included. All potential subcontractors (WBE's) were not contacted. The ability of the contractor to do the work himself "asphalt) will not justify failing to achieve the goal. Whether or not other bidders met the goal. The remarks sheet was inaccurate and inadequate. The explanation about failing to solicit from those subcontractors who did not do business in Seminole County is inconsistent. Some were solicited and some were not. One contractor (Fran) who operates in three categories and who works statewide, was not solicited by the Petitioner in any category. The criteria as set forth in Rule 14-78 are not exclusive or necessarily determinative. There is no specific definition of good faith efforts. The committee is given the latitude to make a judgment measure of the bidder's efforts opposed to the criteria set forth in the rule. Mr. Pitchford, Chairman of the committee, indicated that after the committee had been in operation for a while, the approach taken toward looking at the criteria set forth in the rule was more strictly and severely applied. No notice of this change in approach was set to any bidder, however Petitioner contends that this was misleading and that it submitted them on a previous successful demonstration of good faith efforts. In October, 1984 it submitted a bid on a contract which did not meet the DBE goal. Nonetheless, the evidence of good faith which it submitted at that time was not questioned and Petitioner was awarded the contract. This good faith information was the same kind of information as submitted here which was considered inadequate. No documentation to support any of this was forthcoming, however. Since each case must be taken and considered on its own merits, even if true, this is not necessarily inconsistent. Petitioner readily admits that it did not submit requests for bids to al; DBE/WBE subcontractors in the directory. However, it does claim that for the most part, it submitted solicitations to every WBE listed in the directory that worked in the specialty needed and in the geographical area of the project. Petitioner defends its exclusion of potential subcontractors on the basis that, for example, they had no experience with those subcontractors and were not familiar with them. In most cases, Petitioner left out companies that were not known to it. Mr. LaLonde could not be sure whether Petitioner solicited any potential subcontractor not solicited by Petitioner previously. He is certain, however, that Petitioner did solicit all subcontractors on the list who had been solicited previously. In any event, it is important to the Petitioner to know the subcontractors and how they perform because Petitioner, as the prime contractor, is responsible for the work whether it or its subcontractor accomplishes it. It is for this reason, the lack of familiarity with a subcontractor and its performance, that it did not solicit some WBE's which operate statewide. Petitioner has used many WBE's before and has never failed, it claims, to meet WBE goals prior to this occasion. It has previously failed to meet DBE goals, however, but still was awarded the contract if it was the low bidder. It is apparent, then, that if the above is true, Petitioner's demonstrated good faith efforts were considered satisfactory on those occasions. Based on that experience, Petitioner felt that the procedures used here which it claims had previously been demonstrated to be satisfactory, were again sufficient. It is significant to note that while the fact of the bid submissions reflects a difference of approximately $10,000.00 between Petitioner's bid and that submitted by the next lowest bidder, a computer analysis run on this solicitation reflects a different figure. On the computer analysis, Martin Paving's bid is listed at slightly over $203,000.00 as opposed to the bid face of slightly over $196,000.00. If the $203,000.00 figure is used, the 3.05% goal would not be met. This discrepancy was explained by Mr. Haverty who indicated that the initial figure submitted by the contractor on the bid form is used to assess whether the DBE/WBE goals are met. The issue of good faith effort is raised at a later date. Where, as here, it is determined that the original price is in error and the actual price means that the bidder has failed to meet the goal, if the error is less than 10%, the bid may still be considered responsive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Petitioner's bid on State Project Number 77030-3510, in Seminole County, Florida, be rejected as non-responsive for failure to meet the WBE goal. RECOMMENDED in Tallahassee, Florida this 20th day of June, 1985. ARNOLD H. POLLOCK 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 Administrative Hearings this 20th day of June, 1985. COPIES FURNISHED: William B. Miller, Esquire Tower Place, Suite 600 3340 Peachtree Road, N.E. Atlanta, GA 30326 Larry D. Scott Staff Attorney Department of Transportation 605 Suwannee Street Tallahassee, FL 32301 Paul A. Pappas Secretary Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32301
The Issue The issue presented is whether Petitioner is the lowest, responsive bidder on Board of Regents' Project BR-787.
Findings Of Fact A Call for Bids was issued by the Respondent Board of Regents (hereinafter "Board") for Project BR-787 for the expansion and renovation of the University of West Florida Library. The Call for Bids provides that at least 15 percent of the project contract amount must be expended with Minority Business Enterprises (hereinafter "MBEs") certified by the Department of General Services (now known as the Department of Management Services) as set forth under the Florida Small and Minority Business Assistance Act, Chapter 287, Florida Statutes. That document further provides that if the 15 percent minority participation is not obtained, the Board would require the apparent low bidder to provide evidence of its good faith efforts to meet that goal. Lastly, that document advises potential bidders to review the requirements for MBE participation in the Special Conditions in order to schedule the necessary tasks to accomplish such good faith efforts. The Project Manual, Volumes 1 and 2, contains the bidding requirements, including the general and special conditions, specifying the good faith effort requirements applicable to all bidders. The Project Manual, Instructions to Bidders, provides that the award of the contract is subject to the demonstration of good faith efforts by any bidder whose bid proposes less than 15 percent participation in the contract by MBEs. The required good faith effort to be demonstrated is set forth in the Special Conditions. That section further provides that the contract will be awarded by the Board to the lowest qualified and responsible bidder, provided the bid is reasonable and is in the best interest of the Board to accept it. The Project Manual, Special Conditions, provides that if the bid does not contain the required 15 percent participation by certified MBEs, then the apparent low bidder will be required to provide evidence of good faith efforts within two working days after the opening of bids. It further provides that incomplete evidence not fully supporting each of the eight requirements of Paragraph 1.7 of the Special Conditions shall constitute cause for determining the bid to be unresponsive, except that the Board may, at its option, seek supplementary evidence not submitted by the bidder. Special Conditions 1.7.1 through 1.7.8 of the Project Manual contain eight factors relating to the bidders' obligations to make and document a good faith effort to meet the MBE goal. The factors listed to be considered by the Board are an almost verbatim recitation of the eight factors listed in Section 287.0945(3)(b), Florida Statutes. Leonard Monks, Chair of the University of West Florida's MBE Advisory Committee conducted a pre-bid/pre-solicitation meeting for Project BR-787 on December 7, 1992. Among other things, he discussed the MBE participation program and handed out a packet of materials to those in attendance at the pre- bid meeting. That packet included a General Instructions sheet regarding the University's MBE Advisory Committee and the requirement that the MBEs utilized must be certified. That Instruction sheet further advised that a listing of all known certified sources was available from the University's Purchasing Office, the office of which Monks was the Director. Attached to that General Instructions sheet were a sample checklist to be used by the University's MBE Advisory Committee in evaluating a bidder's good faith efforts and a separate multi-page document entitled Florida Department of Management Services Certified Minority Business Enterprises. In response to a question from one of the attendees, the potential bidders were informed that the list referenced in the General Instructions was the same list provided in the packet distributed at the meeting. Both Joseph Dusek and Ed Hewes attended the pre-bid/pre-solicitation meeting on behalf of Petitioner Opus South Corporation (hereinafter "Opus"). Both of them understood that the list handed out during that meeting contained both the certified MBEs and the community and minority organizations which they were expected to contact. Their review of that list revealed not only MBEs, some of whom were known to them to be MBEs, but also businesses whose names suggested they were minority organizations. For example, the list contained a business called Minority Business Consultants & Contractors, Inc., and a business called Minority Specialty Services, Inc. When they reviewed the list in more detail after this dispute arose, they realized that those businesses with names sounding like minority business assistance organizations were simply MBEs. After the meeting, Dusek and Hewes divided between them the work to be performed in submitting a bid for the project. Dusek took primary responsibility for preparing Opus' estimate of the cost involved, and Hewes took primary responsibility for MBE compliance and good faith effort documentation. Opus did not contact Monk's office for any additional information subsequent to the pre-bid meeting and prior to the time of bid opening since Opus did not know that Monk's office had additional information it had not provided to Opus. In addition to placing a newspaper ad and taking other steps to comply with the good faith effort requirement, Opus sent initial letters to all of the businesses on the list provided to it at the pre-bid conference. That initial solicitation letter was sent by Opus to 72 certified MBEs. As a result of that initial letter, Opus received bids, indications of interest, and advice from several of those businesses that the businesses were not interested in bidding the project. When Opus sent its follow-up solicitation letter, it did not send a follow-up letter to 3 of the 72 businesses which had specifically advised Opus they were not interested in bidding the project. Accordingly, Opus only sent follow-up solicitation letters to 69 certified MBEs. As a result of Opus' erroneous assumption that the list of certified MBEs provided at the pre-bid conference also included minority community organizations, Opus did not send copies of the information provided to certified MBEs to any minority community organizations providing assistance to MBEs. On December 22, 1992, Opus, Intervenor Greenhut Construction Company, Inc. (hereinafter "Greenhut"), and 6 other contractors submitted bids on Project BR-787. All eight bids for BR-787 came in below the Board's budget for the project. None of the eight bids submitted for the project contained any MBE involvement. Opus was the apparent low bidder. Opus' bid was $5,959,100, and the next lowest bid was from Greenhut, in the amount of $6,010,000. Since the bid submitted by Opus did not contain the required certified MBE participation of 15 percent, the Board requested Opus to submit documentation to demonstrate its good faith effort in obtaining MBE participation. Opus submitted its initial good faith documentation package on December 23, 1992, and later supplemented that good faith effort package with additional documentation. Paragraph 1.7 of the Special Conditions of the bid documents sets out the good faith requirements for the project and itemizes the requirements of the Board as to what documentation would provide evidence of satisfaction of the eight factors to be considered in evaluating the good faith efforts of a bidder. Subparagraphs 1.7.4 and 1.7.8 cite to the specific statutory factors and provide as follows: 1.7.4 Statute 287.0945(3)(b)4 STATUTORY REQUIREMENTS: Whether the contractor followed up initial solicitations of interest by contacting minority business enterprises or minority persons to determine with certainty whether the minority business enterprises or minority persons were interested; IMPLEMENTATION REQUIRED BY THE STATE UNIVERSITY SYSTEM: The Bidder shall make no less than one written follow-up contact per initial contact. In the event a positive response is obtained, the Bidder shall request, in writing, a meeting between MBE and the Bidder's staff. DOCUMENTATION REQUIRED: Copy of letters, telegrams, and/or meeting notes required as evidence. * * * 1.7.8 Statute 287.0945(3)(b)8: STATUTORY REQUIREMENTS: Whether the contractor effectively used the services of available minority community organizations; minority contractors' groups; local, state, and federal minority business assistance offices; and other organizations that provide assistance in the recruitment and placement of minority business enterprises or minority persons. IMPLEMENTATION REQUIRED BY STATE UNIVERSITY SYSTEM: Did the Bidder send copies of the information provided under Subparagraphs 1.7.2 and 1.7.3 to the organizations, groups, and offices listed in 1.7.8.1. DOCUMENTATION REQUIRED: Copies of information sent to such organizations, groups, and offices, at least one week prior to bid date required as evidence. Opus' transmittal letter of its good faith efforts package outlines the documentation being submitted. The letter does not mention any contact with minority community or business assistance organizations. Monks, the Chair of the University's MBE Advisory Committee, contacted Hewes and inquired about the absence of documentation for organization contact. Hewes advised Monks that minority organizations had been contacted based on the fact that Opus had contacted every organization on the list given it by Monks. Monks then advised Hewes that there were other organizations that were supposed to be contacted that were not on that list but rather were on a different list that had been available in his office but that had not been provided to all of the bidders at the pre-bid meeting. The list, however, had been provided to some of the other bidders who had specifically called and asked for it prior to submission of the bids. The existence of that separate list was not disclosed to all of the bidders who attended the pre-bid meeting. Monks sent to Opus by FAX transmission the list which had been given to only some of the bidders. That list contains the names of nine "area advertisers," a category not relevant to this proceeding since Opus did place an advertisement as part of its good faith efforts. The list also contains eight names under the heading "area business and community organizations." Included within those eight are the Dodge Reports, the Northwest Florida Chapter of the Associated General Contractors of America, and the Small Business Development Center. The Small Business Development Center is an entity which is part of the University of West Florida. "Pete" Singletary is the Director of the University of West Florida's Small Business Development Center. He attended the pre-bid meeting and therefore knew who the bidders were who attended that meeting and knew of the opportunity for certified MBEs to participate in the bid for the project. He is also on the University's MBE Advisory Committee. Accordingly, the Small Business Development Center was aware that bids were being solicited for the library expansion/renovation project. Upon receiving a copy of the second list, by letter dated December 29, 1992, Hewes advised Monks that Opus had in fact contacted Dodge Reports and enclosed a copy of the documentation reflecting that to be true. Hewes also advised Monks that contact had been made with Associated General Contractors. In fact, Joseph Dusek of Opus is the vice president and sits on the board of directors of that organization. Written notice was not, however, submitted to that organization by Opus. The University's MBE Advisory Committee met on December 30, 1992, and reviewed Opus' good faith efforts documentation. The Committee members used a checklist which was not a part of the bid documents but which had been provided at the pre-bid meeting. In essence, the checklist contains a synopsis of the eight factors to be considered, as set forth by statute and in Special Condition 1.7, and a yes/no column to be marked. The checklist itself required that all questions be marked "yes" in order to declare the apparent low bidder responsive, a requirement not found in the statute. The three members of the Advisory Committee checked the yes columns for the items on the checklist except one. The seventh item on the checklist provides as follows: "Did the apparent low bidder provide copies of information to minority committee organizations and to minority contractor groups at least one week prior to bid opening." Each of the committee members answered that question, not by checking yes or no for that item, but rather by commenting that although Opus had not contacted minority organizations, Opus had in substance made a good faith effort because Opus had contacted every available MBE directly. By memoranda dated January 4 and January 12, 1993, the University of West Florida informed the Board's Office of Capital Programs of its determination that Opus had made the necessary good faith effort to obtain MBE participation and recommended that the contract be awarded to Opus. In making its recommendation, the University explained that the Advisory Committee had no difficulty determining that Opus had made a good faith effort but did have difficulty conforming that determination to the check list which it was required to use. The University further explained as follows: The obvious intent of Item 7, "Did the apparent low bidder provide copies of information to minority community organiza tions and to minority contractor groups at least one week prior to bid opening," is to reach those certified (S)MBE firms that may be interested and may need assistance in bidding the project. It is but one more method of reaching the individual (S)MBE firms. Opus South wrote to each of the certified (S)MBE firms listed in a packet handed out to all potential bidders at the pre-bid conference indicating not only those (S)MBE firms in the region but also those elsewhere in the state (i.e., Tampa, Ocala) who had indicated an interest and capability to do work statewide. If, after being contacted they needed assistance, which one could assume they would, in turn and on their own, they could seek out such minority community organizations, minority contractor groups, small business development centers, and other such organizations. In addition to corresponding with all (S)MBE firms, Opus South subsequently verified to the University's committee by their letter dated December 29, that contact was made with the AGC (Associated General Contractors of America) via F. W. Dodge's Office here in Pensacola. NOTE: It was the opinion of some members of the committee that on Item 4.A., wherein it asked "Did the apparent low bidder provide a reasonable number of letters to show that MBEs were solicited from the available trade areas listed in the DGS MBE Directory," if the contractor was "marginal" in his show of numbers, then Item 7 would be one way to further substantiate his claim. If, however, on Item 4.A., the contractor contacted directly all such certified (S)MBEs having indicated an interest, the instructions should/could read: Item 7 need not apply. In consideration of the above reasoning, and with the full review of the very pertinent comments by the individual commit tee members (clarifying their respective checkmarks), we find no reasonable evidence nor cause to reject said submittal and thus find it to be in compliance. Opus was notified in writing as to the University's recommendation that the contract should be awarded to Opus. Patricia Jackson, the Board's administrator responsible for contract awards, reviewed the Committee's recommendation. She rejected the recommendation of the Committee based on the Board's unwritten policy that unless each member of the Committee checks "yes" for each item on the checklist, the Board will not accept a finding that a bidder is in compliance with all requirements. She further determined that Opus' bid should be rejected because, in her opinion, the Committee had not reached a consensus. That opinion can only be based on a misunderstanding of the meaning of the word "consensus" because each of the Committee members were in agreement as to the proper interpretation of Special Condition 1.7.8 and were in agreement that the contract should be awarded to Opus. Jackson notified the Committee that Opus did not meet Special Condition 1.7.8 and directed the Advisory Committee to meet again. As a result, the Committee agreed to reject Opus' bid as directed by Jackson, reviewed the bid and good faith efforts of Greenhut, and recommended that the contract be awarded to Greenhut. In directing the Advisory Committee to reconvene and reject Opus' bid in compliance with Jackson's instructions, John Jarvis, the project manager and Director of the University's Facilities Planning and Management, explained the Board's staff's decision as follows: Attached, for your information, action and files, is the subject response/ruling dated January 21, 1993, by the Office of Capital Programs (OCP) as regards the findings of the UWF Minority Business Enterprise Advisory Committee recommendation; i.e., that the consensus-recommendation of said committee was that the contractor was in-compliance. This was not acceptable at the Board staff level, on the grounds that the submittal does not comply with the subparagraph 1.7.8 of the project manual special conditions (see copy of excerpt attached) as regards question 7 of the checklist. With this ruling, this is to request you, as the university minority business officer, officially notify (I assume in writing) the apparent low bidder that good faith effort requirements are not in compliance with contract documents (see attached excerpt copy of standard practice 00-0000-3-04-01, page 4 of 5, addressing good faith effort determina tion. See the standard practice cited for special requirements: express mail (return receipt requested), submittal deadlines, and such. Note: you have been copied all other pertinent correspondence and submittals to Tallahassee. This writer and Mr. Martin have exerted much time and effort in the questioning of the "verbatim" reading of the CMBE good faith effort compliance checklist versus a 'commonsense' approach and methodology. And, although it has proved to be to no avail on this project the Board offices are looking at the entire CMBE process. We will see changes forthcoming. In the meantime, this ruling stands, and we must proceed to the next step. Subsequently, Jackson again reviewed the bid of Opus and determined that Opus had not sent follow-up letters to three of the certified MBEs initially contacted. Jackson determined that Opus' bid should have also been rejected for failure to send the three follow-up letters. However, the Board's unwritten interpretation of the condition relating to follow-up letters is that if an MBE responds to an initial contact by informing the contractor that the MBE does not wish to participate in the project, the Board does not require a follow-up letter. There is no requirement that the MBE express its lack of interest in writing, and there is no requirement that the contractor document the MBE's expression of no interest. The only MBEs to whom Opus did not send follow-up letters were those which had informed Opus they did not wish to participate in the contract. Accordingly, under the Board's unwritten interpretation of Special Condition 1.7.4, Opus was in compliance with that Condition. Greenhut, the next apparent low bidder, submitted its good faith efforts documentation for review. Greenhut's good faith efforts submittal was found to be in compliance with all requirements, and Greenhut was determined to be the lowest responsive bidder. Greenhut was awarded the contract for the project by the Chancellor of the Board on April 2, 1993. Greenhut's good faith efforts documentation revealed that Greenhut had contacted fewer certified MBEs than had Opus. Greenhut, however, had contacted several community and minority organizations. When Jackson, from the Board's staff, reviewed the good faith efforts documentation submitted by Greenhut, she determined that Greenhut had complied with the requirement to contact minority and community organizations for the sole reason that Greenhut had contacted the University of West Florida's Small Business Development Center. She determined that not only did the other minority and community organizations contacted by Greenhut not qualify as organizations that render the type of minority assistance contemplated by the statute and the Project Manual, but also that the only organization which she would approve as a qualifying organization was the Small Business Development Center. Since the only organization which the Board's staff would approve as qualifying to meet Special Condition 1.7.8 was the Small Business Development Center, then, in fact, Opus' bid was rejected due to Opus' failure to contact the Small Business Development Center, which is part of the University of West Florida and whose director is on the University's MBE Advisory Committee and who attended the pre-bid meeting in person. Accordingly, the rejection was for failing to notify one specific entity which had full knowledge of the bid solicitation. In other words, Opus' bid was rejected for failing to notify the University itself. Although notification to minority organizations may well be a material condition in most situations, where, as here, the only organization which qualifies is the University, the condition cannot be considered material. Since notifying the University as to the contents of documents given to the bidders by the University would be a futile and senseless act, a condition requiring that cannot logically be considered a material condition. It is a technicality only since performing it is not likely to increase MBE participation. There were several MBEs who contacted the Small Business Development Center regarding the bid solicitation for Project BR-787. Opus had contacted each one of those MBEs directly. Accordingly, had Opus contacted the Center, it would only have made contact with the same MBEs through a different route. Opus received no economic advantage by not sending a letter to the Small Business Development Center advising it that Opus intended to bid on the project, a fact the Center already knew. The Board determined that the failure of Opus to send a letter to the Small Business Development Center was a material, non-waiveable irregularity which rendered Opus' bid non-responsive. The Board reached this conclusion not because it affected the amount of MBE participation or provided Opus an economic advantage over the other bidders. Rather, the Board determined the irregularity was material because it deviated from the Board's interpretation of Section 287.0945, Florida Statutes. The Board took this position even though it recognizes that the statute does not mandate bid rejection in such circumstances. No explanation has been offered for the University's failure to provide the second list--the list containing the names of several organizations including the Small Business Development Center--to all bidders. Withholding the list from the bidders who attended the pre-bid meeting did not promote the purposes of the MBE program. Moreover, the provision of that list to some of the bidders without providing the list to all of the bidders subverted the competitive bidding process by giving some of the bidders an unfair advantage over the others.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered awarding Contract No. BR-787 to Petitioner Opus South Corporation. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of July 1993. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-2740BID Petitioner's proposed findings of fact numbered 1-7, 9-37, and 41-43 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 8 has been rejected as not being supported by the weight of the evidence in this cause. Petitioner's proposed findings of fact numbered 38, 39, and 44 have been rejected as being unnecessary for determination of the issues herein. Petitioner's proposed finding of fact numbered 40 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 1-3, 5, 9, 11-15, 17- 26, 30-33, 35, 36, 40 and 44 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 16, 28, 29, 47, and 48 have been rejected as not supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 4, 6-8, 10, 38, 39, and 45 have been rejected as being unnecessary for determination of the issues herein. Respondent's proposed findings of fact numbered 27, 34, 37, and 46 have been rejected as not constituting a finding of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 41-43 have been rejected as being irrelevant to the issues herein. Intervenor's proposed findings of fact numbered 1-5, 9-15, and 17-26 have been adopted either verbatim or in substance in this Recommended Order. Intervenor's proposed finding of fact numbered 28 was not supported by the weight of the evidence in this cause. Intervenor's proposed findings of fact numbered 6-8 and 16 have been rejected as being unnecessary to the issues involved herein. Intervenor's proposed finding of fact numbered 27 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: Jane Mostoller, Esquire Gregg A. Gleason, General Counsel Board of Regents Office of General Counsel Suite 1522 325 West Gaines Street Tallahassee, Florida 32399-1950 W. Robert Vezina, III, Esquire Mary M. Piccard, Esquire Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Drive Post Office Box 589 Tallahassee, Florida 32399-0589 Robert A. Emmanuel, Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Post Office Drawer 1271 Pensacola, Florida 32596
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the stipulation of facts entered into among the parties, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The name and address of the Petitioner is Golden Eagle Engineering Construction, Inc. (Golden Eagle) 1302 Northwest 33rd Street, Pompano Beach, Florida. The name and address of the Respondent is State of Florida, Department of Transportation, 605 Suwannee Street, Haydon Burns Bldg., Tallahassee, Florida. The name and address of the Intervenor is Toppino's, Inc. (Toppino's) Post Office Box 787, Key West, Florida. The Petitioner timely submitted a bid with regard to state project SR-5 (U.S-1), from the North end of State Bridge No. 900001 to Kennedy Drive in Key West, Budget Item No. 6116637, State Job No. 90010-3519 in Monroe County. The Petitioner was the apparent low bidder with a bid in the amount of $386,017.43. The Intervenor timely submitted a bid in regard to the same state road project (State Job No. 90010-3519). The Intervenor was the second low bidder with a bid in the amount of $398,132.10. The bid specifications required that bids submitted by contractors were to include a designation of at least fifteen percent (15 percent) of work to be performed by certified disadvantaged business enterprises (D.B.E.'s). The bid documents provided a separate form entitled "D.B.E./W.B.E. Utilization Form No. 1" on which the designation of work to the chosen D.B.E. was to be listed. The Respondent "certifies" DBE's in accordance with the standards and procedures set forth in Rule 14-78, Florida Administrative Code. Along with project specifications and other information concerning the proposed job, the Respondent provides hopeful contractors with a D/WBE Directory which lists qualified DBE and WBE businesses. The latest directory prior to the bid opening on the contract at issue here was published by D-O-T in October of 1986. Respondent's Bureau of Minority Programs maintains a current register and will advise any bidder so requesting whether or not a firm qualifies as a DSE or WBE. The invitation to bid provided that the contractor's bid submission must include the following information: The names and addresses of certified DBE and WBE firms that will partici- pate in the contract. Only DBEs and WSEs certified by the Department at the time the bid is submitted may be counted toward DBE and WBE goals. * * * (4) If the DBE or WBE goal is not met sufficient information to demonstrate that the contractor made good faith efforts to meet the goals. The DBE's utilized by the Petitioner to satisfy the requirements of the bid were as follows: (a) Millit $8,972.60 Highway Concrete Corporation $45,330.60 A. Falero Trucking, Inc. $21,500.00 The Petitioner's Bidder's Utilization Form disclosed an apparent 19.5 percent DBE participation. The Petitioner honestly believed that its bid proposal met and exceeded the DBE participation goals specified for the contract. The sealed bids were opened on October 29, 1986. The Respondent, in its initial review of Petitioner's bid, discovered that A. Falero Trucking, Inc., (Falero) was not a certified DBE. On October 31, 1986, Ms. Heather Calligan, majority shareholder of Golden Eagle, wrote Respondent a letter in which she stated that the owners of Falero had assured Golden Eagle that Falero was a certified DBE firm, that they had a current DBE certification letter and that their exclusion from the D/WBE Directory was an oversight on the part of Respondent. Ms. Calligan further advised Respondent that she believed Falero's assertion that the firm was DBE certified because her company is W.B.E. certified and had been omitted from the D/WBE Directory in error in the recent past. Further, Ms. Calligan stated that she had been acquainted with the owners of Falero on a personal and business basis for several years and did not believe that they would mislead her. On November 3, 1986, Ms. Calligan wrote another letter to Respondent wherein she stated that she had contacted Falero concerning their certification and that Falero could not locate their certification letter. Ms. Calligan requested that Golden Eagle be allowed to substitute F.R.E. Construction Company (F.R.E.), a DBE certified company for Falero, should Falero not substantiate its claim of being currently DBE certified. At all times material hereto, Amable Falero and Jose M. Rodriquez owned 100 percent (50 percent each) of the stock of Falero and 70 percent (35 percent each) of the stock of FRE. Falero and FRE, although independent companies, operate from the same business location, have the same management and office staff and use some of the same employees interchangeably. On November 5, 1986, the Respondent received a letter from Mr. Rodriquez, co-owner of Falero. Mr. Rodriquez stated that he personally advised Golden Eagle that Falero was a certified DBE firm and that he had a letter in his files substantiating his claim. Mr. Rodriquez advised Respondent that he had made this representation to Golden Eagle in error. When Respondent discovered that Falero was not a certified DBE, the bid documents were forwarded to its Good Faith Efforts Review Committee for a determination of Petitioner's good faith efforts. The Good Faith Efforts Committee was formed in 1984 and its primary responsibility is to make an objective evaluation of good faith efforts of prime contractors who submit bids to D-O-T. Rule 14-78.03(2)(b)4, F.A.C. lists several factors that the Respondent is required to consider in evaluating a contractor's good faith efforts. (Those factors are enumerated in detail in the Conclusions of law Section herein). The Respondent's practice and procedure is that it will conduct a limited review of the good faith evaluative criteria listed in the Rule even where the contractor has not included a "good faith efforts package" in its bid submission demonstrating good faith efforts. In such cases, the Respondent usually finds the bid non-responsive because of failure to provide documentation of good faith efforts. However, circumstances could exist where the Good Faith Efforts Committee may find good faith in the absence of any good faith efforts documentation specifically submitted by the contractor in its bid proposal. Thus, pursuant to the practice of the Good Faith Efforts Committee, the absence of information demonstrating good faith efforts within the bid proposal does not preclude its evaluation of the contractors' good faith efforts to achieve the goals. The Good Faith Efforts Committee completed a report form entitled "Good Faith Efforts Evaluation" in regard to Petitioner's bid. All of the required statutory criteria was listed on the form. In response to criteria IV ("whether the DBE or WBE goal was met by other bidders") the Respondent entered: "Goal met by other bidder." In response to criteria VII ("whether the contractor elected to sub-contract types of work that match the capabilities of solicited DBE's of WBE's"), the Respondent entered: "Bidder used quotes from three (3) areas." In response to criteria IX ("whether the contractor has on other contracts within the past six (6) months utilized DBE's and WBE's") the Respondent entered: "No projects in the last six (6) months." In response to all of the other criteria, the Respondent entered: "bidder did not submit any documentation", "no documentations", "did not provide documentation" or simply "none submitted". During the Good Faith Efforts Committee review of the Petitioner's bid, the committee was aware that Falero had been a certified DBE in the past, that the Petitioner's bid included an apparent 19.5 percent DBE participation with Falero and that without Falero the Petitioner achieved over 90 percent of the DBE participation goals. Based on the information which it had, the Good Faith Efforts Committee was apparently satisfied that such information did not establish good faith efforts and recommended that the bid be declared non-responsive based on the Petitioner's failure to include good faith efforts documentation with its bid proposal. On November 12, 1986, the report of the Good Faith Efforts Committee was forwarded to the Technical Awards Committee, and based on that report, the Technical Awards Committee voted unanimously to reject the Petitioner's bid as non-responsive and to recommend awarding the contract to Intervenor. Respondent's Final Review Committee, the Contract Awards Committee then decided to declare Petitioner's bid non- responsive and to award the contract to Intervenor. On November 18, 1986, the Respondent mailed a Notice of Switch in Apparent Low Bidder to all parties indicating that Golden Eagle, the apparent low bidder, had been declared non-responsive due to failure to meet DBE requirements and proposing to award the contract to Intervenor, the second low bidder. GOLDEN EAGLE'S HONEST MISTAKE While compiling its bid, one of Petitioner's employees noted that Falero was not listed in the D/WSE Directory. The Petitioner contacted Falero and was informed by one of Falero's owners that Falero was a certified DBE and had a current certification letter. Ms. Heather Calligan, the Petitioner's majority stock holder, was satisfied in her belief that Falero was a certified DBE for several reasons. First, Ms. Calligan was personally acquainted with the owners and knew them to have been DBE certified by Respondent in the past. In addition, Golden Eagle has been a WBE since 1979 and Ms. Calligan was aware that her company's name had been occasionally left off of the D/WBE Directory during times it was certified and should have been included. Based on those factors, the Petitioner honestly believed that Falero was DBE certified and did not call the Department's Minority Programs office to verify Falero's DBE status nor request that Falero produce its letter of certification. FALERO'S STATUS Falero was certified by the Respondent on April 4, 1983, as a minority business enterprise for a period of one year. On May 14, 1984, the company was re-certified for another one year period. On November 20, 1985, the Respondent received an application for re- certification as a disadvantaged business enterprise from Falero. After an initial review of the application, the Respondent wrote Falero a letter dated December 3, 1985 requesting that the company provide: The current financial statement or a breakdown of current assets and liabilities and, Copies of the registration of all vehicles owned by the company. The policy of the Respondent with regard to incorrect or incomplete information submitted by DBE's is to acknowledge receipt of the information and to advise the DBE as to what information should be submitted. The file is then placed in an "abeyance" status pending receipt of the requested information. In October of 1986, Falero had still not fully responded to the Respondent's letter of December 3, 1985 with the complete information requested. After its initial request for additional information, the Respondent made no further request for additional information from Falero with regard to the November 20, 1985 application for re-certification. Falero finally supplied all of the information requested in the December 3, 1985 letter to Respondent in December 1986 in conjunction with a new application for certification. Thereafter, Falero was certified as a DBE in January 1987. Between May 1985 and January 1987 Falero was not a certified DBE and was not included on any of the D/WBE directories prepared by the Respondent during that period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that: The bid of Golden Eagle Contractors, Inc. on State Project No. 90010- 3519 be declared non-responsive; The contract for State Project No. 90010-3519 be awarded to Intervenor; and The protest of Golden Eagle Contractors, Inc. be DISMISSED. DONE and ORDERED this 18th day of March, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 18th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0250BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 2. Adopted in Finding of Fact 1. Adapted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Findings of Fact 7 and 10. Adopted in Finding of Fact 10. Adopted in Finding of Fact 5. Adopted in Finding of Fact 11. Adopted in Finding of Fact 24. Addressed in Procedural Background Section. Addressed in Procedural Background Section. Addressed in Procedural Background Section. Addressed in Procedural Background Section. Addressed in Procedural Background Section. Adopted in Finding of Fact 14. Adopted in Finding of Fact 25. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 29. Adopted in Finding of Fact 31. Adopted in Finding of Fact 14. Rejected as subordinate. Adopted in Finding of Fact 13. Rejected as not supported by the weight of the evidence. Adopted in Finding of Fact 14. Adopted in Finding of Fact 27. Rejected as subordinate. Rejected as subordinate. Adopted in substance in Findings of Fact 26 and 27. Rejected as subordinate. Adopted in Finding of Fact 19. Rejected as subordinate. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 4 and 7. Adopted in Findings of Fact 5, 10 and 11. Addressed in Procedural Background Section. Adopted in substance in Findings of Fact 19, 20 and 21. Adopted in substance in Findings of Fact 9 and 24. Adopted in substance in Findings of Fact 20 and 21. Adopted in substances in Finding of Fact 19. Adopted in substance in Findings of Fact 17, 18, 19 and 20. Adopted in substance in Finding of Fact 21. Adopted in substances in Finding of Fact 21. Adopted in substance in Findings of Fact 13 and 14. Rejected as a recitation of testimony. Rulings on Proposed Findings of Fact Submitted by the Intervenor Adopted in substance in Findings of Fact 7, 9 and 24. Adopted in substance in Finding of Fact 7. Adopted in substance in Findings of Fact 7 and 9. Addressed in Conclusions of Law Section. Adopted in substance in Findings of Fact 10, 11 and 14. Adopted in substance in Findings of Fact 25 and 31. Adopted in substance in Findings of Fact 24 and 31. Adopted in substance in Finding of Fact 26. Partially adopted in Finding of Fact 30. Matters not included therein are rejected as argument and/or subordinate. Addressed in Conclusions of Law Section. Adopted in substance in Findings of Fact 11, 12, 20 and 21. Adopted in substance in Finding of Fact 21. Rejected as argument. Partially adopted in Finding of Fact 24. Matters not contained therein are rejected as argument. Partially adopted in Findings of Fact 13 and 14. Matters not contained therein are rejected as argument. Rejected as argument. COPIES FURNISHED: Melissa Fletcher Allaman, Esquire Post Office Box 1170 Tallahassee, Florida 32302-1170 Jay O. Barber, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301 John O. Williams, Esquire 1343 E. Tennessee Street Tallahassee, Florida 32308 Kaye N. Henderson Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301 A. J. Spalla, Esquire Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
The Issue (1) Whether Respondent's sign is located on a state maintained right-of-way and therefore in violation of Subsection 479.11(5), Florida Statutes. (2) Whether Respondent's sign is in violation of the setback requirements of Subsection 479.11(1). (3) whether Respondent's sign is in violation of the permit requirement of Subsection 479.07(1).
Findings Of Fact The Respondent owns a sign located at the junction of U.S. Highway 90 and 319 in Wakulla County, Florida. The sign is within the boundaries of the state maintained right-of-way as presently situated. The sign was erected at the direction of Mr. Val Tuck upon the good faith belief, based on the representations of third parties, that this site was outside the right-of-way. Subsequent information has convenienced Mr. Tuck that the sign is within the right-of-way. DONE AND ORDERED this 28th day of July, 1975, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay Hendrickson
The Issue The issue to be resolved in this proceeding concerns whether the Respondent is guilty of obtaining a real estate license by means of misrepresentation or concealment by failing to disclose a plea to a charged crime in her past, in alleged violation of Section 475.25(1)(m), Florida Statutes.
Findings Of Fact The Petitioner is an agency of the state of Florida charged with licensing and regulating the entry into practice and the practice of real estate sales. Including within its responsibility is the duty to prosecute administrative complaints for alleged violations by licenses of Chapter 475, Florida Statutes, and related rules. Respondent, Patricia D. Mackovic, at all times pertinent hereto, has been a licensed Florida real estate salesperson. She was issued license number 0640501 in accordance with Chapter 475, Florida Statutes, in the later part of 1996. On or about January 25, 1984, the Respondent plead nolo contendre to a charge involving welfare fraud (failure to disclose a material fact). She was ordered to pay restitution and placed on probation for two years by the circuit court of Escambia County, Florida, but adjudication was withheld. As a result of her discussions with the prosecution in that case and the welfare case worker involved, she was of the belief that she had mistakenly obtained welfare benefits that she was not entitled to (apparently because her income was higher than the relevant limit). She was of the belief that the matter was ultimately dismissed and that, upon paying restitution nothing else remained of the charges. She had a genuine, good faith belief that there was not actually a conviction. She also believed at the time, based upon her reading of the judge's order and discussing the matter with her attorney and the prosecutor, that the record involved in the matter would be under seal in any event. On or about July 18, 1996, the Respondent submitted an application for licensure as a real estate salesperson to the Petitioner agency. When she applied for that license she was asked on the application form whether she had ever been convicted of a crime, found guilty or entered a plea of nolo contendre, even if adjudication was withheld. If she answered in the affirmative, she was required to attach an explanation of the circumstances and facts. The question applies to any violation of law without regard to whether the applicant for licensure had been placed on probation, had adjudication withheld, was paroled or pardoned. The Respondent responded "no" to this question. She signed the certification at the end of the application, swearing that all answers and information contained in the application were true, correct and complete. Respondent remembered being arrested at 6:30 a.m., by two sheriff's deputies, finger-printed concerning the above charge and going to court. She remembers entering a discussion with the judge and ultimately pleading nolo contendre and being given two years of probation, making restitution of the disputed amount of money concerning the subject welfare payments. The Respondent believed the matter had been dismissed and that it did not constitute a conviction on her record at the time she answered the subject question on the application for licensure. The Respondent believed at the time she answered the question that the charge against her had been dismissed as a consequence of her serving probation (which was shortened by the judge to less than two years), and as a consequence of her making restitution of the moneys involved. The language of the judge's order supports her in that belief to the extent that the judge recites that the "ends of justice and the welfare of society, do not require that you should presently be adjudged guilty and suffer the penalty authorized by law. . .". The Respondent testified that she now understood that question nine required disclosure of a conviction, an "adjudication withheld" or a plea, including a plea of nolo contendre. She had answered in the negative, however, because, at the time she answered the question, she believed, based upon the language in the judge's order, her discussion with the judge and her efforts to have the matter resolved after the initial hearing, which resulted in the probation time being reduced, that the matter had been dismissed on the basis of her restitution and serving the reduced probationary period. Thus she had an honest belief at the time she answered the question that she had not been convicted. Because she had an honest belief at the time, even if mistaken, that she had answered the question accurately, she cannot be determined to have committed a fraudulent act or representation, or an act of misrepresentation or concealment in order to obtain her real estate license. In making this factual finding, the undersigned has observed the Respondent's candor, demeanor, and apparent contrition in describing the incident and circumstances involved. The undersigned determines her version of events to be credible and that she never intended to falsely answer the subject question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses it is, therefore, RECOMMENDED: That the Respondent be found not guilty of violating Section 475.25(1)(m), Florida Statutes, as charged in the Administrative Complaint, and that that Administrative Complaint be dismissed in its entirety. DONE AND ENTERED this 3rd day of February, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Patricia Mackovic 5796 Utica Avenue Pensacola, Florida 32507 Ghunise Coaxum, Esquire Department of Business and Professional Regulation Suite N-308 400 West Robinson Street Orlando, Florida 32801-1772 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street P. MICHAEL RUFF 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 www.doah.state.fl Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1999. Tallahassee, Florida 32399-0792 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32302-1900
Findings Of Fact The parties stipulated to findings of fact set forth in paragraphs 1.-10., below. Stipulated Facts A call for bids was published by Respondent, Florida Board of Regents, for BR-198, Veterinary Medicine Teaching Hospital Expansion - Phase II (BR-198), located at the University of Florida, Gainesville, Florida, in the publication known as the Florida Administrative Weekly. Sealed bids were received on February 21, 1991, at which time the bids were publicly opened and read aloud. On February 27, 1991, Dooley and Mack Constructors, Inc. (Petitioner) was informed by the University of Florida that the first and second apparent low bidders for the project did not meet MBE requirements, and that Petitioner was now the apparent low bidder for the project. The University requested that Petitioner submit its MBE good faith efforts for review. On March 1, 1991, Petitioner was informed by the University of Florida that it failed to meet the MBE good faith effort requirements, and therefore, its bid was rejected. The reason for rejection of Petitioner's bid was that Petitioner's advertisement for MBE participation, as part of its demonstration of good faith effort, did not appear in the media at least seven days prior to bid opening. Intervenor, the next apparent low bidder, submitted good faith efforts for review by the University and was determined to be the lowest responsive bidder. Intervenor was awarded the project by the Chancellor of the Florida Board of Regents on March 18, 1991. By letter dated March 19, 1991, Petitioner was advised that the Chancellor had awarded the contract to Intervenor. Petitioner was provided an opportunity to file a notice of protest pursuant to Section 120.53(5), Florida Statutes. Petitioner filed a timely notice of protest with Respondent on March 22, 1991. Petitioner timely filed a formal bid protest in regard to this project which was received by Respondent on March 27, 1991. By facsimile (FAX) letter dated February 13, 1991, Petitioner requested that the Gainesville Sun, a newspaper in Gainesville, Florida, run an advertisement for one day to solicit bids from qualified MBE companies for BR- 198. The advertisement was published in the February 18, 1991 edition of the newspaper. The Project Manual, Section 1-3 of 1-10 Pages, Special Conditions section, paragraph 1.7.2.2., provides that advertisements for minority business enterprises must run or be published on a date at least seven days prior to bid opening. Other Facts The Project Manual is an assembled volume which contains instructions to bidders, bidding requirements, sample forms, and contract conditions and specifications for BR-198. A special condition of the bid requires that at least 15 percent of the project contract amount be expended with MBEs certified by the Department of General Services. 1/ In the absence of compliance with this requirement, a bidder must demonstrate that good faith efforts were expended to comply. A contractor desiring to demonstrate that a good faith effort was undertaken to meet the 15 percent goal is required by the bid's special conditions to have advertised to inform MBEs of subcontracting opportunities. The importance of advertising is to alert the minority community regarding projects that are out for bid and are available to subcontractors. The advertisements must have been run in trade association, or minority-focus media, or a local newspaper with a minimum circulation of 25,000. Advertisements must be run or published a minimum of seven days prior to bid opening. Petitioner's advertisement in a local newspaper, the Gainesville Sun, was not published until February 18, 1991, only three days prior to the February 21, 1991 bid-opening. Further, the advertisement was not faxed to the newspaper until February 13, 1991, and then with the written request to "please place as soon as possible and run for one day." A letter from the newspaper to Petitioner stated that the legal notice advertisement was published on February 18, 1991, as opposed to February 16, 1991, due to a date error on their FAX machine. The latter date, even if publication had occurred, would not have complied with bid requirements. Petitioner also submitted a project notice published in the construction industry bulletins F.W. Dodge Reports, dated February 1, 1991; CMD Reports, dated February 18, 1991; and the Mid State Notifier, dated February 1, 1991. The notices listed Petitioner as well as other bidding contractors. However, it is specifically found that no direct admissible evidence supports Petitioner's responsibility for initiating publication of these notices, a requirement of the good faith effort. Specifically, the notices were published as the result of information received by the publications from the University of Florida. Therefore, good faith efforts on Petitioner's behalf may not be established by either publication, regardless of publication date. Moreover, the F.W. Dodge Reports, CMD Reports, and the Mid State Notifier are private subscription publications directed toward the construction industry in general as opposed to any particular trade in the construction industry. Further, these publications are not directed to or focused on minority businesses. A trade association publication is generally published by not-for-profit associations, such as the Association of General Contractors, and various trade unions. Petitioner did not comply with advertising requirements related to a good faith effort, a prerequisite for bid award. Petitioner's failure to comply with constitutes a material defect in Petitioner's bid response.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered granting the award of the bid in BR-198 to Intervenor as the lowest responsible bidder. DONE AND ENTERED this 27th day of June, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 27th day of June, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-2703BID The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-10. Adopted in substance, although not verbatim 11.-14. Rejected, unnecessary. Adopted in substance, though not verbatim. Rejected, unnecessary. Rejected, unnecessary, argumentative Adopted. Intervenor's Proposed Findings. 1.-16. Adopted in substance, though not verbatim. 17-18. Rejected, unnecessary. Respondent's Proposed Findings. 1.-10. Adopted in substance. 11.-22. Adopted in substance, though not verbatim. 23.-24. Rejected, unnecessary. 25.-40. Adopted in substance, though not verbatim. COPIES FURNISHED: William R. Dooley, Esq. 2070 Ringling Blvd. Sarasota, FL 34237 Jane Mostoller, Esq. Florida Board of Regents Suite 1522 325 West Gaines St. Tallahassee, FL 32399-1950 Alfred J. Malefatto, Esq. 777 South Flagler Drive Suite 310-East West Palm Beach, FL 33401 Chancellor Charles B. Reed State University System of Florida 107 West Gaines St. Tallahassee, FL 32399-1950
The Issue The issue in this proceeding is whether the proposed award of a contract to PCL Civil Contractors, Inc. ("PCL"), for the rehabilitation of the Jewfish Creek Bridge in Monroe County, Florida violates Section 120.57(3), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact On September 24, 1998, Respondent issued an invitation to bid ("ITB") on a proposed contract for the rehabilitation of the Jewfish Creek Bridge in Monroe County, Florida. The ITB identified the project as Financial Project No. 250533-1-52-01 and contract number E-6844. Respondent budgeted $707,323 for the project and established two disadvantaged business enterprise ("DBE") goals. Eight percent of the total amount actually expended for the project was reserved for non-minority female DBEs. Four percent of the total project expenditure was reserved for Black American DBEs. On October 1, 1998, five bidders submitted bids. Petitioner submitted the lowest bid in the amount of $855,899.74. PCL submitted the second lowest bid of $940.471.50, and Coastal submitted the third lowest bid of $951,071.11. The fourth and fifth lowest bids were submitted by M&J Construction Co. ("M&J") and by The Walsh Group dba Archer Western ("Archer"). The respective bids of M&J and Archer were $1,100,471.88 and $1,149,000. Respondent determined that the bids from M&J and Archer were non-responsive. Neither M&J nor Archer protested Respondent's determination, and Respondent's determination is not at issue in this proceeding. Respondent proposes to award the contract to PCL as the second lowest bidder. Respondent proposes that the bid submitted by Petitioner is non-responsive because it does not meet established DBE goals; and because it fails to demonstrate Petitioner's good faith effort to meet applicable DBE goals. In addition, Respondent proposes that the bids submitted by PCL and Coastal are responsive because each meets applicable DBE goals for the project. It is uncontroverted that Petitioner failed to meet applicable DBE goals. The issues for determination are whether Respondent's proposed evaluation of Petitioner's good faith efforts to meet applicable DBE goals and Respondent's proposed determination that PCL and Coastal met DBE goals is contrary to governing statutes, rules, and policies; and, if so, whether Respondent's proposed agency action is "clearly erroneous, contrary to competition, arbitrary, or capricious." Contrary to Applicable Statutes As a threshold matter, Respondent's proposed agency action is contrary to Section 120.57(3)(d)3. Section 120.57(3)(d)3 provides that if the subject of a protest is not resolved within seven days after the receipt of a formal written protest, "the agency shall refer the protest" to DOAH. (emphasis supplied) Petitioner first filed its formal protest of the proposed agency action on November 11, 1998. For reasons discussed hereinafter, Respondent did not refer the protest to DOAH within seven days. Rather, Respondent referred the protest to DOAH on May 20, 1999, approximately 190 days after the formal protest. On March 14, 1999, Respondent issued a second notice of intent to award the contract to PCL. Petitioner timely filed a second formal written protest on March 18, 1999. Respondent did not refer the matter to DOAH until May 20, 1999, approximately 33 days later. Unlike Section 120.57(3)(e), there is no provision in Section 120.57(3)(d)3 which authorizes Respondent to ignore the seven-day requirement upon stipulation by all of the parties. Even if such authority exists by implication in Section 120.57(3)(d)3, no evidence shows that the seven-day requirement in Section 120.57(3)(d)3 was waived by an express stipulation, written or oral, knowingly executed by all of the parties. Any stipulation would arise from a combination of implied statutory authority and tacit acquiescence or waiver by the all of the parties. Contrary to Applicable Rules Respondent's proposed evaluation of Petitioner's good faith efforts to comply with applicable DBE goals is contrary to Florida Administrative Code Rule 14- 78.003(2)(b)3.f.(IV), Rule 14-78.003(2)(b)6.c and d, and Rule 14-78.003(2)(b)f and h. (Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) Rule 14-78.003(2)(b)3.f.(I)-(XI) prescribes the criteria by which Respondent must evaluate Petitioner's good faith efforts to meet applicable DBE goals. Rule 14-78.003(2)(b)3.f.(IV) requires Respondent to consider whether applicable DBE goals were met by the other bidders. Applicable DBE goals were not met by either PCL or Coastal. The information needed to consider whether PCL and Coastal met applicable DBE goals was included in their respective bids and available for Respondent's consideration in accordance with Rule 14-78.003(2)(b)3.f.(IV). Respondent did not consider the relevant information in the bids submitted by PCL and Coastal. Rather, Respondent merely accepted the conclusion of each bidder, on the face of its bid, that each bidder met applicable DBE goals. The PCL Bid The PCL bid contained two DBE utilization forms. One indicated an intent to subcontract $76,000, or approximately eight percent of the bid amount, to ABC Barricade Co. ("ABC") for traffic management. The other utilization form indicated an intent to subcontract $38,000, or approximately four percent of the bid amount, to TCOE Corporation ("TCOE") to furnish and install roadway steel. ABC is certified by Respondent as a non-minority female DBE, and TCOE is certified by Respondent as a Black American DBE, defined in Rule 14-78.002(18)(a)1. The bids of Petitioner and Coastal also included subcontracts with ABC. However, the amount of the subcontract in the PCL bid was approximately twice the amount of the respective subcontracts in the bids from Petitioner and Coastal. Of the $76,000 PCL was to pay to ABC, the PCL bid showed that $53,430, or approximately 70 percent, was designated for payment to off-duty law enforcement officers. The PCL bid did not specify whether ABC would perform a commercially useful function for the $53,430 earmarked for law enforcement or whether ABC would subordinate over 70 percent of its contract to a non-DBE, the law enforcement agency. Rule 14-78.003(2)(b)6.c authorizes Respondent to count toward the DBE goals achieved by PCL only those expenditures to DBEs that perform a commercially useful function. The rule states that a DBE such as ABC performs a commercially useful function when: . . . it is responsible for execution of a distinct element of the work of a contract and carrying out its responsibilities by actually performing, managing, and supervising the work involved. If ABC did not perform a commercially useful function, ABC would subordinate more than 49 percent of the subcontract work. In such a case, Rule 14-78.003(2)(b)6.d provides that none of the DBE subcontract amount may be counted toward the DBE goals for PCL. Respondent counted the ABC contract toward PCL's DBE goals without considering whether the ABC contract complied with the requirements in Rule 14-78.003(2)(b)6.c and d, pertaining to a commercially useful function and the subordination of more than 49 percent of the contract amount. Respondent has no authority under its rules to count the ABC contract toward PCL's DBE goals unless the contract complies with applicable requirements in Rule 14-78.003(2)(b)6.c and d. Respondent violated Rule 14-78.003(2)(b)3.f.(IV) by counting the ABC contract toward PCL's DBE goals without considering whether the ABC contract qualified under Rule 14- 78.003(2)(b)6 c and d. Respondent's proposed evaluation of Petitioner's good faith efforts to comply with applicable DBE goals is contrary to Rule 14-78.003(2)(b)6.c and d and Rule 14-78.003(2)(b)3.f(IV). The PCL subcontract with TCOE did not require TCOE to perform a commercially useful function. The vice-president of TCOE could not recall another project in which TCOE had ever furnished and installed roadway steel and did not recall any current jobs in which TCOE is performing such work. TCOE did not have a supplier lined up to supply the necessary steel. TCOE does not fabricate the particular type of steel required to be furnished and installed in this project. The vice-president for TCOE could not state a price for roadway steel which TCOE agreed to fabricate and supply to PCL. He could not state the factors TCOE used in preparing the estimate given to PCL. The square-foot price of the steel quoted by TCOE was between a half and a third less than the price quoted by the other two low bidders and approximately one third less than Respondent's average. In addition, the TCOE bid included 400 tons less than the other two bids. Respondent counted the TCOE contract toward PCL's DBE goals without considering whether the TCOE contract complied with the requirements in Rule 14-78.003(2)(b)6.c and d, pertaining to a commercially useful function and the subordination of more than 49 percent of the contract amount. Respondent has no authority under its rules to count the TCOE contract toward PCL's DBE goals unless the contract complies with applicable requirements in Rule 14-78.003(2)(b)6.c and d. Respondent violated Rule 14-78.003(2)(b)3.f.(IV) by failing to consider whether PCL's subcontract with TCOE could be counted toward PCL's DBE goals under Rule 14- 78.003(2)(b)6.c and d. Respondent's proposed evaluation of Petitioner's good faith efforts to comply with applicable DBE goals is contrary to Rule 14-78.003(2)(b)6.c and d and Rule 14-78.003(2)(b)3.f(IV). The Coastal Bid The bid submitted by Coastal included three DBE utilization forms. Coastal submitted one form indicating an intent to subcontract $44,992 to ABC, or approximately 4.7 percent of the project. The subcontract with ABC is not at issue. Coastal also indicated an intent to subcontract Jayaldon Enterprises, Inc. ("Jayaldon") and Acutec, Inc. ("Acutec") for separate types of roadway steel. Jayaldon and Acutec are each certified as a DBE. The contract amounts were $51,973.36 for Jayaldon and $97,823.22 for Acutec. Pursuant to Rule 14-78.003(2)(b)6.f, Respondent counted 60 percent of each contract, or $31,184.01 for Jayaldon and $58,693.93 for Acutec, toward Coastal's DBE goals. Jayaldon would not perform a commercially useful function within the meaning of Rule 14-78.003(2)(b)6.c. In addition, Jayaldon is a sales representative company for Florida Structural Steel and is not a regular dealer. A regular dealer is defined in Rule 14-78.002(15) to mean: . . . a firm that owns, operates, or maintains a store, warehouse, or other establishment in which the materials or supplies required for the performance of the contract are brought, kept in stock, and regularly sold to the public in the usual course of business. To be a regular dealer, the firm must engage in, as its principal business and in its own name, the purchase and sale of the products in question. A regular dealer in such bulk items as steel, cement, gravel, stone, and petroleum products does not need to keep such products in stock, if the dealer owns or operates the appropriate distribution facility. Brokers and packagers shall not be regarded as . . . regular dealers within the meaning of these rules. Jayaldon does not stock steel in a warehouse and does not fabricate steel. If Coastal had been awarded the contract, Jayaldon would have submitted an order to Florida Structural Steel and Florida Structural Steel would have fabricated the steel and shipped it directly to Respondent at the project site. Jayaldon would not have been responsible for execution of a distinct element of work by actually performing, managing, and supervising the work involved. Acutec is an electrical contractor and is not a regular dealer in roadway steel within the meaning of Rule 14- 78.002(15). Coastal contacted Acutec after the bids were submitted and asked Acutec to serve as a pass-through for supplying steel roadway floor. If awarded the contract, Acutec would have ordered the structural steel from an independent supplier, marked it up, and had the supplier ship the steel to Coastal. Rule 14-78.003(2)(b)6.h authorizes Respondent to count toward Coastal's DBE goals only prescribed expenditures from the Jayaldon and Acutec contracts. Pursuant to Rule 14- 78.003(2)(b)6.h.(I), Respondent is authorized to count only the fees or commissions charged by each company for assistance in the procurement of materials or supplies. However, Respondent did not count the expenditures in the contracts with Jayaldon and Acutec pursuant to Rule 14-78.003(2)(b)6.h. Pursuant to Rule 14-78.003(2)(b)6.f, Respondent counted 60 percent of the contested expenditures toward Coastal's DBE goals. Rule 14-78.003(2)(b)6.f authorizes Respondent to do so only if Jayaldon and Acutec are regular dealers. Neither Jayaldon nor Acutec is a regular dealer in roadway steel as defined in Rule 14-78.002(15). When Respondent counted 60 percent of the expenditures to Jayaldon and Acutec toward Coastal's DBE goals, Respondent violated Rule 14-78.003(2)(b)3.f (IV) by failing to consider whether Coastal met its DBE goals. Respondent's proposed evaluation of Petitioner's good faith efforts to comply with applicable DBE goals is contrary to Rule 14-78.003(2)(b)3.f.(IV) and Rule 14-78.003(2)(b)6.f and h(I). Contrary to Policy On February 9, 1994, Respondent issued a memorandum entitled, "Disadvantaged Business Enterprise Good Faith Efforts Review Committee" (the "Memorandum"). The Memorandum officially stated agency policy for the organization of the Good Faith Efforts Review Committee (the "Committee") and the Committee's review and recommendations concerning contractors' documentation of their good faith efforts to comply with DBE goals established by Respondent in a bid or request for proposal. The policy applies to local districts as well as the central office. The Committee consists of three primary and two alternate members. The chairperson is appointed by the director of administration. The other two members of the Committee are the manager of the minority programs office and an employee from the office of construction who is appointed by the director of construction. Alternate members are appointed by the director of administration and the director of construction. Prior to any meeting of the Committee, the minority programs office must prepare copies of relevant bid documents and other working papers to assist the Committee in its analysis. The Committee members then meet and review the bidders' good faith efforts in accordance with the criteria set forth in Rule 14-78.003(2)(b)3.f. The chairperson must prepare minutes to document the Committee meeting. At the conclusion of the meeting, a member of the Committee must write a Committee report. The report must include the Committee's recommendations and its rationale in support of the recommendations. The report must also include copies of all materials used by the Committee in its analysis. Each member of the Committee must sign the report. The Committee must distribute the report to all members of the technical review committee as well as the members of the contracts award committee. Respondent's review of Petitioner's good faith efforts was contrary to officially stated agency policy in the Memorandum. After the bids were opened and evaluated on October 1, 1998, Respondent's Contracts Administrator for District 6 prepared a memorandum to the Technical Review Panel. The memorandum summarized the bids and stated that the "lowest bidder has not met DBE goals. Second lowest bidder has met goals." The memorandum recommended that the contract be awarded to PCL. The memorandum, including its recommendation, was distributed to members of Respondent's technical review committee. Rather than conducting a meeting of the technical review committee, each member of the committee submitted a memorandum indicating whether to reject or to accept the recommendation to award the contract to PCL. The Contracts Administrator for District 6 distributed Petitioner's bid, including the evidence of Petitioner's good faith effort to meet DBE goals, only to Respondent's district compliance officer. When the District Compliance Officer received Petitioner's bid from the Contracts Administrator, the District Compliance Officer reviewed the documents with the Assistant District Engineer for District 6. The District Compliance Officer and Assistant District Engineer discussed and evaluated Petitioner's good faith submittal, but did not report their conclusion to other members of the technical review committee. Rather, the District Compliance Officer submitted a memorandum to the Contracts Administrator stating, "Quinn Construction did not meet the goal therefore it's my recommendation to reject their bid." The District Compliance Officer submitted the memorandum in the name of his supervisor concluding that "Quinn Construction did not meet DBE goals." On October 29, 1998, Respondent posted its notice of intent to award the contract to PCL. On November 2, 1998, Petitioner timely filed its notice of protest. On November 11, 1998, Petitioner timely filed its formal written protest of the notice of intent to award the contract to PCL. As a result of Petitioner's protest, District 6 determined that it should formalize the process by which it reviewed good faith effort submittals. The supervisor for the District Compliance officer appointed the District Compliance Officer and the Assistant District Construction Engineer to the newly created District 6 Good Faith Efforts Committee. By telephone conference, the three District 6 employees met with three individuals from Respondent's central office. The three individuals in the central office were the Manager of the Minority Programs Office, a representative of Respondent's administration office, and a representative of Respondent's office of construction. The manager of the minority programs office prepared minutes of the meeting. The minutes are in evidence in this proceeding. The participants in the telephone conference concluded that Petitioner's bid was non-responsive. The Committee based its conclusion on several grounds. The Committee determined that Petitioner did not solicit from 47 of 68 companies listed in the DBE Directory as doing the types of work being solicited by the prime contractor in the geographic area where the work was to be performed. The Committee also determined that Petitioner sent solicitation letters by fax rather than by certified mail. Finally, the Committee determined that the second and third low bidders achieved applicable DBE goals. On March 14, 1999, Respondent posted its second notice of intent to award the contract to PCL. On March 18, 1999, Petitioner timely filed its second protest of Respondent's proposed agency action. The first proposed evaluation of Petitioner's good faith efforts to comply with applicable DBE goals is contrary to officially stated agency policy in the Memorandum. The first District 6 good faith review committee did not include the three members required by agency policy. The committee did not receive required information in advance of the meeting. The committee neither prepared minutes of the meeting nor authored a report which included the committee's recommendations and supporting rationale. The committee did not otherwise disseminate its findings to the contracts awards committee or to the technical review committee. The second evaluation of Petitioner's good faith efforts to comply with applicable DBE goals was contrary to officially stated agency policy in the Memorandum. The Committee was not constituted in accord with membership requirements prescribed in the Memorandum. A member of the Committee did not write a report, and all of the Committee members failed to sign the required report. Copies of materials used by the Committee in its analysis were not attached to a report of the Committee. A report was not distributed to all members of the contract awards technical review committee and the contracts award committee. Minutes of the telephone conference conducted by the Committee were sent only to the minority programs office. The minutes were not disseminated either to the contracts awards technical review committee nor to the contract awards committee. After the telephone conference meeting of the Committee, a subsequent meeting of the technical review committee did not occur. The technical review committee received no further information for their consideration in voting whether to award or to reject the bid. Petitioner's Good Faith Efforts Petitioner's bid contains a DBE utilization summary form indicating an intent to subcontract with ABC in the amount of $38,000, or approximately five percent of the total project. Petitioner's bid also contains documentation of Petitioner's good faith effort to obtain additional minority participation. Both the DBE utilization summary form and the documentation of good faith efforts comply with the requirements of Rule 14-78.003(2)(b)3. In its bid, Petitioner submitted proof of solicitation of 26 qualified DBE firms. Each firm is listed in Respondent's monthly DBE Directory as performing work included in the project, either in Monroe County or statewide. In relevant part, Respondent's proposed evaluation of Petitioner's good faith effort to comply with applicable DBE goals states that Petitioner failed to contact 47 companies listed in the DBE Directory as doing work solicited by the contractor for the project. Of the 47 DBEs, 22 were maintenance or traffic subcontractors. Petitioner had a firm agreement with ABC. ABC was the same DBE used by PCL and Coastal. Another 17 of the 47 DBEs were painters who did not have the QP2 certification required for the project specifications. There was no reason for Petitioner to contact painters who were not QP2 certified. Another three of the 47 DBEs did not perform any item of work available on the project. Another four of the 47 DBEs had telephone numbers that were either disconnected or answered by different parties or entities. The remaining DBE was TCOE. TCOE was not interested in submitting a bid to Petitioner for this project. Rule 14-78.003(2)(b)3.f.(I) requires Respondent to consider whether a contractor contacts DBEs by certified mail. Although Respondent prefers that bidders contact DBEs by certified mail, Respondent does not require notice by certified mail. Petitioner provided reasonable notification to DBEs by fax. Petitioner included a fax log with its bid to show that the transmittals were successful. Petitioner selected economically feasible portions of the work to be performed by DBEs. Petitioner made all items in the contract available for subcontracting. Petitioner offered to assist DBEs in reviewing the contract plans and specifications. Petitioner submitted all quotations received from DBEs. Petitioner was not asked to assist any DBE in obtaining bonding, lines of credit, or insurance. Within the last six months, Petitioner has used DBEs on other contracts. Petitioner's utilization of DBEs has exceeded contract goals established by Respondent in each case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner submitted the lowest responsive bid to Financial Project No. 250533-1-52-01 and that Respondent's proposed evaluation of Petitioner's good faith efforts to comply with applicable DBE goals is contrary to applicable rules and officially stated agency policies, and is clearly erroneous. DONE AND ENTERED this 3rd day of August, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1999. COPIES FURNISHED: Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Mike Piscitelli, Esquire 560 East Broward Boulevard Fort Lauderdale, Florida 33394 Suzanne Grutzner, Esquire 1321 77th Street East Palmetto, Florida 34221 Brian F. McGrail, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Daniel Te Young, Esquire Post Office Box 589 Tallahassee, Florida 32302-0589
The Issue The issue for consideration in this case is whether the Respondent, Florida Board of Regents, acted fraudulently, arbitrarily, illegally or dishonestly in its award of Board Project Number BR-403, for the extension of Gemini Boulevard on the campus of the University of Central Florida, (UCF), to Amick Construction, Ltd., the second lowest bidder, instead of to Petitioner, Hubbard Construction Company, the lowest bidder.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Florida Board of Regents, was the state agency responsible for the award of major procurement and construction contracts for projects at the various state universities in Florida. On October 26, 1994, the Regents issued a Project Manual requesting bids for the Gemini Boulevard Extension Project at the University of Central Florida, Contract No. BR-403 . The procurement had a Minority Business Enterprise, (MBE) goal of 21 percent of the base bid. Included within the bid documents was the provision that: The Bidder must ascertain that a listed MBE is certified by the DGS in the appropriate Specialty Area to perform the services for which it is listed. The Bid Documents also provided that MBE's not certified with the DGS would be deleted from the calculation of the required participation of MBEs, and evidence of good faith effort in lieu of a showing of an adequate percentage of certified MBE's would be required. Hubbard picked up a copy of the Bid Documents from UCF on November 23, 1994. The Bid Documents did not specify the manner in which bidders were to verify certification status of the MBE's they proposed to use, and which were listed in their bid submittals. However, at the pre-bid conference held on November 30, 1994, UCF's representative advised the prospective bidders that DMS was to be used as the source for MBE certification. Susan Hodge, a DMS employee, was identified as the person to be contacted to verify the certification status of any particular MBE. Her telephone number and name were given out at the pre-bid conference, but this information, and the suggestion that prospective bidders call Ms. Hodge, was not made a written requirement of the procurement. This meeting was attended by Michael Jones of Hubbard. However, regardless of the fact that the prospective bidders were given Ms. Hodge's name and number and advised to call her, only Amick did so prior to bid opening. Hubbard did not. Notwithstanding the Bid Documents required DGS certification of MBEs, at the time of bidding there was no such agency. It had been replaced by the Department of Management Services, (DMS). This agency, however, does not certify MBE's. Required state certification is done by the Commission on Minority Economic and Business Development, (Commission). The terms, "Commission" and "DMS" were used interchangeably by witnesses at the hearing. When the Commission took over from DGS the responsibility for maintaining the list of certified MBE's it began the periodic publishing of written listings of certified MBE's so that prospective bidders could review the list to see if a particular organization or business was certified. A copy of the list was published in December, 1994, before the bids were opened. This vendors list was not intended to be the sole source for identifying certified MBE contractors. Bidders were free to contact the appropriate agency soliciting bids to determine specific agency criteria, if any. The State University System's, (SUS), Standard Practice for the Solicitation of Bids, written guidelines covering procurement practice by those entities within SUS, calls for each university to establish a geographic radius for identifying MBE's in mailing invitations to bid. This radius includes the distance which a contractor may reasonably be expected to travel to a project for which materials or supplies can be obtained on site at a competitive price. The guidelines also require each university to identify general and specialty trade units for each project; to identify MBE's consistent with the breakdown of specialty trade units within the geographic radius; and to prepare mailing lists of MBE's to which invitations to bid may be mailed. These guidelines, as published, are followed by UCF's minority purchasing coordinator, Mr. Puskas, in the performance of his duties. In actuality, however, the sequence of events is somewhat different than listed above. In practice, the project architect selects the commodity and trade areas from the directory, after which he selects minority vendors listed under each appropriate commodity and trade area on lists prepared by UCF. As established, the pertinent geographic area is a five-county local area in central Florida. Certain statewide vendors are also included. The final UCF list of MBE's is provided to bidders at the pre-bid conference for their use in locating MBE's. The list required by the Standard Practice guidelines is similar to that required by statute in Sections 255.102(c), and 287.0945(6)(h), Florida Statutes. In the instant case, however, because most of the MBE's on the initial list prepared for this project were of little value to prospective bidders, Mr. Puskas believed that list needed adjusting. Seven bids were received for the project in issue. The bids were opened on December 14, 1994 and it was determined that Hubbard had submitted the lowest bid of $1,544,000. Second lowest bidder was Amick whose base bid was $1,662,821. Section 1.1.1 of the Special Conditions contained in the Bid Documents required that at least 21 percent of the base bid be with certified minority business enterprises, unless the bidder could demonstrate the good faith effort to secure certified MBE's was made, as identified in paragraph 1.7. This requirement was incorporated in the bid proposal furnished to Hubbard. Hubbard's bid included a list of five MBEs it proposed to use on this project. Included on the list was Margie Woods Trucking. The total dollar amount proposed to be expended on the MBEs was $325,000, which constitutes 21 percent of Hubbard's base bid. This list of MBE's submitted by Hubbard was on a form which contains the words, "Include only MBE's certified by the DGS." When the bids were opened, and it was determined that Hubbard was the apparent low bidder, UCF procurement personnel verified that Hubbard proposal met the 21 percent MBE goal. Thereafter, Mr. Puskas placed telephone call to the Commission office in Tallahassee to determine if all MBE's listed by Hubbard in its bid were state certified. It was found that Margie Woods Trucking was no longer certified by the Commission, but was certified by the Florida Department of Transportation and by Volusia County. If Margie Woods Trucking could not be considered a properly certified MBE, Hubbard's bid would not meet the 21 percent MBE goal. When this situation became apparent, Mr. Newman, UCF's director of facilities planning, telephoned Terri Tabor, the Regents' project administrator, and advised her of the problem. Ms. Tabor instructed him to request that Hubbard find a substitute MBE for Margie Woods Trucking. Ms. Tabor indicated that when she had previously worked at DMS, substitutions of MBE's was permitted "all the time." Mr. Newman commented on Hubbard's failure to verify the certification of its proposed MBEs in an E-mail communication to the UCF administration on December 14, 1994. In any event, consistent with Ms. Tabor's suggestion, at 11:25 AM on December 15, 1994, Mr. Newman telephoned Hubbard's vice-president of estimating and contract administration, Mr. Lindquist, and instructed him to submit an MBE substitute for Margie Woods within 48 hours of the bid opening. At hearing, Ms. Tabor claimed that after her first call from Mr. Newman, she called him back and advised him that substitutions would not be allowed. On December 16, 1994, two days after the bid opening, Hubbard submitted its good faith effort package, along with a cover letter which provided a revised listing of its MBE's and requested that Florida Industrial Electric and C & M Jackson Trucking be substituted for Margie Woods. The value of the substitute MBE's was $51,000 and $8,000, respectively. This submittal was timely. Hubbard contends that Ms. Tabor did not call back to rescind her prior comments about substitution of MBE's. However, from her testimony and the fact that Mr. Puskas, UCF's minority purchasing coordinator, indicated he knew the Regents would not accepts substitutes, it is found she did call back, and that her information was transmitted to Hubbard. UCF's Minority Business Enterprise Advisory Committee met on December 19, 1994 to evaluate Hubbard's good faith effort package. The package was found to be "in compliance" with the MBE requirements of the bid documents but deficient in the areas of advertising, number of letters to MBE subcontractors or suppliers, and other documentation. In that regard, the committee determined that Hubbard should have sent letters to at least one half the MBE's on the list provided to prospective bidders. Nonetheless, the Committee considered Hubbard's substitutes even though Mr. Puskas knew such substitutes would not be and never had been accepted by the Board of Regents. It did not, however, fill out a good faith check list in its consideration of the package because, according to Mr. Puskas, it was satisfied Hubbard was not in compliance with the good faith effort requirements. Notwithstanding this conclusion, on January 4, 1995, Mr. Newman recommended award of the contract to Hubbard. This award was for the Base Bid plus Alternate 1, for a total contract price of $1,914,000. Mr. Murray, of UCF's Small Business Development Center recommended the award only subject to a Regents' review of Hubbard's compliance with the conditions of the contract. When the package was received in Tallahassee, Ms. Tabor, at the request of Mr. Newman, reviewed Hubbard's good faith effort submittal, along with the collateral documents and the MBE compliance checklist completed by UCF. She concluded that for a variety of reasons, Hubbard's good faith effort was unsatisfactory. One reason was that it did not appear that Hubbard's advertisement in the area's biggest newspaper had run for seven days prior to the bid opening, as required by paragraph 1.7.2 of the good faith effort requirements. The evidence on this point presented at hearing indicated that Hubbard submitted advertisements for publication to three newspapers in the Orlando area. Hubbard submitted a letter to the Orlando Sentinel dated December 7, 1994. The Orlando Sentinel is the primary newspaper in central Florida, not the Orlando Times, a minority newspaper targeting the African-American community. However, the affidavit of publication from the Orlando Sentinel was dated December 15, 1994 and received by Hubbard sometime thereafter. Consequently, Hubbard did not have that affidavit to submit at the time it sent in its good faith effort. Accepting that the newspaper advertisements were properly placed, however, this is but one of the several bases for the Board of Regents' determination of a lack of good faith effort. Others included the eleven letters sent to MBE's consistent with the requirements of Paragraph 1.7.3. In that provision, the Regents look for evidence that the bidder solicited specific trades for MBE participation, matching capabilities of MBE's solicited with the requirements of the contract. Of the eleven letters which Hubbard submitted, none but one bore dates or postal marks indicating when the letters were sent. That one letter bore date of December 6, 1994. This documentation was considered insufficient. Another basis for rejection, regarding the letters, was Ms. Tabor's conclusion that in light of the number of available MBE's in the area, in excess of 50 on the list, eleven was not a reasonable number. This is so even though many of the contractors on the list were in specialties not relevant to this project. The Board also determined that Hubbard's evidence of its attempts to follow up on initial solicitations by telephone was insufficient. Hubbard admitted it did not follow up by letter. Mr. Jones, a Hubbard estimator, indicated he contacted several MBE's by telephone because it was quicker and time was short. Hubbard submitted a telephone log in support of its contention but this log was discounted as an acceptable documentation. In addition, the log was considered substantively deficient because of what appeared to be a halfhearted attempt to make contact. This conclusion is considered reasonable. Another reported deficiency is the failure of Hubbard to submit information which would show it attempted to break down contracts into smaller units in order to increase the opportunity to participate by MBE's and to provide them with information sufficient to allow them to bid on time, as is required by Paragraphs 1.7.5 and 1.7.6. This point is well taken. The Board also contends that Hubbard provided no evidence that, as required by Paragraph 1.7.7, it negotiated in good faith with interested MBE's. It appears that Hubbard did, in fact, produce no such evidence, nor did it offer any explanation in its cover letter. It also appears that Hubbard failed to present evidence to indicate it effectively utilized the services of available minority community organizations, contractor organizations, governmental minority business assistance officers, or other similarly directed organizations, as called for in Paragraph 1.7.8. Hubbard's testimony at hearing regarding its disagreement with the Board's appraisal was non-persuasive on this point. In her evaluation of the matters submitted as Hubbard's good faith effort, Ms. Tabor did not review the telephone log submitted by Hubbard. Hubbard claims she had no idea what it did to try to verify whether the MBE's listed were certified by the commission. She did not try to obtain better copies of Hubbard's letter to MBE's seeking bids nor did she have available to her any of the state generated lists of certified MBE's to compare against Hubbard's submittal. There is some evidence that Ms. Tabor did not try to determine if Hubbard's good faith efforts were substantial or merely pro forma. She admitted at hearing she was not sure what the term "pro forma" means. In short, Ms. Tabor did not go much behind the documents submitted to her for evaluation by the Committee at UCF. Nonetheless, considering all the above factors, Ms. Tabor concluded Hubbard's submittal failed to establish either that it met the 21 percent MBE goal or that it made a good faith effort to do so. She also discussed her conclusions with the Board's Director of Capital Programs and its General Counsel who concurred with her analysis that Hubbard's bid was non-responsive and should be rejected. The Chancellor accepted this evaluation and recommended award to Amick, the second low bidder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Board of Regents enter a Final Order in this case awarding BR-403 to Amick Construction, Ltd. RECOMMENDED this 31st day of May, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 31st day of May, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 4. Accepted and incorporated herein. 5. - 7. Accepted and incorporated herein. - 11. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. & 15. Accepted and incorporated herein. Accepted. Not a Finding of Fact but a statement of law. Accepted. Accepted and incorporated herein. - 22. Accepted and incorporated herein. Not a Finding of Fact but a restatement of the contents of a document received in evidence. Not a Finding of Fact but a comment on the evidence. The conclusion of mistake was not proven. 25. - 27. Accepted and incorporated herein. 28. Rejected as contra to the better weight of the evidence. 29. & 30. First paragraph and first sentence of second paragraph accepted and incorporated herein. Second sentence of second paragraph rejected as not supported. 31. - 33. Accepted and incorporated herein. 34. First sentence accepted. Second sentence rejected as not supported. 35. Accepted and incorporated herein. 36. & 37. Accepted. 38. Accepted that the request for publication was submitted in advance of the bid opening but that request does not establish the ad was run. The affidavit dated December 15 was executed after the bids were opened and was not available to the UCF Committee on time. 39. Accepted. 40. & 41. Accepted. 42. First sentence accepted. Second sentence rejected as an effort to transfer the burden of proof. 43. & 44. Accepted and incorporated herein. 45. & 46. Accepted and incorporated herein. 47. & 48. Accepted and incorporated herein. 49. & 50. Accepted and incorporated herein. 51. - 53. Accepted. 54. & 55. Accepted. 56. Irrelevant. 57. & 58. Accepted. 59. Accepted. 60. - 63. Accepted. 64. Not proven. 65. & 66. Accepted. 67. Accepted and incorporated herein. 68. Accepted but not persuasive. 69. & 70. Accepted, but as to 70, there is no evidence of how this is done. 71. - 73. Accepted. 74. & 75. Irrelevant. 76. & 77. Accepted but information and opinion expressed in 77 is irrelevant to the issue in this matter. 78. & 79. Accepted. 80. & 81. Accepted. 82. Accepted but not determinative of any issue. 83. & 84. Accepted. 85. Accepted and incorporated herein. 86. Accepted and incorporated herein. 87. & 88. Accepted. 89. & 90. Not Findings of Fact but Conclusions of Law. FOR THE RESPONDENT: Accepted. - 6. Accepted and incorporated herein. 7. & 8. Accepted. 9. - 14. Accepted. 15. - 18. Accepted. 19. Accepted. 20. & 21. Accepted and incorporated herein. 22. & 23. Accepted. 24. Accepted. 25. & 26. Accepted and incorporated herein. 27. Accepted. 28. & 29. Accepted and incorporated herein. 30. - 34. Accepted and incorporated herein. 35. - 47. Accepted and incorporated herein. 48. - 53. Accepted and incorporated herein. 54. - 56. Accepted and incorporated herein. 57. Accepted. 58. - 60. Accepted and incorporated herein. 61. Accepted and incorporated herein. FOR THE INTERVENOR: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted. & 6. Accepted and incorporated herein. Accepted. - 12. Accepted and incorporated herein, Accepted. Accepted. Accepted and incorporated herein. - 18. Accepted and incorporated herein. 19. - 21. Accepted and incorporated herein. 22. - 29. Accepted and incorporated herein. 30. & 31. Accepted. 32. Accepted and incorporated herein. 33. Irrelevant. 34. Accepted and incorporated herein. 35. Accepted and incorporated herein. 36. & 37. Accepted and incorporated herein. 38. & 39. Accepted. 40. - 43. Accepted. 44. & 45. Irrelevant. COPIES FURNISHED: Kevin F. Foley, Esquire William L. Grant, Esquire Maguire, Voorhis & Wells, P.A. Two South Orange Plaza Orlando, Florida 32801 Jane Mostoller, Esquire Florida Board of Regents 325 West Gaines Street, Suite 1522 Tallahassee, Florida 32399-1950 Eli H. Subin, Esquire Subin, Shams, Rosenbluth, Moran, Losey & Brennan, P.A. 111 North Orange Avenue, Suite 900 Post Office Box 285 Orlando, Florida 32802 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Barbara J. Staros General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
