Findings Of Fact On February 25, 1994, DACS issued an Invitation to Bid ITB/DF-93/94-49 to obtain competitive bids for contractual services involving a biological assessment of approximately 44,334 acres of the Goethe State Forest in Levy County, Florida. The Invitation to Bid provided that the bids received would be opened at 2:30 p.m. on March 21, 1994. The Special Terms, Conditions and Specifications of the Invitation to Bid provided that references submitted by the bidder must be those of the bidder. The General Conditions of the Invitation to Bid provided that the Department may waive any minor irregularity or technicality in the bids received. Bids must be evaluated upon the information furnished with the bid. No other information is used. At the bid opening, Conway was the apparent low bidder at $0.71 per acre for a total of $31,477.14, and Environmental Services was the apparent second low bidder at $1.0438 per acre for a total of $46,275.66. ESP's bid was approximately 47 percent higher than Conway's bid. ESP's bid was responsive to the ITB and ESP is qualified to perform the work required under the ITB. Conway submitted three references with its bid. However, Conway's three references were for work previously performed by Ms. Duever as an individual or as an employee of another company. The references were not those of the bidder, Conway. Linda Duever, the sole officer and director of Conway Conservation, Inc., read the invitation to bid and was aware of the specific requirement for references of the bidder. Ms. Duever thought the Department and the Invitation to Bid emphasized the importance of similar work to that sought by the Department. She did not seek information about the reference requirements, even though she had some doubt about the references she was submitting, thinking she could supplement the bid later if necessary. Nor did she protest the specifications within the timeframes established by Chapter 120, Florida Statutes. Conway is a closely January 26, 1993. However, Conway Conservation, Inc., and Linda Duever are two separate and distinct entities. The evidence demonstrated that the references of the bidders were an important part of the information to consider in the award of this bid since the references indicated that the bidder had the expertise to perform the work required in the bid but also had the financial wherewithal to complete such work and hire the necessary personnel or subcontractors to successfully complete the work required in the Invitation to Bid. In this case, Petitioner's references demonstrated expertise in the areas of knowledge required to complete a biological survey. However, what the references did not show and could not show because they did not reflect business done by Conway, was the financial ability of Conway to adequately complete a biological survey. Such information was very important to the Department and was not a minor irregularity nor technicality which could, or should, have been waived by DACS. Given these facts Petitioner's bid was not responsive to the Invitation to Bid and the Department was correct in rejecting Petitioner's bid and awarding the project to ESP. Finally, Conway is not certified by the Department of Management Services as a minority business enterprise pursuant to Section 288.703(4), Florida Statutes, although the evidence demonstrated that Petitioner could easily be so certified. However, bidder's minority status, either certified or not certified, does not change the result in this case. Status as a Minority Business Enterprise was not a consideration in this bid award. Therefore, Minority Business Enterprise status, or lack thereof, did not and could not have had any impact on the outcome. Moreover, the Department has no authority to change the terms and conditions under which a bid is to be awarded after the bids are opened in order to grant more favorable treatment to a potential minority business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a Final Order in this case dismissing Petitioner's formal protest and awarding the contract for the Project to Environmental Services and Permitting, Inc. DONE AND ENTERED this 7th day of July, 1994, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2121BID The facts contained in paragraphs A, B, D, E, F, G, H, I, K, L, M, O, Q, R and S, of Respondent's Proposed Findings of Fact are adopted in substance insofar as material. The facts contained in paragraphs C, J, N and P of Petitioner's Proposed Findings of Fact were subordinate. The facts contained in paragraphs 1, 2, 4, 5, 8, 9, 10, 12, 13 and 14 of Petitioner's Proposed Findings of Fact are adopted in substance insofar as material. The facts contained in paragraphs 3, 6, 7, 11, 15, 19, 20 and 21 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 17 and 18 of Petitioner's Proposed Findings of Fact were not shown by the evidence. COPIES FURNISHED: Isadore Rommes Senior Attorney Legal Office 515 Mayo Building Tallahassee, FL 32399-0800 Kent A. Zaiser P. O. Box 6045 Tallahassee, FL 32314-6045 Richard Tritschler General Counsel The Capitol, PL-10 Tallahassee, FL 32399-0810 Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level Tallahassee, FL 32399 John T. Lavia, Esquire Landers & Parsons, P.A. Post Office 271 Tallahassee, Florida 32302
The Issue Whether Petitioner's response to invitation to bid 93C-116T was properly rejected.
Findings Of Fact An invitation to bid (ITB) for a contract to supply and for a contract to install acoustical ceiling tiles were solicited by Respondent on October 26, 1992. Bid proposals were filed by four bidders, one of which was the Petitioner. On November 18, 1992, bids were opened and posted, and it was determined that the apparent low bidders were bidders other than Petitioner. The bid submitted by Petitioner was rejected by Respondent on the grounds that Petitioner failed to sign the anti-collusion statement. Thereafter, Petitioner timely filed its bid protest to challenge the rejection of its bid. On December 16, 1992, an informal bid protest meeting was held which resulted in the issuance of a letter rejecting the informal bid protest. Thereafter, the bid protest was referred to the Division of Administrative Hearings, and this proceeding followed. On the first page of the ITB form used by Respondent, the bidder is to insert its name, address, telephone number, and federal employer identification number (or social security number). The bidder is also required to manually sign an anti-collusion statement and to type or print the name and title of the person who signed the statement. Petitioner failed to execute the anti- collusion statement and it did not furnish the information required by this section of the form. The anti-collusion statement is as follows: ANTI-COLLUSION: the signed bidder certifies that he or she has not divulged, discussed or compared his or her bid with other bidders and has not colluded with any other bidder or parties to a bid whatever. (NOTE: No premiums, rebates or gratuities [are] permitted either with, prior to, or after any delivery of materials. Any such violation will result in the cancellation and/or return of materials (as applicable) and the removal from the bid list(s). Also on the first page of the ITB form used by Respondent are certain "General Conditions, Instructions and Information for Bidders", including the following: EXECUTION OF BID: Bid must contain a manual signature of an authorized representative in the space provided above [the signature line for the anti-collusion statement]. Failure to properly sign proposal shall invalidate same, and it shall not be considered for award. ... Also on the first page of the ITB form used by Respondent is the following: AWARDS: In the best interest of the School Board, the Board reserves the right to ... waive any irregularity in bids received ... All awards made as a result of this bid shall conform to applicable Florida Statutes. After Petitioner's bid was rejected, Petitioner's bid was not further evaluated. The uncontroverted testimony on behalf of Petitioner was that its bid for the installation of the tile would have been the lowest bid had it been evaluated. Respondent's past practice has consistently been to reject bids where the anti-collusion statement is not properly executed by the bidder. The rationale for this practice is to safeguard against collusion among bidders. Petitioner's failure to execute the anti-collusion statement was an oversight on the part of Franklin C. Taylor, Jr., the officer who prepared the response on behalf of the Petitioner. Franklin C. Taylor, Jr., executed the "Drug-Free Workplace Certification" and the "Sworn Statement Pursuant to section 287.133(3)(a), Florida Statutes, On Public Entity Crimes" as required by the ITB and attached both certifications to Petitioner's response. Petitioner asserts that it is ready, willing, and able to perform the contract and that the failure to sign the anti-collusion statement was an error that can now be corrected or that can now be waived as a minor irregularity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order which dismisses Petitioner's bid protest. DONE AND ENTERED this 9th day of March, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 9th day of March, 1993. COPIES FURNISHED: Franklin C. Taylor, Jr. Herbert J. Taylor Custom Ceilings of the Palm Beaches, Inc. Post Office Box 9592 Riveria Beach, Florida 33404 Robert A. Rosillo, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard Suite C-302 West Palm Beach, Florida 33406-5813 Dr. Monica C. Uhlhorn, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, Suite C 320 West Palm Beach, Florida 33406-5869 Abbey G. Hairston, General Counsel Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C 302 West Palm Beach, Florida 33406-5813
The Issue The issues in this proceeding are: 1) whether either of the Petitioners' bids were responsive to the Invitation to Bid #298-730-310-W; 2) whether either Petitioner should be awarded portions of the bid; and 3) whether DGS should reject all bids. The parties' positions on these issues are summarized: DGS argues that its intended action to reject all bids is compelled by its rules governing the competitive bid process. It contends that Tel Plus was initially considered non-responsive but was deemed the responsive low bidder on some portions of the bid after it agreed to substitute equipment. DGS contends now that substitution is improper. Inter-tel was consistently considered non- responsive by DGS because of alleged non-compliant data in its technical literature. DGS concedes that, but for this non-compliance, Inter-Tel would be lowest responsive bidder in various categories. Tel Plus argues that its bid was responsive as it proposed to provide equipment previously required in DGS' specifications for other bids. Tel Plus claims that its equipment is equivalent to the equipment now required in the DGS specifications and DGS should have known that. Tel Plus argues that the transposition of numbers in the model number of the equipment was a typographical error which can be corrected after the bid opening. In the alternative, Tel Plus argues that it should be able to substitute equipment as DGS has allowed substitution in the past. Further, the equipment in issue is a small component of the overall system and, comparing its price to the price of the whole, it is a non-material change in the bid. Inter-Tel claims that its bid was responsive as the technical literature it submitted was merely an installation manual providing an optimum range of temperatures provided. Its equipment allegedly meets the specifications, and the company should have been permitted to explain its bid as the prior practice of DGS was to allow such explanations.
Findings Of Fact The Invitation to Bid (ITB) On May 7, 1986, the Department of General Services (DGS) mailed ITB No. 298-370-310W to approximately 100 vendors. The ITB sought bids for various sizes of electronic key telephone systems that would then be available for purchase by state agencies and others entitled or required to participate in the state purchasing system administered by DGS. The ITB specified technical requirements for seven sizes or configurations of systems. An addendum to the ITB divided the state into four geographical service areas. The vendors were invited to bid on any or all of the configurations for each of the service areas; a total of twenty-eight separate awards was, therefore, possible. Specifications in the ITB required a powerline surge protector, a small device which plugs into an electrical outlet and protects the electronic system against voltage surges through a powerline. In the past, DGS bid specifications for similar equipment required a model TII 428 surge protector or equivalent. However, agencies were experiencing extensive and expensive damage to electronic equipment, so DGS' Division of Communications investigated other equipment and determined that a model PTS-120 HP was more efficient. The technical specifications in the ITB here at issue required a PTS-120 HP "or an approved equivalent". (Joint exhibit #1, p. 68, paragraph 3.6) Another requirement of the technical specifications related to the environment for the key service unit (KSU), the heart of the electronic key telephone system. Paragraph 3.7 required that the KSU "... shall be fully operable during the following environmental conditions: Temperature 40 degrees F to 100 degrees F (4 degrees C to 38 degrees C) Relative Humidity 20 percent to 80 percent (Joint Exhibit #1, p. 69) These environmental conditions are significant because the KSU is heat sensitive and the equipment is commonly installed in closets or equipment rooms that are neither vented nor climate-controlled. The ITB included at least two provisions relating to the bidder's responsibility to provide technical literature. Paragraph 5 of the General Conditions provides: MANUFACTURERS' NAME AND APPROVED EQUIVALENTS: Any Manufacturers' names, trade names, brand names, information and/or catalog numbers listed in a specification are for information and not intended to limit competition. The bidder may offer any brand for which he is an authorized representative, which meets or exceeds the specifications for any item(s). If bids are based on equivalent products, indicate on the bid form the manufacturer's name and number. Bidder shall submit with his bid, cuts, sketches and descriptive literature and/or complete specifications. Reference to literature submitted with a previous bid will not satisfy this provision. The bidder shall also explain in detail the reason(s) why the proposed equivalent will meet the specifications and not be considered an exception thereto. The State of Florida reserves the right to determine acceptance of item(s) as an approved equivalent. Bids which do not comply with these requirements are subject to rejection. (emphasis added) Included in the Special Conditions, page 6, is this provision: Technical Literature Technical literature is a requirement of this bid to accommodate an evaluation to assure products offered meet or exceed the specification attached hereto. Bidder shall furnish with his bid, for all equipment offered, technical information consisting of two sets of manufacturers specifications, graphs, charts, sketches, photographs, circuit diagrams, instruction manuals, station user guide and attendant user guide pamphlets and equipment lists. Failure to provide such data with the bid may result in rejection of the bid. (Joint Exhibit #1) There were no questions or protests from the vendor community regarding the change in specifications related to the powerline surge protector. (transcript, p. 82) Approximately fifteen bids were received and were opened by DOS on July 7, 1986. (transcript, p. 20) Tel Plus Bid Tel Plus Florida, Inc. (Tel Plus) bid on each of the seven configurations for the four service areas. The equipment list provided for each configuration in its bid consistently listed "T11248 Surge Protector", rather than the PTS 120 HP called for in the ITB specifications. Although Tel Plus submitted some technical literature, (its general description, installation and service manual for "Tel Plus 816 Electronic Key Telephone System"), no technical literature nor explanation was submitted for the surge protector. (Joint exhibit #2, Inter-Tel Exhibit #1) Tel Plus intended to include the TII 428 surge protector throughout its bid; the model designation "248", was a typographical error. (Transcript, p. 129-133) Inter-Tel Bid Like Tel Plus, Inter-Tel bid each of the seven configurations, state- wide in all four service areas. (Joint Exhibit #3) Inter-Tel's technical response to ITB specification 3.7 relating to KSU operating temperatures stated: Comply. Environmental conditions listed are assumed to be for KSU interior. Installation manuals list ambient conditions with free air circulation. (Joint Exhibit #3, Technical response, p. 2.) Inter-Tel does not have a document containing full systems specifications. For its technical literature back-up it submitted several pages from an installation manual and several volumes of its installation and field maintenance manual. (Transcript, p. 187-188; Joint Exhibits #3 and 9). Those submittals provide in pertinent part: Environmental Requirements 3.05 The environmental requirements for the KSU are as follows: Requirements In Operation Temperature 32 to 80 F 0 to 26.5 C The manuals are guides to service personnel and contain recommendations to installers for climate conditions. The manuals do not include specifications of the temperature limits to which the equipment can be subjected and still operate. While some testimony was provided at the hearing that the equipment could operate at the extremes described in ITS specification 3.7, that information was not included anywhere in Inter-Tel's bid. (Transcript pp. 182-183, Joint Exhibits #3 and 8). Review and Disposition of Bids by DOS After opening, the bids were reviewed by the staff of the Division of Purchasing, Bureau of Procurement, and were then sent to the Division of Communications for a technical evaluation. The Division of Communications had prepared the technical specifications for the ITB in this case. (Transcript pp. 18, 24.) In his review of the bids, Roger Fisher, a communications engineer in the Division of Communications, found a problem with some of the vendors who submitted other than the designated PTS 120 HP surge protector on their equipment list and failed to provide technical literature to verify that it was "equivalent". He called approximately ten vendors and gave them the option of sending the technical literature or sending a letter stating that the specified equipment would be provided at no additional cost. (Transcript pp. 42, 43.) In response to the phone call, Jim Begue of Tel Plus sent a letter dated August 28, 1986, stating that the PTS powerline surge protector would be provided at the same prices quoted in his company's bid. (Joint Exhibit #2B) Inter-Tel was not contacted with regard to the discrepancy between its response, "comply", and its technical literature addressing temperature ranges for operation of the KSU. Inter-Tel's bid was determined to be non-compliant. On September 23, 1986, the bid tabulations were posted and Tel Plus was designated the lowest responsive bidder in eighteen of the twenty-eight configurations. Inter-Tel was the lowest bidder on eighteen of the twenty-eight configurations, but as indicated above, was considered non-responsive. (Joint Exhibit #6) The posting was withdrawn on September 24, 1986, because of some question with regard to the compliance of Tel Plus and other bidders' description of the "hands-free" features of their systems. It was determined that the systems were in compliance with the ITB. (Joint Exhibit #6 and #7) On October 3, 1986, a second list was posted indicating that Tel Plus was the lowest responsive bidder in twenty-one of the twenty-eight configurations. Inter-Tel was still the lowest bidder in eighteen configurations and was still deemed non-responsive in all configurations. (Joint Exhibit #8) Once more, DGS purchasing and communications' staff evaluated the process, and after meeting with the department attorney, decided that the contacts resulting in change of bid response were inappropriate. (Inter-Tel Exhibit #3, pp 12-13). The re-evaluation eliminated all but one responsive bidder. The bid was deemed non-competitive. On October 28, 1986, certified letters were sent to the bidders from William Monroe, Director of the Division of Purchasing, advising that all bids in response to Bid No. 298-730-310-W were being rejected pursuant to General Condition #8 of the ITB (reserving the right to reject all bids or waive minor irregularities or technicalities in bids received). The letter states, in pertinent part: .... Bidder confusion regarding ITB Protection, has resulted in non-responsive bids and unintentional procedural irregularities (Tel Plus Exhibit #1) Both Tel Plus and Inter-Tel filed timely protests of that intended action. Were the Bids Responsive? A small, inexpensive component in comparison to the entire electronic telephone system, the surge protector is nonetheless a highly significant piece of equipment, as it reduces the incidence of expensive damage to the larger system. Assuming that the inadvertent transposition of model numbers could be ignored, Tel Plus failed to provide with its bid any technical literature to substantiate that the surge protector it proposed was equivalent to the PTS 120 HP specified in the ITB. The company was unjustifiably presumptuous in its expectation that DGS would consider the two as equivalent since the TII 428 had been the specified model in the past. On the contrary, the change should have alerted bidders to some problem with the previous model. Reason dictates that if the two models were deemed "equivalent" by DGS the change in specifications would not have been necessary. The ITS General Conditions, paragraph 6. provides access prior to bid opening by vendors with questions regarding conditions and specifications: 6. INTERPRETATIONS: Any questions concerning the conditions and specifications shall be directed in writing to this office for receipt no later than 10 days prior to bid opening. Inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. This provision was not utilized by Tel Plus. The range of operating temperatures for the KSU is also significant, given the unit's sensitivity to heat and the adverse conditions sometimes existing at the installation site. Inter-Tel apparently also did not avail itself of the Interpretation's clause but rather attempted to clarify what it perceived as an unclear use of the specification terms, "environmental conditions". Its bid response qualifying its system's compliance only created additional confusion. Within the special conditions of the ITB, the purpose for requiring technical literature is unambiguous. See paragraph 5, above. The literature provided by Inter-Tel was in clear conflict with the ITB specification. Both the Inter-Tel and Tel Plus bids suffered from the same basic infirmities: both bids included facially obvious material conflicts with the specifications; both bids failed to explain why those conflicts did not exist. Tel Plus was initially an opportunity to correct its bid.
The Issue Whether Petitioner's protest challenging the Department of Transportation's Notice of Intent to Award Contract No. E-6A14, FIN Project No. 251999-1-32-01/251999-1-52-01, to A-1 Duran Roofing, Inc., should be sustained in whole or in part.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement the stipulations of fact set forth in the parties' Joint Pre-Hearing Stipulation: 3/ The District VI Warehouse. The District VI (District) warehouse is used to store archived records, paper supplies, and surplus equipment. In addition, it houses the District's divers and their gear. The District Warehouse Roof Since at least the time of the first solicitation, the District warehouse roof has had a ponding problem and been in disrepair. The condition of the roof has deteriorated to such an extent that there is now an urgent need to replace it. The current roof has five overflow drains or scuppers. The Department has determined that additional scuppers are necessary to provide adequate drainage. The List of Interested and Prequalified Contractors When the District warehouse roof replacement project was originally advertised in 1997, 25 contractors, including Petitioner, A-1, Zurqui, Grace, ART, and Southern Coast Enterprises, requested that the Department send them information about the project. The Department compiled a list containing these 25 contractors' names, addresses, and telephone and fax numbers. The Department subsequently prequalified each of these 25 contractors. Petitioner Pedro Glaria is Petitioner's president. He is now, and has been since 1981, licensed in the State of Florida as both a general contractor and a professional engineer. Petitioner currently has two contracts with the Department, the dollar values of which are $140,000.00 and $110.00.00. Both contracts were awarded during the summer of 2000. They each require Petitioner to provide "roadside mowing" and "roadside litter pickup" services. Since its incorporation in 1989, Petitioner has had a total of 10 to 12 contracts with the Department, at least one of which involved roofing work. At no time has the Department indicated to Mr. Glaria that it has been dissatisfied with Petitioner's work. The Third Solicitation In the third solicitation, as in the first two solicitations, the District warehouse roof replacement project was advertised as a design-build project (involving both design and construction services). The Notice of Informal Bid (No. 6012DS) that the Department used to solicit bids contained the following "work description," "evaluation criteria," and "project information": Work Description Sealed written bids are requested from licensed roofing contractors, general building contractors, professional architectural engineers or professional consultant services for the purpose of a design-build project consisting of roof replacement for the District warehouse building located at the District office complex, 1000 Northwest 111th Avenue, Miami, Florida. The bidder shall provide all labor, materials, supplies, travel, consultant inspection services, shop drawing reviews to design, and furnish plans and specifications necessary to perform all work required for this project. Evaluation Criteria The Florida Department of Transportation (FDOT) will evaluate the technical bid along with the price bid at the same time. The Department may award this contract to the firm whose proposal meets the needs of the Department as outlined in the technical bid criteria, and to the responsible, responsive bidder submitting the lowest total bid. Technical Bid Will Consist of the Following Experience and qualifications of personnel Plans and specifications. 3). Design Warranty Contract time Price Bid 3). Certified Minority Business Enterprise (CMBE) Participation . . . Project Information ESTIMATED BUDGET AMOUNT: N/A With respect to a protest of the specifications contained in an Invitation to Bid or in a Request for Proposals, the Notice of Protest shall be filed in writing within seventy two (72) hours after the receipt of notice of the project plans and specifications or intended project plans and specifications in an Invitation to Bid or Request for Proposals." A formal written protest stating with particularity the facts and law upon which the protest is based and in substantially the same form as a petition in accordance with Rule 60-4.012, F.A.C., shall be filed within ten (10) days after filing of the notice of protest. The ten (10) day period includes Saturdays, Sundays and Legal Holidays; provided, however, if the last day is a Saturday, Sunday or Legal Holiday the period shall run until the end of the next day which is neither a Saturday, Sunday or Legal Holiday. Any person who files an action protesting an award shall post with the Department, at the time of filing the formal written protest, a bond payable to the Department in the amount equal to one percent (1%) of the Department's estimate of the contract amount for the purchase requested or five thousand dollars ($5,000.00), whichever is less, which bond shall be conditioned upon the payment of all costs which may be adjudged against him in the Administrative hearing in which the action is brought and in any subsequent Appellate Court Proceedings. In lieu of a bond, the Department may accept a cashier's check or money order in the amount of the bond. The protest must be filed with The Department of Transportation, Clerk of Agency Proceedings, 605 Suwannee Street, Tallahassee, Florida 32399-0450 THE DEPARTMENT RESERVES THE RIGHT TO REJECT ANY OR ALL PROPOSALS RECEIVED. Exhibit "A" (Attachment V) to the Notice of Informal Bid was the "Scope of Services for Design Build of Replacement Roof at the District Warehouse Building," Section 2.5(a) of which provided as follows: Bidder shall furnish plans and specifications that comply with the South Florida Building Code, Permits Office of the Department of Management Services, and the State Fire Marshall's Office, including but not limited to the following: The design of the roof shall provide for the installation of overflow drains or scuppers in addition to the existing scuppers to prevent an accumulation of water. Petitioner's technical bid, which was prepared by Mr. Glaria, contained a roof design that did not provide for the installation of the additional scuppers required by Section 2.5(a) of Exhibit "A." In Mr. Glaria's professional opinion, these additional scuppers were unnecessary for the design of the roof to comply with the South Florida Building Code. (Petitioner, however, did not file a protest challenging the bid specifications.) By not incorporating the additional scuppers in its design of the roof, Petitioner was able to submit a price bid lower than it could have offered had its design been in compliance with the requirements of Section 2.5(a) of Exhibit "A." All three members of the Department's Technical Review and Awards Committee found Petitioner's technical bid to be non- responsive because it deviated from the requirements of Section 2.5(a) of Exhibit "A.". Had the Department not rejected the Department's technical bid on the grounds that it was non-responsive, Petitioner would have had an unfair competitive advantage over those bidders whose design of the roof included the additional scuppers required by Section 2.5(a) of Exhibit "A." Petitioner's Formal Protest of the Department's announced intention to contract with A-1 contained the following argument concerning the Department's determination that Petitioner's technical bid did not "comply with design criteria for overflow scuppers": FDOT's Technical Panel determined that SPEC failed to comply with the design criteria for overflow scuppers because SPEC did not provide for additional scuppers. . . . The roof already contains five scuppers. As engineer of this design- build project, SPEC determined that additional scuppers were not necessary for proper drainage of the roof. Rather, the roof only necessitated the installation of crickets between the existing scuppers to facilitate drainage of water between the scuppers. The drawing submitted with SPEC's bid reflects the location of the existing scuppers and the use of the crickets to drain any water on the roof. A-1's drawing reflects the use of additional scuppers, but the location of these additional scuppers cannot assist water drainage as the scuppers are located above the crickets, and therefore above roof level, thereby losing any effectiveness. . . . The additional scuppers provided by A-1 will not prevent the accumulation of water as required by section 2.5 and will only create unnecessary expenditure for FDOT. SPEC's design for the drainage of water from the roof is superior to that of A-1, complies with the requirements of the bidding documents and does not require unnecessary expenditure of funds. Accordingly, SPEC should be awarded the project. The Department's December 17, 1998, Notice of Intent Not to Award (Re: Informal Bid No. 6012DS) stated, in pertinent part, as follows: It is the intent of the Department of Transportation to not award the above Contract. This contract will be re- advertised at a later date. . . . ALL BIDS HAVE BEEN REJECTED On January 4, 1999, Petitioner's attorney, Alejandro Espino, Esquire, sent a letter to Department Assistant General Counsel Brian McGrail, which read as follows: This letter confirms our telephone conversation today wherein you stated that the Florida Department of Transportation ("FDOT") rejected all bids on the above referenced project because FDOT intends to rewrite the specification for the mansard roof wood replacement and because FDOT has no available funding for the project. However, you stated that FDOT will not provide a written explanation to SPEC Incorporated or any other bidder for the rejection of the bids for the project. If you believe that the above is not an accurate summary of our conversation, please contact me at your earliest convenience. Best regards. Mr. McGrail responded to Mr. Espino by letter dated January 4, 1999, which read as follows: I am in receipt of your letter this morning regarding our telephone conversation concerning the captioned matter. In response to your rendition of our conversation, I must clarify that I expressed my understanding that the specifications for the project will be reviewed, which may include the issues raised in the protest about the bid specifications, before any further action will be taken by the Department. However, the Department's decision to reject all bids is due to the unavailability of funding for this contract at the present time. I cannot speak to the future of the project with any degree of certainty, nor represent any to you or your client. This is a matter strictly for District VI to decide, and I am not involved in that decision making process. The Department will defend the decision to reject all bids based on the lack of available funding. I refer your attention to Attachment II of Informal Bid #6012DS, Contractual Obligation, Section 1.10 through 1.13. In particular, Cancellation Privileges, regarding the Department's obligations under the Notice of Informal Bid and subsequent agreement shall be subject to and contingent upon the availability of monies appropriated for this contract. Additionally, I am sure that you are aware that the bid documents clearly and repeatedly state the Department's reservation of rights to reject any and all bids for this bid letting. Based on the foregoing, it is clear that the Department's action in rejecting all bids is appropriate under Florida law, if not required, due to the lack of available funds at the present time. If Spec Inc. intends to p[rotest] the Department's decision to reject all bids, I feel it is my responsibility to advise you that the Department will seek any and all costs and attorney fees to which it may be entitled against the protest bond filed in this case. If however, Spec Inc. decides to withdraw the current protests against the intent to award filed on September 28, 1998, and the rejection of all bids filed on December 22, 1998, the Department will agree to return the protest bond in full. After you have had an opportunity to review this matter with your client, please advise at your earliest convenience how Spec Inc., wishes to proceed. Thank you for your cooperation in this matter. I look forward to a prompt response, as the hearing date is approaching rapidly. Mr. Glaria "realized that [Petitioner was] going to have a hard time [in its bid protest] to overcome the issue of lack of funding." In addition, he had the "hope that [Petitioner] would [have the opportunity to] bid the project again for the fourth time." Accordingly, he authorized Mr. Espino to file, on behalf of Petitioner, the following Notice of Voluntary of Dismissal of Formal Protest, dated January 11, 1999: Petitioner, SPEC Incorporated, hereby withdraws its formal protest, dated October 18, 1998, of the Florida Department of Transportation's notice of intent to award Informal Bid No. 6012DS, Financial Project Nos. 2519993201/25199915201, Dade County, to A-1 Duran Roofing, Inc. Upon agreement of counsel for the parties, SPEC Incorporated's bid protest bond will be returned to it. Mr. Espino, in addition, sent the following letter, dated January 11, 1999, to Mr. McGrail: Based on the Florida Department of Transportation's ("FDOT") representation that it rejected all bids for Informal Bid No. 6012DS, Financial Project Nos. 2519993201/25199915201, Dade County, because of the unavailability of funds and because of necessary amendments to the project specifications, SPEC Incorporated hereby withdraws its formal protest of FDOT's notice of intent to reject all bids. As we discussed earlier, FDOT will return SPEC Incorporated's protest bond thirty days after FDOT files . . . the final order in this matter. If you have any questions or comments, please do not hesitate to contact me. Fourth Solicitation The Project is funded through appropriations made by the Legislature in the fixed capital outlay category. 4/ Fixed capital outlay funds are subject to reversion if not obligated (through the execution of a contact or the issuance of a notice of intent to award a contract) within 19 months of their appropriation by the Legislature. In mid-January of 2001, Brenda Garner, the manager of the Department's Fixed Capital Outlay Program, advised Ms. Lyons that, if not obligated by February 1, 2001, a portion of the funds ($45,000.00) appropriated for the Project would revert. Ms. Lyons (who had not been involved, as the District's contract administrator, in the first three solicitations) quickly proceeded (in a day's time) to assemble the documents needed to solicit bids for the Project. These documents included detailed plans and specifications that the District's senior structural engineer and senior project manager had prepared, at Ms. Lyons' request, following the third solicitation, as well as "boilerplate" that the Department uses for non-design-build fixed capital outlay projects like the Project. Ms. Lyons determined that it was unnecessary to advertise for bids and that the Department only needed to solicit bids from three contractors. She selected these three contractors from the list of interested and prequalified contractors that the Department had compiled in the first solicitation. As Ms. Lyons was aware, each of the three contractors she selected (A-1, Zurqui, and Grace) was a Certified Minority Business Enterprise (MBE). She intentionally selected MBE contractors because the District was "trying to meet an MBE goal." Ms. Lyons had some professional familiarity with the three MBE contractors she selected. A-1 had just completed another roofing project for the District, and Zurqui and Grace were performing construction work at the District office complex. Ms. Lyons' decision to not include Petitioner among the three contractors asked to submit bids was not made in bad faith. Inasmuch as the Department was "in a big hurry to get that project done" she did not ask more than three contractors to submit bids. Ms. Lyons required each of the three contractors to first provide proof that it was a licensed general contractor qualified to work on the Project. After receiving such proof, Ms. Lyons then asked the three contractors to bid on the Project. A-1, Zurqui, and Grace submitted their bids on January 25, 2001. The Technical Review and Awards Committee met on January 26, 2001, to review the bids. All three bids were deemed to be responsive. A-1's bid of $58,300.00 was the lowest of the three bids. Neither Zurqui nor Grace protested the Department's proposed decision, announced in its January 26, 2001, Notice of Intent to Award, to award the contract for the Project to A-1. Only Petitioner, which had not been invited to submit a bid and had first learned of the fourth solicitation when Mr. Glaria saw the Notice of Intent to Award while at the District office complex on January 26, 2001, filed a protest.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a final order rejecting in its entirety Petitioner's protest of the Department's announced intention to award Contract E-6A14 to A-1. DONE AND ENTERED this 5th day of June, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2001.
The Issue The issues in this case are: a) whether White Construction Company, Inc. timely filed its requests for hearing with the Department of Transportation in response to notices of intent to suspend White's certificate of qualification because of alleged delinquencies on State Project Nos. 97770-3305 and 97770-3306 and; (b) if not, whether the doctrine of equitable tolling, waiver, estoppel or other legal or equitable principles apply under the facts of this case such that White is entitled to a formal hearing on the merits of the department's determination of delinquency.
Findings Of Fact White Construction Company, Inc. (White) is a contractor prequalified to bid on Department of Transportation (Department) construction projects in excess of $250,000. It was incorporated in 1951 and maintains a home office in Chiefland, Florida. White was the successful bidder on three projects that are included within the Department's Seminole Expressway Project in Seminole County which is being funded and supervised by the Department's Turnpike Office. The projects are three contiguous segments and are identified as State Project Nos. 97770-3304, 97770-3305 and 97770-3306. The Seminole Expressway Project consists of twelve separate projects. HNTB Corporation is the Department's Resident Engineer for Project Nos. 97770-3304 and 97770-3306 and maintains an office at 2927 US 17-92 in Sanford. ICF Kaiser Engineers is the Resident Engineer for Project No. 97770-3305 and maintains an office in a trailer at the job site. The Resident Engineers are the main liaison between White and the Department on the Project. The Department's Turnpike Office maintains a local office at 112 Beider Avenue in Casselberry. The Resident Engineers are supervised from that location by Mr. Gary Geddes, the Department's Program Manager, in conjunction with Mr. Ray Daniel, an Area Engineer who is employed by Post, Buckley, Schuh and Jernigan, which is under contract with the Department. The Resident Engineers, though employed by private consultants, serve as the Department's representatives and are delegated the title of Engineer of the Project for the Department. On July 30, 1993, the Department issued notices of intent to suspend White's certificate of qualification because of alleged delinquencies in White's performance on State Project Nos. 97770-3305 and 97770-3306. The Department's notices of intent to suspend were received by White at its Chiefland offices on August 3, 1993. Each notice contained the following language: Pursuant to Florida Administrative Code Rule 14-23 and in accordance with this determination, we intend to suspend your Certificate of Qualification and those of your affiliates. This suspension will become conclusive final agency action unless you request an Administrative Hearing within ten (10) days of receipt of this notice. Your request for a hearing shall be in writing and shall be filed with the Clerk of Agency Proceedings, Mail Station 58, Haydon Burns Building, 605 Suwanee Street, Tallahassee, Florida 32399-0450 within ten days of receipt of this notice. A copy of the request for hearing shall also be provided to the State Construction Engineer, Mail Station 31, Haydon Burns Building, 605 Suwanee Street, Tallahassee, Florida 32399-0450. The request for hearing shall include: The name and address of the party making the request; A statement that the party is requesting a formal or informal proceeding; and All specific facts and circumstances which the Contractor believes legally excuses the unsatisfactory progress on the project. A request for hearing is filed when it is delivered to and received by the Clerk of Agency Proceedings. If a hearing is timely requested after the receipt of the notice of the intent, the hearing shall be held within 30 days after receipt by the Hearing Officer of the request for hearing in accordance with 337.16 of the Florida Statutes. In addition to a request for an Administrative Hearing and in accordance with Article 8-8.2 of the Special Provisions of this project, you are hereby given opportunity to request an extension of allowable contract time in an amount of cause progress on this contract to be acceptable or to submit other information to show that progress of work is not delinquent. (Petitioner's Exhibit #7, emphasis added) White forwarded the two Notices of Intent to its attorneys, Cummings, Lawrence and Vezina, P.A. On August 11, White's attorneys sent to Mr. Burney Keen of White Construction, via Federal Express Priority Morning Delivery, a package containing originals and copies of requests for formal hearing and for contract time extensions for both projects, with written instructions to have the requests executed and delivered to the Clerk of Agency Proceedings and James Lairscey, via Federal Express, and to hand deliver copies to the Project Engineers no later than August 13. The package from White's attorneys did not arrive at White's offices until late in the afternoon on August 12, when Mr. Keen was no longer in the office. Mr. Keen did not receive the package from White's counsel until the morning of August 13. Notwithstanding the Priority Delivery designation, Federal Express delivery to White's Chiefland office occurred between 3:00 p.m. and 5:00 p.m. Mr. Keen instructed his secretary, Patti Cook, to have the documents executed by an officer of White, and to have them hand-delivered to the Department's Resident Engineers and delivered to the Department's Tallahassee offices by Federal Express, in accordance with counsel's instructions. On Friday afternoon, August 13, 1993, White hand-delivered its request for hearing, along with its requests for contract time extension, to the Department's two Resident Engineers. On that same day, White sent out a package containing copies of these documents by Federal Express addressed to Mr. J. Lairscey, 605 Suwanee Street, MS 58, Tallahassee, Florida 32399. Mr. Keen and Ms. Cook both believed that J. Lairscey was the Clerk of Agency Proceedings. This is not surprising since at his deposition, J. Lairscey, who is the State Construction Engineer for the Department, did not know who the Clerk of Agency Proceedings was either. Standard operating procedure for the Project established by the Department at the preconstruction conference required that all correspondence from White be sent to the Department's Resident Engineers. Mr. Keen believed it to be of utmost importance to timely hand-deliver the requests for formal hearing to the Department's Resident Engineers. Although White had filed notices or requests with the Department Clerk in the past, this was Mr. Keen's first experience with the delinquency filing procedures. The package arrived at the Department's offices in Tallahassee on Saturday, August 14, 1993, and was delivered to Mr. Lairscey's office, MS 31, and not MS 58 (which is the Clerk of Agency Proceedings' Mail Station and office) on the morning of August 16, 1994. The package delivered to ICF Kaiser contained an original letter from White addressed to Michael Landry, which requested an extension of time on Project No. 97770-3305 and referred to an enclosed request for hearing. The package also contained an original letter addressed to: Clerk of Agency Proceedings, 605 Suwanee Street, MS 58, Tallahassee, Florida 32399. The letter to the Clerk requested a formal hearing in response to the Department's July 30th Notice of Intent and referred to three large appendices which were enclosed. Upon its receipt on August 13, 1993, a secretary and the office engineer at ICF Kaiser's office recognized that they received misdirected originals of important legal documents. The office engineer and secretary telephoned Ray Daniel, the Department's Area Engineer, at the Department's office in Casselberry and told him that they had received from White what looked like an original legal document, which they did not think they were supposed to have. They questioned whether the documents should be redirected to the Department. Mr. Daniel instructed them not to send the documents to him. Mr. Daniel knew that requests for hearing should be sent to the Clerk of Agency Proceedings in Tallahassee, but was not sure that a mistake was made and took no action regarding the request for hearing. The documents were filed away at ICF Kaiser until August 27, 1993, when Michael Landry followed up an inquiry from Ray Daniel and had the originals forwarded to the Turnpike's Casselberry office. The package delivered to HNTB Corporation also on August 13 contained an original letter from White addressed to Ralph Burrington which requested an extension of time on Project No. 97770-3306 and referred to an enclosed request for hearing. Like its counterpart, this package also contained an original letter addressed to: Clerk of Agency Proceedings, 605 Suwanee Street, MS 58, Tallahassee, Florida 32399. The letter to the Clerk requested a formal hearing in response to the Department's July 30th Notice of Intent and referred to three large appendices which were enclosed. The Resident Engineer at HNTB, Mr. Ralph Burrington, did not note that the documents were originals and filed them away. Mr. Burrington's normal procedure is to forward such documentation by facsimile to the Department's Casselberry office, but in this instance he feels he made a mistake. The package delivered to the Department's Tallahassee offices on Saturday, August 14, 1993, contained one signed photocopy of the requests for formal hearing for Project No. 97770-3305 addressed to the Clerk of Agency Proceedings, unsigned copies of the requests for formal hearing in Project Nos. 97770-3305 and 97770-3306 addressed to the Clerk of Agency Proceedings, as well as copies of the request for time extension for Project Nos. 97770-3305 and 97770-3306 and appendices. The documents were received by J. Lairscey on Monday, August 16, 1993, and were filed away until they were inspected on August 27, 1993, as a result of an inquiry by Ava Parker, a Department attorney. Sometime before August 27, 1993, Ava Parker, as a result of an inquiry from Gary Geddes, the Department's Program Manager, began to investigate whether White had filed its requests for hearing. Ms. Parker first checked with the Clerk of Agency Proceedings and was informed that nothing had been filed at that location. Ms. Parker then contacted Charles Peterson, the Department's Area Construction Engineer, to discern whether White had filed a request for hearing. Mr. Peterson searched his files and the Department's central files; he questioned various people in the Department's Tallahassee office and telephoned Ray Daniel in the Department's Casselberry office. Ray Daniel told Mr. Peterson that he had no knowledge concerning White's requests for hearing and no idea where they were. Mr. Daniel in fact knew at that time that White had delivered its requests for hearings to both Resident Engineers on August 13, based upon previous conversations with the Department's Resident Engineers and office staff. Mr. Peterson later discovered from Jimmy Lairscey that Mr. Lairscey had received the requests for hearing but they had been filed away. On Friday, August 27, 1993, Joe Lawrence, counsel for White, telephoned Ava Parker to discuss consolidation of the hearings and discovery. Ms. Parker advised White's counsel that no requests for hearing had been filed with the Clerk in response to the two Notices of Intent. Ms. Parker knew prior to her conversation with counsel for White that the requests had not been filed with the Clerk of Agency Proceedings, yet made no attempt to contact White or its counsel to notify them that the Clerk had not received the request. On Monday, August 30, 1993, copies of the requests for hearing were delivered to the Department's Tallahassee offices from counsel for White, via Federal Express addressed to Ava Parker and Clerk of Agency Proceedings, Florida Department of Transportation, 605 Suwanee Street, MS 58, Haydon Burns Building, Tallahassee, FL 32399-0450. The documents were received by Ms. Parker who delivered the requests for hearing to the Clerk and they were stamped in by the Clerk of Agency Proceedings on that same date. The Clerk of Agency Proceedings' function is to docket and maintain a record of documents and to send a copy of any requests for hearing in contractor suspension cases to the legal section and to Jimmy Lairscey. The Department's standard procedure after receipt of requests for hearing and contract time extension is to have the documents reviewed by Jimmy Lairscey and the Project Resident Engineer to determine whether the time extension should be granted. The legal section then determines whether to send the matter to the Division of Administrative Hearings. The Department's purpose in soliciting a request for contract time extension in conjunction with its Notice of Intent to Suspend is to afford the contractor the opportunity to cure the delinquency. The Department, prior to taking action on the request for hearing, reviews the time extension request to determine whether it may obviate the need for further delinquency proceedings. The Department's Resident Engineers are primarily responsible for evaluating and making recommendations concerning time extension requests. It is generally after the Department makes a determination concerning the appropriateness of the request for contract time that it proceeds to act upon the request for hearing. The Department did not deny White's request for contract time extension until August 30, 1993, the same date that White's requests for hearing were docketed in by the Clerk. The Department's review, analysis and decision can take up to five months. The delay in docketing the requests for hearing did not, therefore, delay the process. There was no prejudice to the Department by White's delivery of its requests for hearing to the Department's Resident Engineers on August 13, 1993, rather than to the Clerk of Agency Proceedings. There was no harm to the Department by Jimmy Lairscey's receipt of White's requests for hearing on Monday August 16, 1993, rather than the Clerk receiving it on Friday, August 13, 1993. The Department was aware, prior to and on August 13, 1993, that White disputed the Department's determination of delinquency on State Project Nos. 97770-3305 and 97770-3306. The Department expected White to file requests for formal hearing challenging the Department's determination of delinquency on State Project No. 97770-3305 and 97770-3306. White had verbally notified the Department prior to August 13 that it was challenging the delinquency notices. No evidence established any prejudice or harm to the Department from the Clerk's receipt of White's requests for hearing on August 30, 1993 rather than August 13, 1993. White will be severely prejudiced if not afforded a hearing, and therefore automatically declared delinquent, because it will be precluded from bidding and acquiring much needed additional work. White's work is primarily for the Department, in all phases of highway construction. At the time of hearing White had Department contracts of approximately $100 million, which contracts carry over a several year period, and it employed approximately 500 people. No culpability or blame can be ascribed to either party in the series of gaffes surrounding the filing of White's requests for hearing. Mr. Keen, a novice to the process, thought he was doing the right thing by assuring timely filing with the Resident Engineers, who had always received other correspondence related to the Project. Mr. Daniel, who was immediately informed that the original documents were filed in the wrong place, did nothing to correct the error, but neither did he deliberately frustrate the process (as argued by White) since the message he received about some original legal documents was ambiguous. Mr. Lairscey had no idea that his packet was intended for the Agency Clerk; moreover, he had no idea who the agency clerk was. Under these circumstances, and in the absence of any more than mere inconvenience to the Department, it is patently unfair to deny White its hearing on the merits.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED that the Department enter its final order granting a formal hearing to White Construction Co., Inc. on the substantive issue of whether it should lose its qualification to bid. DONE AND ENTERED this 29th day of August, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 August, 1994. APPENDIX The following constitutes specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Adopted in paragraph 1. - 4. Adopted in substance in paragraph 2; otherwise rejected as unnecessary and immaterial. Adopted in part in paragraph 10; otherwise rejected as unnecessary. Adopted in substance in paragraph 4. Adopted in paragraph 30. Adopted in paragraph 4. Except as to the conclusion that the notice was not filed with the clerk on August 13, rejected as contrary to the greater weight of evidence, considering the testimony of Keen in its entirety. Adopted in substance in paragraphs 5, 8, 9, 10 and 12. Rejected as argument and conjective unsupported by the weight of evidence. Adopted in substance in paragraph 5. Adopted in part in paragraphs 6-9, otherwise rejected as immaterial. Adopted in part in paragraph 9; otherwise rejected as statement of testimony or unnecessary. Adopted in substance in paragraph 13. 16.-18. Adopted in paragraphs 14 and 19; otherwise rejected as unnecessary. Adopted in paragraph 21. Adopted in substance in paragraph 22. Adopted in substance in paragraph 16; otherwise rejected as unnecessary. Adopted in substance in paragraph 18. Adopted in substance in paragraph 20. Adopted in part in paragraphs 23-26; otherwise rejected as unnecessary. Adopted in substance in paragraphs 27 and 29. Rejected as contrary to the weight of evidence. 27.-28. Adopted in part in paragraph 36; otherwise rejected as argument or unnecessary. White clearly proved it will be severely prejudiced, even if it is not "put out of business". 29. Rejected as contrary to the weight of evidence (as to prejudice to the agency). 30.-31. Rejected as unnecessary. 32. Rejected as contrary to the weight of evidence; more commonly, the agency rules on the extension request first. Respondent's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 8. Adopted in paragraph 9. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraph 12. Adopted in paragraph 13. Adopted in paragraph 14. Adopted in paragraph 15. Adopted in paragraph 16. Adopted in substance in paragraph 17. Rejected as unnecessary. 19. Adopted in paragraph 18. 20. Adopted in paragraph 19. 21.-22. Adopted in substance in paragraph 20. 23. Adopted in paragraph 21. 24. Adopted in paragraph 22. 25. Adopted in paragraph 23. 26. Adopted in paragraph 24. 27. Adopted in substance in paragraph 25. 28. Adopted in paragraph 26. 29. Adopted in paragraph 27. 30. Adopted in paragraph 28. Rejected as unnecessary. Adopted in paragraph 29. Adopted in part in paragraph 30; otherwise rejected as contrary to the weight of evidence (as to being a "paper shuffler"). 34.-38. Adopted in paragraph 31. 39.-40. Adopted in paragraph 32. 41.-42. Adopted in paragraph 33. Adopted in paragraph 34. Adopted in paragraph 35. Adopted in paragraph 36, except that the implication that the company will absolutely go out of business is rejected as unsupported by the evidence. Rejected as unnecessary. COPIES FURNISHED: Paul Sexton, Esquire Department of Transportation Haydon Burns Building, MS 58 605 Suwanee Street Tallahassee, Florida 32399-0458 Joseph W. Lawrence, II, Esquire Cummings, Lawrence and Vezina, P.A. 1600 S.E. 17th Street, Suite 304 Fort Lauderdale, Florida 33316 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32399-0450
Findings Of Fact On or about July 21, 1988, Respondent advertised and solicited bids for a series of mini-contracts involving construction and maintenance programs. Among the jobs contained in this solicitation was State Job Number 15906-9076 for maintenance sidewalk repair in Pinellas County. Specific notice of Respondent's Rule 14-25.024, Florida Administrative Code, was given in the solicitation for bids. Petitioner is a certified disadvantaged business enterprise performing maintenance sidewalk repair. Under the terms of the July 21, 1988, solicitation, bids were to be received by August 18, 1988. No bids were received on State Job Number 15906-9076. On August 25, 1988, Petitioner filed a Notice of Protest, dated August 22, 1988, with Respondent's agency clerk. Petitioner's Protest challenges the terms of this bid solicitation, including the length of time to perform the work, and the size of the job. Petitioner did file a Notice of Protest with the Respondent's local office in Bartow, Florida on August 18, 1988, the day bids were to be received on this job.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's Protest of the bid solicitation for State Job Number 15906-9076. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of September, 1988. DONALD D. CONN 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 1st day of September, 1988. COPIES FURNISHED: R. Clay McGonagill, Jr., Esquire Department of Transportation Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Oscar Nunez, Owner Oscar Nunez Services 819 Northeast 42nd Terrace Ocala, Florida 32670 Kaye N. Henderson, Secretary Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, Esquire General Counsel 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue The issue in this bid protest is whether Respondent acted arbitrarily when it decided to reject all of the bids it had received in response to a solicitation seeking bids on a contract for roof repairs.
Findings Of Fact On January 10, 2008, the Florida Department of Environmental Protection (the "Department" or "DEP") issued an Invitation to Bid (the "ITB"), the purpose of which was to solicit competitive bids from qualified contractors on a project whose scope of work envisioned repairs to the wind-damaged roofs of several buildings located on the grounds of the Hugh Taylor Birch State Park in Fort Lauderdale, Florida. Some of the buildings to be repaired were single-family residences. Work on these structures accordingly needed to conform to the requirements prescribed in the 2007 Manual of Hurricane Mitigation Retrofits for Existing Site-Built Single Family Residential Structures (the "Manual"), which the Florida Building Commission (the "Commission"), following an explicit legislative directive, see Section 553.844(3), Florida Statutes,1 recently had adopted, by incorporative reference, as a rule. See Fla. Admin. Code R. 9B-3.0475 (2007).2 The Rule had taken effect on November 14, 2007, giving the Manual's contents the same status and force as the Florida Building Code. Id. Just before the Department issued the ITB, the Commission had approved, at a meeting on January 8, 2008, a modified version of the Manual, which it called the 2007 Manual of Hurricane Mitigation Retrofits for Existing Site-Built Single Family Residential Structures, Version 2 (the "Revised Manual"). In consequence of the Commission's approval of the Revised Manual, the Florida Department of Community Affairs ("DCA") caused a Notice of Proposed Rule Development to be published on January 25, 2008, in the Florida Administrative Weekly. This official advertisement announced that the Commission intended to amend Rule 9B-3.0475, so that its incorporative reference would mention the Revision Manual instead of the Manual. See 34 Fla. Admin. W. 461-62 (Jan. 25, 2008).3 DCA caused a Notice of Proposed Rule respecting the intended revision of Rule 9B-3.0475 to be published on February 1, 2008, in the Florida Administrative Weekly. See 34 Fla. Admin. W. 605 (Feb. 1, 2008).4 On February 5, 2008, the Department issued Addendum No. 4 to the ITB (the "Addendum"). The Addendum provided in pertinent part as follows: Bidders shall bid the project as specified despite the recent change in Rule 9B-3.0475 relating to hurricane mitigation retrofits. Any additional water barrier will be accomplished by Change Order after award of the contract. (The foregoing provisions of the Addendum will be referred to hereinafter as the "Directive"). On February 12, 2008, the Department opened the bids it had received in response to the ITB. Ten (out of 12) of the bids submitted were deemed responsive. The bid of Petitioner Spinella Enterprises, Inc. ("Spinella") was one of the acceptable bids. On February 19, 2008, DEP posted notice of its intent to award a contract to the lowest bidder, namely Spinella, which had offered to perform the work for $94,150. The second lowest bidder was The Bookhardt Group ("Bookhardt"). Bookhardt timely protested the intended award, raising several objections, only one of which is relevant here. In its formal written protest, dated March 3, 2008, Bookhardt alleged that "[t]he new State of Florida law F.S. 553.844 was not part of the solicitation." On April 4, 2008, Rule 9B-3.0475, as amended to incorporate by reference the Revised Manual, took effect. See Fla. Admin. Code R. 9B-3.0475 (2008). On May 16, 2008, DEP posted notice of its intent to reject all bids received in response to the ITB. (Bookhardt's protest, which remained pending, had never been referred to DOAH for a formal hearing.) Spinella timely protested the Department's decision to reject all bids. In an email sent to Spinella on July 22, 2008, DEP's counsel explained the rationale behind the decision: The reason the Department rejected all bids follows. When the Department posted the notice of intent to award the contract to Spinella Enterprises, Inc., the second low bidder (Bookhardt Roofing) protested the intent to award. The second low bidder's basis for protesting the intended award was that Addendum 4 directed bidders to ignore certain rules of the Construction Industry Licensing Board [sic], which had become effective after the bid opening, which was not in accordance with the law. As a result, this may have caused confusion and the Department had no assurance that bidders were bidding the project correctly. In addition, the statement in Addendum 4 that the Department would add the required moisture barrier afterward by change order set up a situation where bidders had no idea how much the Department would be willing to pay for the change order. Further, the moisture barrier was not the only thing required by the new rules. Potential bidders may not have bid due to these uncertainties. The Department agreed with Bookhardt's assertions and rejected all bids . . . . Notwithstanding Spinella's protest, the Department issued a second invitation to bid on the project in question. As of the final hearing, the bids received in response to this second solicitation were scheduled to be opened on August 12, 2008. Ultimate Factual Determinations The Department's decision to reject all bids is premised, ultimately, on the notion that the Directive told prospective bidders to ignore an applicable rule in preparing their respective bids.5 If this were true, then the Directive could have been a source of potential confusion, as the Department argues, because a prudent bidder might reasonably hesitate to quote a price based on (possibly) legally deficient specifications. The Directive, however, did not instruct bidders to ignore an applicable, existing rule. Rather, under any reasonable interpretation, it instructed bidders to ignore a proposed rule and follow existing law. Such an instruction was neither confusing nor inappropriate. To be sure, the first sentence of the Directive——at least when read literally——misstated a fact. It did so by expressing an underlying assumption, i.e. that Rule 9B-3.0475 recently had been changed, which was incorrect. In fact, as of February 5, 2008, the Rule was exactly the same as it had always been. (It would remain that way for the next two months, until April 6, 2008).6 DEP's misstatement about the Rule might, conceivably, have confused a potential bidder, at least momentarily. But DEP did not factor the potential for such confusion into its decision to reject all bids, and no evidence of any confusion in this regard was offered at hearing.7 More important is that the unambiguous thrust of the Directive was to tell bidders to rely upon the "not recently changed" Rule 9B-3.0475, which could only have meant Florida Administrative Code Rule 9B-3.0475 (2007) as originally adopted, because that was the one and only version of the Rule which, to that point, had ever existed. Thus, even if the Department were operating under the mistaken belief, when it issued the Addendum, that Rule 9B-3.0475 recently had been amended; and even if, as a result, DEP thought it was telling prospective bidders to ignore an applicable, existing rule, DEP nevertheless made clear its intention that prospective bidders follow the original Rule 9B- 3.0475, which was in fact the operative Rule at the time, whether or not DEP knew it. Indeed, as any reasonable potential bidder knew or should have known at the time of the Addendum, (a) the Commission recently had approved the Revised Manual, but the contents thereof would not have the force and effect of law unless and until the Revised Manual were adopted as a rule, which had not yet happened; (b) the Commission had initiated rulemaking to amend Rule 9B-3.0475 so as to adopt the Revised Manual as a rule, but the process was pending, not complete; (c) Rule 9B-3.0475 had not been amended, ever; and, therefore, (d) the Manual still had the force and effect of law. See endnote 6. The Directive obviously could not alter or affect these objective facts. At bottom, then, a reasonable bidder, reviewing the Directive, would (or should) have concluded either (a) that the "recent change" which DEP had in mind was the Commission's approval of the Revised Manual (or the subsequent announcement of the proposed amendment to Rule 9B-3.0475) or (b) that DEP mistakenly believed the Rule had been changed, even though it had not been. Either way, a reasonable bidder would (or should) have known that the Department wanted bidders to prepare their respective bids based not on the Revised Manual, but the Manual. In other words, regardless of what DEP subjectively thought was the existing law, DEP clearly intended (and unambiguously expressed its intent) that bidders follow what was, in fact, existing law. This could not have confused a reasonable bidder because, absent an instruction to exceed the minimum required legal standards (which the Directive was not), a reasonable bidder would have followed existing law in preparing its bid, just as the Directive required. Once it is determined that the Directive did not, in fact, instruct bidders to ignore an applicable, existing law, but rather told them to rely upon the applicable, existing law (notwithstanding that such law might change in the foreseeable future), the logic underlying the Department's decision to reject all bids unravels. Simply put, there is no genuine basis in logic or fact for concluding that the Addendum caused confusion. The other grounds that DEP has put forward do not hold water either. Contrary to the Department's contention, the possibility that a Change Order would be necessary if an "additional water barrier" were required could not possibly have confused potential bidders or caused them to be uncertain about how much money the Department would be willing to pay for such extra work. This is because Article 27 of the Construction Contract prescribes the procedure for entering into a Change Order, and it specifies the method for determining the price of any extra work. See ITB at 102-05. The fact that the proposed amendment to Rule 9B-3.0475, if it were to be adopted and become applicable to the instant project, might require other additional work, besides a water barrier, likewise could not reasonably have caused potential bidders to refrain from bidding, for the same reason: The Construction Contract contains explicit provisions which deal with the contingency of extra work or changes in the work. Id. In sum, DEP's intended decision to reject all bids cannot be justified by any analysis that a reasonable person would use to reach a decision of similar importance. It is, therefore, arbitrary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding that its decision to reject all bids was arbitrary. Because the Department elected not to comply with the statutory directive to abate this procurement pending the outcome of Spinella's protest, with the result that the contract at issue possibly has been awarded already to another bidder; and because the choice of remedies for invalid procurement actions is ultimately within the agency's discretion, the undersigned declines to make a recommendation regarding the means by which DEP should rectify the harm to Spinella, but he urges that other appropriate relief be granted if Spinella cannot be awarded the contact. DONE AND ENTERED this 2nd day of October, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 2008.
The Issue Whether Cubic Western has standing to bring the bid challenge involved in these proceedings.
Findings Of Fact On or about March 31, 1989, CUBIC submitted a Proposal in response to DOT RFP-DOT-88-01 for a toll collection system for Florida's Turnpike. After reviewing this proposal, DOT determined CUBIC's proposal was nonresponsive to the RFP, and on May 18, 1989, advised CUBIC of the rejection of its proposal and of CUBIC's right to challenge this determination by filing a petition for administrative hearing. CUBIC timely filed a Formal Written Protest dated June 5, 1989 requesting an administrative hearing challenging this agency action. This protest was forwarded to the Division of Administrative Hearings by DOT order of July 20, 1989, and the case was scheduled to be heard August 4, 1989. On July 31, 1989, CUBIC filed a Notice of Voluntary Dismissal. The Division of Administrative Hearings entered an ORDER OF DISMISSAL closing the DOAH file and returning the matter to DOT for final disposition. DOT entered a Final Order dismissing CUBIC's bid protest. On October 5, 1989, CUBIC filed an Amended Complaint in the Circuit Court, Second Judicial Circuit, in and for Leon County, against DOT, which had been consolidated with an action filed by PRC against DOT as both cases stemmed from action taken by DOT on RFP-DOT-88-01. In this civil action, CUBIC seeks return of the RFP it submitted to DOT. In this civil complaint CUBIC asserts that since its proposal had been rejected by DOT as nonresponsive to the RFP, at that point in time "DOT and the public had no further interest in CUBIC's Proposal, and there is no public interest to be served by disclosing the CUBIC Proposal at this time." On November 21, 1989, DOT posted notice of its intended award of the contract based on the RFP to PRC. On December 6, 1989, CUBIC timely filed the Formal Written Protest that is the subject of this Motion.
Recommendation It is recommended that the Formal Written Protest dated December 6, 1989, submitted by Cubic Western Data, be dismissed. ENTERED this 2nd day of January 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1990. COPIES FURNISHED: Frank A. Shepherd, Esquire Gernard M. Kouri, Esquire Thomas H. Bateman, 111 Kimbrell and Hamann General Counsel Suite 900, Brickell Center Department of Transportation 799 Brickell Plaza 562 Haydon Burns Building Miami, FL 33131-2805 Tallahassee, FL 32399-0450 Robert Daniti, Esquire Ben G. Watts Department of Transportation Secretary Haydon Burns Building, MS 58 Department of Transportation Tallahassee, FL 32399-0458 Haydon Burns Building 605 Suwannee Street Deborah A. Getzoff, Esquire Tallahassee, FL 32399-0450 David Bressler, Esquire Fowler, White, et al. 101 N. Monroe Street Tallahassee, FL 32301
The Issue Whether the Department’s intended award of contract E2K97 for Asset Maintenance of the Duval County Roadways is contrary to the agency’s governing statutes, the agency rules or policies or the bid or proposal specifications.
Findings Of Fact The following facts were agreed between the parties in their Joint Pre-Hearing statement: On June 18, 2007, FDOT posted the solicitation for asset maintenance of the Duval County Roadways through procurement E-2K97. The RFP requested technical proposals and bids for a five-year contract for maintenance of identified roads in Duval County. The RFP provides that the scoring of the technical proposals is to be weighted as follows: Administration Plan (20%), Management and Technical Plan (30%), Operation Plan (30%), and Plan for Compliance with Standards (20%). ESI did not file a protest of the RFP's terms, conditions, specifications, or provisions governing the method of ranking proposals within 72 hours of the posting of the solicitation. A mandatory pre-bid meeting was held on July 10, 2007. The technical and price proposals for this project were due by August 9, 2007. Four firms submitted timely proposals in response to the RFP. They were ESI, DBI, Infrastructure Corporation of America (ICA) and VMS. The proposals were evaluated by three registered civil engineers who are employed by FDOT: Jerry Ausher, Julius Rinosa, and Mark Kuhn. All four firms were determined to be responsive and received scores on their technical proposal and price proposal. DBI's average score on its technical proposal was 88, the highest of the four firms. ESI's average score on its technical proposal was 75.33, the lowest of the four firms. ESI's price proposal bid was $44,759,500.00, the lowest of the four firms. DBI's price proposal bid was $48,748,886.00, the second lowest of the four firms. After combining the technical scores and price proposal scores, the total proposal scores for the four firms were as follows: DBI = 89.14, VMS = 85.19, ESI = 82.73, and ICA = 82.68. On September 4, 2007, FDOT posted its notice of intended award to DBI as the winning bidder. ESI filed a notice of intent to protest on September 7, 2007, followed by a formal written protest on September 17, 2007. DBI filed a Petition to Intervene which was granted on November 7, 2007. As the intended awardee, DBI has a substantial interest in the outcome of this proceeding and thus, has standing to intervene.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner’s Amended Formal Written Bid Protest be dismissed. DONE AND ENTERED this 31st day of March, 2008, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2008. COPIES FURNISHED: Cynthia S. Tunnicliff, Esquire Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar 215 South Monroe Street, Second Floor Tallahassee, Florida 32301 Denise Johnson, Esquire Assistant General Counsel Florida Department of Transportation Office of the General Counsel Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0458 Brant Hargrove, Esquire 2104 Delta Way, Suite 9 Tallahassee, Florida 32303 J. Reuben Hamlin, Esquire Post Office Box 1620 Newberry, Florida 32669 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Building, Mail Stop 57 Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Building, Mail Stop 58 Tallahassee, Florida 32399-0450 James C. Meyers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street Building, Mail Stop 58 Tallahassee, Florida 32399-0450
The Issue The issue is whether Respondent engaged in an unlawful employment practice by subjecting Petitioner to gender discrimination and retaliation in violation of the Florida Civil Rights Act.
Findings Of Fact Southgate is a student housing and dining facility located in Tallahassee, Florida, near the campuses of Florida State University, Florida A&M University, and Tallahassee Community College. On September 16, 2004, Southgate hired Petitioner Devon Rozier as a dishwasher in the cafeteria dish room. The cafeteria is open seven days a week and currently employs approximately 34 employees, some part-time and some full-time. Petitioner had just turned 16 years old when Ken Mills hired him based upon a long-standing relationship with Petitioner's father, who had worked at Southgate for many years and was an exemplary employee. Petitioner worked as a part-time employee on the night shift, 3:30 p.m. until 8:00 p.m., for a total of 20-25 hours per week. Petitioner later received a promotion out of the dish room to the grill, and also worked other positions such as attendant and greeter. Petitioner also worked in various positions to assist as needed, as did other employees in the cafeteria. At the beginning of his employment, Petitioner exhibited good performance. As time progressed, Petitioner's performance began to decline, and he openly disrespected management. Various disciplinary techniques were employed by his supervisors in efforts to improve his performance, but the improvements always proved to be short-lived. On April 30, 2009, Petitioner and his supervisor, Rasheik Campbell, had an altercation, and Petitioner left the facility. Mr. Campbell warned Petitioner before he left the facility that such action would constitute job abandonment. Despite Mr. Campbell's warning, Petitioner left the facility. Mr. Campbell took the position that Petitioner abandoned his employment with Southgate. Petitioner was no longer placed on the schedule. On May 4, 2009, Southgate sent Petitioner a letter confirming his resignation. As months passed, Petitioner made attempts to regain his position with Southgate by calling his supervisors Mr. Campbell and Mr. Jason McClung. When his attempts were met with resistance by his supervisors, Petitioner bypassed them and went directly to Ken Mills, Southgate's General Manager and Petitioner's former supervisor. Petitioner presented his case to Mr. Mills in July and August 2009, regarding his desire to return to work. Mr. Mills had previously intervened on Petitioner's behalf, out of respect for Petitioner's father, to help him keep his job when difficulties with management had arisen. This time, Mr. Mills instructed Petitioner that Mr. McClung and Mr. Campbell were his direct supervisors and that they had ultimate responsibility regarding his desired return to work at Southgate. In August 2009, at the request of Mr. Mills, once again doing a favor for Petitioner based upon the long-standing work history of Petitioner's father at Southgate, Mr. Mills, Mr. McClung, and Mr. Campbell met with Petitioner and his mother, Jennifer Rozier. At the meeting, they discussed Petitioner's request to return to work at Southgate. During the meeting, Mr. McClung and Mr. Campbell did not feel that Petitioner exhibited any improvement in his behavior and respect for authority. As a result, Mr. McClung and Mr. Campbell chose not to re-hire Petitioner. Petitioner claims the following conduct he witnessed while working at Southgate was discriminatory: a) females were allowed to sit down at tables and eat while on the clock; b) females were allowed to use the computer while on the clock; and c) Petitioner was required to perform the females' work when they failed to show up or wanted to leave early. Petitioner further claims that his firing was retaliatory based upon one complaint he made to Mr. Campbell in February 2009 about having to perform the tasks of others who failed to come to work. Other employees, including Jodece Yant, Petitioner's girlfriend, and Darnell Rozier, Petitioner's own brother, testified that both males and females could be seen eating or using the computer while on the clock, and all were told to perform others' tasks when they failed to come to work or left early. Petitioner conceded that on occasion he engaged in the same behaviors he alleges to be discriminatory. Petitioner obtained a full-time job at Hobbit American Grill on January 21, 2010, and, as of the date of the hearing, continued to work there. His rate of pay at Hobbit American Grill is currently $7.25 per hour, and he testified he is better off there than at his former employer, Southgate. Petitioner is currently earning the same hourly wage ($7.25) as he was earning when employed at Southgate. Southgate had policies and procedures in force that prohibited, among other things, discrimination on the basis of gender or any other protected characteristics. Southgate's policies and procedures also prohibited retaliation. Petitioner received a copy of the employee handbook, which contained Southgate's anti-discrimination policies and was aware that Southgate had such policies in place.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of November, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2010. COPIES FURNISHED: Desiree C. Hill-Henderson, Esquire Littler Mendelson, P.C. 111 North Magnolia Avenue, Suite 1250 Orlando, Florida 32801 Micah Knight, Esquire 123 North Seventh Avenue Durant, Oklahoma 74701 Devon A. Rozier 7361 Fieldcrest Drive Tallahassee, Florida 32305 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
