Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In September 1992, respondent, Jacksonville Transportation Authority (JTA), issued Invitation to Bid No. CF-0310-92 (ITB) inviting contractors who held certificates of prequalification to bid on Department of Transportation (DOT) projects to submit proposals for performing construction work on 1.6 miles of State Road 9A in Duval County, Florida. The contract to be awarded was the third contract of three contiguous construction projects on State Road 9A and was commonly known as contract 3. It was to be completed within twenty-four months. Essentially, the work involves the widening of that road from two to four lanes, and adding connector ramps, a median, and other associated improvements. The project is more specifically identified as project number 72002-3533. The ITB called for sealed bids to be filed no later than 2:00 p.m. on September 23, 1992, with an award of the contract to be made to the lowest responsive bidder at JTA's meeting on September 29, 1992. The ITB provided further that "the right is reserved (by JTA) to reject any and all bids." A total of six contracting firms filed bids in response to the solicitation. They included petitioner, Hubbard Construction Company (Hubbard), and intervenor, Petticoat Contracting, Inc. (PCI), both of whom were prequalified. Hubbard is a large construction firm headquartered in Orlando, Florida, and has been in the construction business for some seventy years. In 1992 alone, it bid on more than 300 jobs and did approximately $180 million in business. Conversely, PCI is a much smaller firm headquartered in Jacksonville, Florida, with approximately forty-five employees. It has been in business for almost seven years and is minority (female) owned and operated. Hubbard was the lowest dollar bidder with a bid in the amount of $6,257,722.38, while PCI was the second lowest bidder with a bid in the amount of $6,270,121.43, or approximately $12,400.00 higher than Hubbard. After the bids were opened, they were evaluated by JTA's engineering consultant, Sverdrup Corporation, a Jacksonville engineering firm. Concluding that Hubbard's bid was "unbalanced" in several material respects and thus was irregular, the consultant recommended that the contract be awarded to PCI, the second lowest bidder. This recommendation was concurred in by JTA's staff and was presented to JTA at a meeting held on September 29, 1992. After a discussion regarding the bid proposals, including consideration of comments from Hubbard and PCI representatives, JTA voted to award the contract to PCI. Hubbard then timely filed its protest. In its protest, Hubbard generally contended that JTA had erroneously determined that Hubbard's bid was unbalanced, and by doing so, JTA had imposed upon Hubbard a bid requirement not encompassed within the ITB. It also contended that under the standard used by JTA, all other proposals, including that of PCI, were unbalanced. Finally, the protest argued that PCI was not actually a disadvantaged business enterprise and thus should have been required to furnish documentation concerning its compliance with minority subcontractor requirements. As to this latter contention, no proof was submitted at hearing, and thus no discussion of that allegation is required. The ITB Requirements JTA has its own set of specifications that were distributed to each of the bidders on the project. Among other things, the ITB provided that "(a)ll work is to be done in accordance with the Plans and Special Provisions, and the Standard Specifications of the State of Florida Department of Transportation." The latter reference was to the 1991 edition of the Standard Specifications for Road and Bridge Construction used by DOT. Those specifications are included in the ITB because JTA must build its roads and bridges to state road specifications. In this regard, article 2-6 of those specifications provided in relevant part as follows: A proposal will be subject to being considered irregular and may be rejected if . . . it shows irregularities of any kind; also the unit prices are obviously unbalanced, either in excess of or below the reasonable cost analysis values. The ITB also contained an Appendix A which included supplemental specifications to accompany the DOT document. However, it did not modify article 2-6. The ITB further contained a section entitled Special Provisions which represented "modifications and additions to the corresponding Articles" in DOT's Standard Specifications and the supplemental specifications set forth in Appendix A. Again, article 2-6 was not changed but section 4-1 of the Special Provisions, which constitutes an addition to DOT's specifications, provided that all items which are constructed or installed will be paid for at the unit price bid regardless of the total quantity utilized. Unit prices shall represent the actual costs and profit earned for labor, equipment and materials used in completing the unit of work bid. Therefore, the DOT standard specifications, and specifically article 2-6, were controlling on this contract. In construing the foregoing provisions, JTA considers a bid item to be "irregular" when it is far higher or lower than the engineer's estimate and the average of the other bids. When an irregularity is discovered in a bid, a decision is then made as to whether the irregularity is material or significant in terms of its affect on the competitive process and ensuring that no bidder receives a substantial advantage over other bidders. The potential effect of any irregularity on JTA's interest is also considered in deciding whether the irregularity is material such that the bid should be rejected pursuant to article 2-6 of the specifications. In conjunction with the above analysis, JTA compares the other contractors' bids with the engineer's estimate, and if they are closely approximated, it deems the estimate to be accurate. Conversely, where the average bids and the estimate are not close, JTA concludes that the estimate may be erroneous. It is noted that the consultant relies on the DOT specifications and DOT's historic pricing methods when preparing his estimates. The ITB called for each bidder to submit a unit price for each component of work required under the contract. This required each bidder to estimate the cost for providing services for more than one hundred sixty items, including item 110-1-1 (clearing and grubbing), item 102-2 (topsoil), and item 715-91-120 (high-mast lighting poles), which items are of particular concern in this controversy. The amount of the bid upon which award of the contract was to be based equaled the sum of the prices for the listed items. Item 110-1-1 is a lump sum item, rather than work on a per unit basis, and required the contractor to clear and grub 79.489 acres of land. This work is done at the outset of the project and is generally completed within the first ninety days of the job. Item 102-2 involved the placement of 120,041 square yards of topsoil on the embankments which was to serve as a layer for seeding the grass. However, the parties agree that the contractor had the choice of using either topsoil or a muck blanket extracted from the job site through excavation. If the latter option was chosen, this would eliminate the need to procure topsoil from off-site. Even so, to avoid the possibility of a change order by the contractor, which had occurred on several earlier projects, JTA expected the contractor to estimate his actual cost for topsoil as if the topsoil was to be obtained from off-site. The final disputed item required the contractor to furnish and install fifteen 120-foot street lighting poles. Bidders were required to give a price for a single pole and then multiply that price times the estimated quantity that would be required. This work is generally completed during the last phase of the job. The Submissions As noted earlier, six contractors filed bids in response to the ITB with prices ranging from a low of $6,257,722.38 by Hubbard to a high of $6,997,656.41 by the highest bidder. Hubbard proposed to complete the job in thirteen months even though the ITB allowed twenty-four months while PCI intended to use the full amount of time. As to the three items in dispute, the record reflects the engineer's estimated cost, Hubbard's cost, PCI's cost and the average cost for all bidders excluding Hubbard were as follows: Item Estimated Cost Hubbard PCI Average costs 110-1-1 $150,000.00 $545,000.00 $176,600.00 $147,100.14 102-2 33,011.28 1,200.41 82,828.29 71,064.27 715-91-120 180,000.00 25,500.00 204,750.00 199,701.54 In preparing its bid, Hubbard assumed that the DOT standard specifications would be interpreted and supplied in conformity with DOT's historical interpretation. Therefore, Hubbard prepared its bid in the same manner as it always had, including prior JTA submissions, and this resulted in the above deviations from estimated and average costs for the following reasons. Hubbard obtained a copy of the plans and specifications approximately two weeks before the date for filing its bid and then assigned a team of estimators to prepare the numbers in the bid package. Because several items are subcontracted out, including grassing, striping and electrical work, Hubbard had to wait until the subcontractors returned their prices before it knew the actual cost of those services. As is true in almost every case, the subcontractors did not furnish their prices until the final day or hour. Hubbard was reluctant to leave those items blank until the last moment fearing it would be difficult for the persons filing the bid in Jacksonville to complete the lengthy proposal before the deadline, and an error might be made by them in their haste to change the prices on multiple items for which they received price quotations in the last hour. Accordingly, in filling out the items on which subcontractors would be used, Hubbard used its best estimate of the subcontractor prices based upon its prior experience on other jobs. However, to allow for variances that might occur between the actual subcontractor prices and the estimated prices, Hubbard left blank one lump sum item so that this item's estimated cost could be adjusted up or down at the last moment depending on the other variances. In this way, the total amount of the bid would not change. As it turned out, there were variances in twenty to thirty items which were based on subcontractor prices, with one item (high mast lighting poles) coming in substantially higher than originally estimated. As noted above, Hubbard did not change the estimated subcontractor prices but rather calculated the difference between its estimate and the actual subcontractor prices and added that number to the lump sum price for clearing and grubbing. This resulted in increasing the cost for clearing and grubbing from an actual cost of around $150,000.00 to $545,000.00 while the estimated cost for fifteen high mast lighting poles ($25,500.00) was substantially below its actual cost of more than $170,000.00. According to Hubbard, it follows this practice on virtually every bid document it prepares, including those filed with JTA, and has never had one rejected on the ground certain items were materially unbalanced. Testimony that these preparation procedures are standard in the industry and enable contractors to give the public the best possible prices by allowing for last minute changes while protecting against error was not contradicted. In preparing its topsoil estimate, Hubbard determined that the anticipated muck and subsoil excavation would eliminate the need to procure topsoil from off-site. Therefore, it proposed a cost of only one cent per square yard for adding topsoil to the embankment on the theory that no topsoil would be procured from off-site. Because Hubbard's computer would not take a zero cost, and the cost was already included in the embankment charges, Hubbard put the next lowest price, or one cent, as the cost for topsoil. The final relevant item, high mast lighting, was to be subcontracted out to a specialty contractor. Hubbard originally estimated a cost of $1,700.00 per pole for fifteen poles, or a total cost of $25,500.00. At hearing, Hubbard conceded that this estimated cost was either a mistake on the part of the person filling out the proposal or "a mistake of judgment" by an estimator, and that its actual costs were substantially higher. However, it felt that there was no disadvantage to JTA by preparing its bid in that manner. In its proposal, PCI used a cost of $176,000 for clearing and grubbing, 69 per square yard, or a total cost of $82,828.29, for topsoil, and $13,650 for each high mast lighting pole, or a total cost of $204,750.00. These estimates did not substantially deviate from the bidders' average or the engineer's estimated costs. As to the topsoil item, PCI also intended to use muck excavated from the job site in lieu of topsoil. However, it was not sure that the amount of muck excavated would be adequate, and thus it estimated the amount of topsoil that would be required if the soil was obtained off-site, added a component for overhead and profit, and arrived at a total cost of 69 per square yard. Finally, PCI's estimated cost for pile splices, mobilization, maintenance of traffic and prestressed concrete beams were unbalanced to some degree and constituted a violation of section 4-1. However, these variances were relatively minor in nature and were not material. The Evaluation Process JTA utilized the services of an outside engineering firm to serve as consultant on the project. Immediately after the bids were opened, the consultant's duties were to verify that certain basic requirements were met and that the contractor had the capacity to perform the work. He was also required to prepare a bid tabulation listing the contractors' estimates with the engineer's estimate and to determine if any irregularities were present. A recommendation would then be submitted to the JTA staff regarding the award of the contract. The staff was also required to review the bids and to make a recommendation to the JTA. During the course of his evaluation of Hubbard's bid, the consultant noted a marked variance between estimated costs for clearing and grubbing of $150,000.00 and Hubbard's price of $545,000.00, particularly since the average cost of all other bidders was $147,100.14. He next noted the proposed cost for high mast lighting poles ($25,500.00) and found it to be "extremely low" in relation to the engineer's estimated price ($180,000) and the average cost of almost $200,000.00 submitted by the other bidders. In addition, he found the engineer's estimated cost for topsoil of $33,011.28 to be much higher than Hubbard's proposed cost of $1,200.41, especially since the other bidders averaged $71,064.27. Finally, the consultant conducted a similar review of PCI's proposal, and while he found some irregularities in its bid, he did not consider them material. Thereafter, in a letter to JTA's executive director on September 28, 1992, the consultant noted that: Upon examination of the bids, it became evident that some of Hubbard Construction Company's unit prices are unbalanced. Item No. 110-1-1, Clearing and Grubbing, is a lump sum item and is one of the first pieces of work to be performed in this project. Hubbards' bid amount is $545,000.00. The engineer's estimate is $150,000.00 and the average of all other bidders is $147,000.14. Item no. 715-91-120, High Mast Lighting Pole Complete (Furnish and Install)(120'), also appears to be unbalanced. This work would be performed near the end of the contract. Hubbard's bid amount is $25,500.00. The engineer's estimate is $180,000.00 and the average of the other bidders is $199,701.54. Hubbard's bid amount will not cover the cost of the materials required of this item based on reasonable expected costs. Both of the items are in contradiction to Section 4, Article 4-1 which states "Unit prices shall represent the actual costs and profit earned for labor, equipment and materials used in completing the unit of work bid." Item 102-2, Topsoil, shows an inconsistency. Hubbard's bid amount is $1,200.41. The engineer's estimate is $33,011.28 and the average of the other bidders is $71,064.27. Based on the results of the bid review noted above, it is recommended that Hubbard Construction Company's bid proposal be considered irregular as per Article 2-6 of the Standard Specifications, and therefore rejected. A similar evaluation process was subsequently conducted by the JTA staff, and it reached the same conclusion as the consultant. Its recommendation to reject the bid of Hubbard on the ground the bid was "irregular as per Article 2-6 of the JTA Standard Specifications" and to award the contract to the second lowest bidder, PCI, was conveyed by memorandum to the JTA Highway Committee on September 29, 1992, and was approved by JTA the same date. Was the Agency's Action Arbitrary? JTA's conclusion that Hubbard's bid was materially unbalanced and irregular and thus violated article 2-6 was based on two principal concerns. First, JTA considered the adding of nearly $400,000.00 in costs to clearing and grubbing to be "front-end loading" and thus improper. This means the bid was structured so that a large amount of money, not commensurate with the amount of work actually performed, would be paid at the beginning of the project. In this case, clearing and grubbing would be completed within the first ninety days of the project yet Hubbard would receive almost $400,000.00 in excess of its actual costs to perform that work. JTA believed that this would reduce its control over the performance of the contract, it would be unfair to other bidders on the project, the money would be used to finance other portions of the work, and the possibility existed that Hubbard might not complete performance on the job after being paid the up-front money. Second, and based on what it says has happened on other jobs, JTA feared that by allowing Hubbard to underprice its topsoil item, Hubbard could conceivably request a change order increase of more than $100,000.00. This amount was calculated on the theory that Hubbard might have a $60,000.00 overrun on muck (120,000 cubic yards x 50 ) because it was using the muck to meet the topsoil requirement, and a $1,200.00 underrun on topsoil (which represents the amount bid) because no topsoil would be used, or a net overrun of $58,800.00. At the same time, JTA feared that an overrun on muck would lead to an overrun on subsoil excavation. At a price of $5.00 per cubic yard for any overruns on this item, JTA would be forced to spend as much as $53,000.00 more on a change order for this item. Assuming this actually occurred, PCI would then be the low bidder by almost $88,000.00. Initially, JTA's concerns must be tempered by the fact that on the previous contract for State Road 9A, known as contract 2, Hubbard structured its bid in the same manner as on contract 3. On that contract, its bid was almost three times the engineer's estimate for clearing and grubbing and exceeded the engineer's estimate for mobilization by more than four fold. Even so, Hubbard was more than $200,000.00 lower than the second low bidder and was $400,000.00 lower than the engineer's estimate. On that project, JTA awarded the contract to Hubbard and did not raise the contention, as it did here, that the bid was materially unbalanced. At hearing, the consultant was unable to give a satisfactory explanation as to why the prior bid was "regular" but the instant bid was "irregular" even though both bids had been prepared in the same manner and contained "obviously unbalanced items." In this case, JTA did not give bidders any notice that it intended to construe article 2-6 any differently than it had on prior contracts. In addition, in preparing its bid, Hubbard assumed that article 2-6 would be interpreted in the same manner as did DOT since the ITB provided that the DOT specifications would apply. Moreover, there was nothing in the ITB Special Provisions which gave notice that JTA intended to place a different interpretation on article 2-6 than was customarily done by DOT. According to uncontradicted testimony, DOT has consistently interpreted article 2-6 in the following manner. DOT does not find balancing in and of itself to be a sufficient basis to reject a bid as being irregular under article 2-6. Indeed, virtually every bid submitted for any highway construction project, including those of PCI and Hubbard here, are unbalanced in some respect. If DOT has serious concerns about an unbalanced bid, the terms of article 2-6 require that a study be made to see if the unit prices are "either in excess of or below the reasonable cost analysis values." To do this, DOT performs a study of the time value of money related to the major components of work in a contract on an item by item intra-bid basis, compares the results of that analysis to an irrevocable schedule of construction, and then determines whether the taxpayers would be detrimentally affected by awarding the contract to a bidder with the unbalanced items. In other words, a contractor is paid as units of work are completed, and to the extent major items of work are unbalanced so that payments are deferred or accelerated, the cash flow of the agency may be adversely affected. Without a time value of money analysis, a determination cannot be made as to whether the taxpayers are detrimentally affected by an unbalanced bid. Indeed, out of several thousand bids over a twelve year study period (1975-1987), DOT rejected no more than six because of unbalancing, and then only after such an analysis was performed. As to Hubbard's bid, a former DOT secretary expressed the view that Hubbard's bid did not even rise to the level necessary to invoke the analysis. In any event, by failing to follow its own specifications and performing such a study, JTA could not fairly conclude that the awarding of a contract to PCI would positively impact its net present value of money. This is especially true here since Hubbard proposed to complete the project in thirteen months and PCI in twenty-four months, and neither party submitted a construction schedule with its bid. Therefore, JTA had no basis to conclude that article 2-6 had been violated. Finally, there was no evidence to support the contention that JTA would lose control of the project if Hubbard was paid the excess monies for clearing and grubbing. JTA's concern that Hubbard might fail to complete the job if it received a large payment up front is also without merit. While front end loading is a legitimate concern where a contractor might not finish the project, the facts dispel that concern here. Besides having to post a performance bond, Hubbard would also be disqualified from bidding on other jobs in the event a project was abandoned. Given Hubbard's size and reputation, and the fact that the contract itself provides for JTA retaining a percentage of the payment of work until all work is completed, it is found this concern is not legitimate. As to the concern over topsoil, there was insufficient evidence to establish that muck was more likely to overrun than any other item. Indeed, JTA acknowledged at hearing that the engineer's estimate for muck excavation was as accurate as it could be and no analysis or testing had been performed which would support a change in position. In addition, a JTA board member testified that the topsoil pricing was not considered the primary basis for rejection of Hubbard's bid. Finally, the use of a one cent price for topsoil did not affect the overall price of the bid or give Hubbard an advantage or benefit not enjoyed by others.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by respondent awarding the contract for project no. 72002-3533 to Hubbard Construction Company. DONE AND ENTERED this 28th day of January, 1993, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 28th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6302BID Petitioner: 1-3. Partially accepted in finding of fact 1. Partially accepted in finding of fact 3. Partially accepted in findings of fact 4 and 7. Partially accepted in finding of fact 3. 7-12. Partially accepted in finding of fact 10. Partially accepted in findings of fact 10 and 12. Partially accepted in findings of fact 8 and 12. Partially accepted in findings of fact 10 and 12. 16-19. Partially accepted in finding of fact 10. 20-22. Partially accepted in finding of fact 15. 23. Accepted in finding of fact 4. 24. Partially accepted in finding of fact 19. 25. Partially accepted in finding of fact 10. 26. Partially accepted in finding of fact 6. 27-29. Partially accepted in finding of fact 19. 30. Partially accepted in finding of fact 18. 31. Partially accepted in finding of fact 17. 32. Partially accepted in finding of fact 19. 33. Rejected as being unnecessary. 34-35. Partially accepted in finding of fact 19. 36-38. Partially accepted in finding of fact 20. 39-40. Partially accepted in finding of fact 21. 41. Rejected as being unnecessary. 42. Partially accepted in finding of fact 13. 43. Rejected as being unnecessary. 44. Partially accepted in finding of fact 19. 45. Rejected as being unnecessary. Respondent: Partially accepted in findings of fact 2 and 3. Partially accepted in findings of fact 4 and 5. Partially accepted in finding of fact 14. Partially accepted in finding of fact 6. Partially accepted in findings of fact 15 and 17. 6-8. Partially accepted in finding of fact 17. Rejected as being unnecessary. Partially accepted in finding of fact 15. Partially accepted in findings of fact 13 and 16. Partially accepted in finding of fact 3. Rejected as being unnecessary. Intervenor: Partially accepted in finding of fact 1. Partially accepted in finding of fact 3. Partially accepted in findings of fact 4 and 5. Partially accepted in finding of fact 14. 5-10. Partially accepted in finding of factg 15. 10A-C. Partially accepted in finding of fact 17. 11. Partially accepted in findings of fact 3 and 16. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, not supported by the more persuasive evidence, or a conclusion of law. COPIES FURNISHED: Miles N. Francis, Jr. Executive Director Jacksonville Transportation Authority P. O. Drawer O Jacksonville, Florida 32203 F. Alan Cummings, Esquire Mary M. Piccard, Esquire P. O. Box 589 Tallahassee, Florida 32302-0589 Cindy A. Laquidara, Esquire Kenneth A. Tomchin, Esquire P. O. Box 4099 Jacksonville, Florida 32201 Herbert R. Kanning, Esquire 12-14 East Bay Street Suite 302 Jacksonville, Florida 32202
Findings Of Fact The following findings of fact are made based upon a stipulation entered into by all parties on the record: S & L Property Managements, Inc., Intervenor, was the lowest bidder for lease number 590:1651 by between approximately $84,000 and $105,000, exclusive of moving costs, over the basic five year term of the lease. There is no evidence that Intervenor's facility (Howard Building) is structurally unsound, and in fact the Department of Health and Rehabilitative services, Respondent, procured an engineering report which showed Intervenor's facility to be structurally sound. Both Intervenor's and Southmark Management Corporation's, Petitioner's, bids on this lease met all bid requirements. Both were qualified bidders for award of this leased except for Petitioner's objection and contention that bidders were required to include present value calculations with their bids, which Petitioner did but Intervenor did not. Intervenor agreed with Respondent that if it received this award, it would renovate the leased space in its facility to meet Respondent's reasonable requirements. There is no issue regarding the conformity of Intervenor's bid with handicap design requirements. Preaward documents, memoranda and correspondence from Respondent only recommended that Petitioner be awarded this lease and did not advise Petitioner it had been awarded the lease. Robert Brady, Respondent's Director of General services, was the person who was to make the final decision concerning the award of this lease. Prior to the award of the lease to Intervenor, Brady determined that the Department of Corrections, present tenant in Intervenor's facility was satisfied with its occupancy, and also that the leased space would meet bid specifications. Petitioner chose to leave its bid open, even though it could have withdrawn its bid after the expiration of the thirty day period following the bid opening. Both Petitioner and Intervenor took actions and expended sums of money in the expectation of being awarded the lease. Intervenor acted after being advised it had been awarded this lease. There is no allegation by Petitioner that the award of this lease to Intervenor was made on the basis of any improper influence exerted upon or by Respondent by any of the bidders, or by any other person. Respondent delayed the award of this lease beyond thirty days after the bid opening. The following findings of fact are made based upon the evidence presented: Petitioner and Intervenor timely submitted bids in response to Respondent's Invitation to Bid on lease number 590:1651 which was for 12,312 square feet of space for the Office of Disability Determination in Tampa, Hillsborough County, Florida. The Office of Disability Determination had been a tenant in Petitioner's facility for six years, and continues to occupy space in Petitioner's facility until this bid protest is resolved. Since approximately October 1984 Respondent has not had a written lease with Petitioner for its present space despite repeated efforts by Petitioner to obtain an executed lease from Respondent. Bids which were received were evaluated by a three person committee composed of Respondent's employees familiar with the space needs of the Office of Disability Determination. The evaluation criteria, or award factors, were set forth in the Invitation to Bid. Rental rate over the basic term of the lease was weighted twice as heavily as any of the other eleven (11) criteria. Upon its initial review, the committee recommended that the award be made to Petitioner, and Leonard Polinsky, Property Manager for Petitioners was informed of this recommendation. Based upon a 100 point scaled Petitioner's initial evaluation was from .2 to 2 points higher than Intervenor's. Polinsky assumed that the actual award was a mere formality, and therefore expended approximately $700 for preliminary architectural sketches of lease space renovations. This initial evaluation committee recommendation was based, in part, on its concerns about the structural soundness and maintenance of Intervenor's facility. Petitioner did not know who would actually make the award on behalf of Respondent or what the authority of the evaluation committee was. Petitioner did not object to Respondent's delay of this award beyond the thirty-day time period called for in the Invitation to Bid, and suffered no harm as a result of this delay. The delay was caused by Respondent's investigation of the structural soundness of Intervenor's facility, as well as the experience of its present tenants. Following completion of this investigation, the evaluation committee met again, reevaluated the bids, and recommended Intervenor be awarded this lease. Respondent, through Robert Brady, determined that the award should be made to Intervenor after completing its investigation, reviewing the committee's reevaluation of bids, and being satisfied that this award would be in the best interests of the state. This decision was based primarily on the following factors: After investigation, no structural or maintenance problems were found to exist, which had been initial concerns of the committee. Intervenor was low bidder for the lease over the five year term of the lease. Both bids were responsive and met all bid requirements. Intervenor's facility was shown to be structurally sound and suitable for Respondent's needs. Intervenor's failure to include present value calculations of the rental rate in its bid did not disqualify it since bidders were not required to include these calculations. Respondent routinely did its own calculations of present value on each bid.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order awarding lease number 590:1651 to Intervenor. DONE and ENTERED this 15th day of November 1985, at Tallahassee Florida. Hearings Hearings DONALD D. CONN, Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 15day of November 1985. APPENDIX (DOAH Case No. 85-3158BID) Rulings on Petitioner's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 13. Rejected as a Finding of Fact but included in introductory material. Rejected as simply a statement of position. Adopted in part in Finding of Fact 14. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 9, 12, 16. 8-9. Adopted in part in Finding of Fact 13, otherwise rejected as irrelevant and unnecessary. 10-11. Adopted in part in Finding of Fact 14, otherwise rejected as irrelevant and not based on competent substantial evidence. Rejected as unnecessary and irrelevant. Adopted in part in Finding of Fact 14. 14-16. Rejected as simply a statement of position and argument in support of Petitioner's position. 17. Adopted in Finding of Fact 1. 18-19. Adopted in part in Finding of Fact 14, but rejected in part in Finding of Fact 17. Rejected as simply a statement of position and argument thereon. Rejected in Findings of Fact 14, 17 and otherwise not based on competent substantial evidence. Adopted in part in Findings of Fact 2, 8 but otherwise rejected as simply a statement of position and argument thereon. Rulings on Respondent's Proposed Findings of Fact: 1. Adopted in Finding of Fact 13. 2-3. Rejected as irrelevant and unnecessary in light of Findings of Fact 6, 7, 17. Adopted in Finding of Fact 14. Adopted in Finding of Fact 6. Adopted in Finding of Fact 14. Adopted in Finding of Fact 17. 8-12. Rejected as irrelevant, unnecessary and cumulative. 13. Adopted in part in Finding of Fact 14. 14. Adopted in Finding of Fact 1. 15. Adopted in Finding of Fact 2. 16. Adopted in Finding of Fact 3. 17. Adopted in Finding of Fact 4. 18. Adopted in Finding of Fact 5. 19. Adopted in Finding of Fact 6. 20. Adopted in Finding of Fact 7. 21. Adopted in Finding of Fact 8. 22. Adopted in Finding of Fact 9. 23. Adopted in Finding of Fact 10. 24. Adopted in Finding of Fact 11. 25. Adopted in Finding of Fact 12. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 18. Rulings on Intervenor's Proposed Findings of Fact: 1-2. Rejected as a conclusion of law and otherwise unnecessary. 3. Adopted, as to the first sentence; in Finding of Fact 17, otherwise rejected as simply a statement of position. 4-5. Rejected as simply a statement of position. Adopted in Findings of Fact 1-12 with the exception of proposed finding 6(k) which the transcript does not reflect as part of the stipulation, but which is adopted in Findings of Fact 14, 15, 17. Adopted in Finding of Fact 13. 8-10. Adopted in Finding of Fact 14. Rejected as simply a summary of testimony. Rejected as simply a summary of testimony, and otherwise cumulative and unnecessary. Adopted in Finding of Fact 18. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. 16-18. Adopted in Finding of Fact 16. 19. Rejected as irrelevant and unnecessary. 20-21. Adopted in part in Finding of Fact 17, but otherwise rejected as cumulative. 22-26. Rejected as cumulative and unnecessary. COPIES FURNISHED: William E. Powers, Jr., Esquire Post Office Box 11240 Tallahassee, Florida 32302 David P. Gauldin Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301 Joseph A. O'Friel Esquire 100 Twiggs Street Tampa, Florida 33602 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearings the following facts are found: At all times pertinent to this proceeding, Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983). However, since the pallets were not an agricultural product produced by Petitioner and were not considered in the price of the bahia sod but were exchanged back and forth between Petitioner and his customer, including Respondent American, they are not considered to be an agricultural product in this case and are excluded from any consideration for payment under Section 604.15-604.30, Florida Statutes. The amount charged Respondent American for these pallets was $1,188.00. At all times pertinent to this proceeding, Respondent American was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 3774 by the Department, and bonded by Respondent Peerless Insurance Company (Peerless) in the sum of $15,000 - Bond No. SK-2 87 38. At all times pertinent to this proceeding, Respondent Peerless was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). During the month of January, 1985 Respondent American purchased numerous pallets of bahia grass sod from Petitioner paying $16.00 per pallet but has refused to pay for 240 pallets at $16.00 per flat for a total amount of $3,840.00 picked up by Respondent American's employees and billed by Petitioner between January 16, 1985 and January 26, 1985. Respondent American did not contest having received 204 pallets of bahia grass sod represented by invoice number. 6774- for 18 pallets on 1/16/85; 6783, 6785, and 6788 for 18 pallets each on 1/17/85; 6791, 6793, 6794, 6795, and 6800 for 16 pallets each on 1/18/85 and 6799 for 18 pallets on 1/18/85, 6831 for 18 pallets on 1/28/85; and 6834 for 16 pallets on 1/30/85 but contested invoice numbers 6835 and 6836 for 18 pallets each on 1/26/85. Gary L. Curtis stipulated at the hearing that Respondent American had received the 36 pallets of bahia grass sod represented by invoice numbers 6835 and 6836 which left only the matter of Respondent American's contention that it was owed credit for 20 pallets of bahia sod received in December, 1984 that was of poor quality and fell apart and had to be replaced because it could not be used. The evidence was insufficient to prove that any of the sod purchased by Respondent American from Petitioner fell apart or was of poor quality and as a result could not he utilized by Respondent American.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein it is RECOMMENDED that Respondent American be ordered to pay to the Petitioner the sum of $3,840.00. It is further RECOMMENDED that if Respondent American fails to timely pay the Petitioner as ordered then Respondent Peerless be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 10th day of March, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 10th day of March, 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight, Chief License and Bond Mayo Building Tallahassee, Florida 32301 Gary L. Curtis, President American Sod Company, Inc. Post Office Box 1370 Longwood, Florida 32750 Mid Florida Sod Company 4141 Canoe Creek Road St. Cloud, Florida 32769 Peerless Insurance Company 611 Aymore Road/Suite 202 Winter Park, Florida 32789 Raymond E. Cramer Esquire Post Office Box 607 St. Cloud, Florida 32769
The Issue The two major issues in this case are as follows: Was the failure of Datamaxx to submit resumes of training and maintenance personnel as required by Performance Mandatory No. 10 of the Invitation to Bid a material deviation from the Invitation to Bid such as to render Datamaxx a nonresponsive bidder? If Datamaxx was a nonresponsive bidder, must the contract be awarded to Burroughs, or must DHRS, pursuant to Section 13A-1.002(3), Florida Administrative Code, have the contract rebid, or seek single source procurement or negotiation approval from the Division of Purchasing?
Findings Of Fact Based on the admissions of the parties, on the testimony of the witnesses at the hearing, and on the exhibits received in evidence, I make the following findings of fact: For at least the past 10 years, the DHRS Data Communications Network has been maintained by Burroughs on a sole source basis. At the end of the previous Burroughs Terminal Maintenance contract with Burroughs, the Department of General Services (DOS) asked DHRS to bid the contract in lieu of sole source procurement, it being the belief of DOS that there was competition in this area. On or about September 19, 1986, DHRS published an Invitation to Bid which advised prospective bidders that sealed bids would be opened on October 20, 1986, for a contract, known as "Burroughs Terminal Maintenance" [Bid No. 86 ATM] regarding maintenance of the terminals of the DHRS Data Communications Network. The Special Conditions of the Invitation to Bid contained, among others, the following provisions: The State has established certain require- ments with respect to bids to be submitted by bidders. The use of "shall," "must" or "will" (except to indicate simple futurity) in this Invitation to Bid indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with this Invitation to Bid requirements, provides an advantage to one bidder over other bidders, has a potentially significant effect on the quantity or quality of items bid, or on the cost to the State. Material deviations cannot be waived. (at p. 1) No negotiations, decision, or actions shall be initiated or executed by the bidder as a result of any discussions with any State employee. Only those communications which are in writing from the Department's Purchasing office may be considered as a duly authorized expression on behalf of the State. Also, only communications from bidders which are signed and in writing will be recognized by the State as duly authorized expressions on behalf of the bidder. (at p. 2) All personnel performing maintenance must be trained to service the equipment covered by this contract. Training shall be completed before the individual is assigned to service the equipment covered by this contract. Training shall be provided to whatever level is necessary to ensure the individual has the required qualifications to perform satisfactory maintenance service on Burroughs equipment listed in Attachment A of this Invitation to Bid. Bidder shall submit with their bid a summary of their Burroughs training program and resumes of personnel who will be performing this training and the resumes of personnel who will be per- forming the maintenance. (at p. 8) Bidder shall certify to the State, at the time the bid is submitted, that bidder has existing established service centers staffed with personnel trained to service the equipment covered by this contract . . . In lieu of this requirement, if bidder does not have existing established service centers, liaison office, and trained personnel, and bidder submits a plan for compliance, the required certification must be given the State no later than two (2) weeks prior to the anticipated starting date of the contract as indicated in the paragraph of this document entitled Calendar of Events. Failure to comply with this requirement shall result in rejection of the bid and award of the bid to the next lowest responsive bidder. The Invitation to Bid was drafted by the Department of Health and Rehabilitative Services. The only bidders on the contract (other than no- bids) were Burroughs and Datamaxx. DHRS found Burroughs and Datamaxx both to be responsive bidders and posted their bids making them public in the recognized manner of publicizing the bidder to be awarded a bid. Both bids were found to be responsive by DHRS at the time they were made public. The Datamaxx bid was the lowest bid and the Burroughs bid was the next to lowest bid. DHRS staff recommended the contract be awarded to Datamaxx. The Datamaxx bid was approximately $784,000 less than the Burroughs bid. In its bid Datamaxx indicated that it understood and agreed to all provisions of the Invitation to Bid, specifically including those dealing with Mandatory Requirements, Verbal Instruction Procedure, Rejection of Bids, Bid Evaluation, Performance Mandatories, and Certification. Datamaxx submitted the Certification required under the terms of the Invitation to Bid and did not submit a plan for compliance with its bid. Datamaxx never requested in writing that the requirement for resumes be waived, and DHRS never advised Datamaxx in writing that it did not have to submit the resumes. Datamaxx did not submit with its bid the resumes of training and maintenance personnel required under Performance Mandatory 10 of the Invitation to Bid. Performance Mandatory No. 10 required the submission of resumes with the bid, and did not concern an event that would take place after the bid had been let. DHRS considered the requirement for resumes to be a mandatory requirement. The qualifications of the persons who would be performing the maintenance under the contract would have a potentially significant effect on the quality of the maintenance provided. Nothing could be more material to the contract than the ability of the personnel to perform that contract. The difference in the dollar amount of the bids of Burroughs and Datamaxx influenced the decision of DHRS in finding Datamaxx to be a responsive bidder. This was a major reason Datamaxx was found to be a responsive bidder. In evaluating the Datamaxx bid, DHRS went outside the material provided in the Datamaxx bid. Subsequent to the posting of bids, DHRS met with Datamaxx and advised Datamaxx that its initial submission was deficient for not including resumes with the bid, that DHRS had waived the resumes, but that in order for DHRS to continue its recommendation that the bid be awarded to Datamaxx, DHRS had to have the resumes prior to the awarding of the bid. DHRS considered it an error and a deficiency in the bid that the resumes were not furnished. Datamaxx, on November 6, 1986, advised DHRS in a letter to Charles Ray that it would submit a plan which would address, among other things, service personnel resumes by November 17, 1986. DHRS could not have considered Datamaxx's letter of November 6, 1986, in evaluating whether Datamaxx was a responsive bidder, because that letter was not received until after DHRS had already found Datamaxx to be a responsive bidder and recommended that the contract be awarded to Datamaxx. Had Datamaxx not submitted the resumes prior to November 17, 1986, DHRS staff would have recommended that the award of the contract be withdrawn. The performance the State would receive under the contract would directly depend on the qualifications of the persons performing the service and the maintenance, and the resumes would be the only source of information regarding the qualifications of the personnel.
Recommendation For all of the foregoing reasons, it is recommended that a final order be entered to the following effect: Concluding that the bid submitted by Datamaxx USA Corporation on Bid No. 86 ATM should be rejected on the grounds that it is not responsive, Concluding that the bid submitted by Burroughs Corporation should be rejected on the basis of Rule 13A-1.002(3), Florida Administrative Code, and, Providing for the agency to issue a second invitation to bid/request for proposals or take other action provided by Rule 13A-1.002(3), Florida Administrative Code. DONE AND ENTERED this 25th day of June 1987, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of June 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-4460B1D The following are my specific rulings on each of the proposed findings of fact submitted by both parties: Findings proposed by Petitioner Paragraphs 1 through 19 are accepted with a few minor editorial modifications. The first two lines of paragraph 20 are rejected as redundant. The remainder of paragraph 20 is accepted. Findings proposed by Respondent Paragraphs 1 and 2 are accepted in substance. Paragraph 3 is rejected as constituting unnecessary details. Paragraphs 4 through 7 are accepted. Paragraphs 8, 9, and 10 are rejected as irrelevant. Paragraph 11 is rejected in part as irrelevant and in part as contrary to the greater weight of the evidence. Paragraph 12 is accepted. Paragraph 13 is rejected as constituting irrelevant and unnecessary details. COPIES FURNISHED: Robert L. Powell Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Edgar Lee Elzie, Jr., Esquire MacFarlane, Ferguson, Allison & Kelly 804 First Florida Bank Building Tallahassee, Florida 32301 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the petition should be dismissed for failure to comply with Section 120.53(5)(b), Florida Statutes.
Findings Of Fact The Petitioner filed bids for ITB No. 4-600-370-K which, if responsive, were the apparent low bid for the Class 3 bid and next to lowest for Class 4 and 5 categories of copier equipment listed in the ITB. [Petition, page 8] On October 16, 1995, the Department posted the intended awards and disqualified all three of Petitioner's bids as nonresponsive. [Petitioner's memorandum in opposition to Respondent's motion for summary recommended order (MEMO), paragraph 1] The Petitioner filed a notice of protest against the disqualification of its bids on October 19, 1995. [MEMO, paragraph 1] The petition for formal hearing was filed with the Department on October 30, 1995. [MEMO, paragraph 1] The petition for formal hearing alleged, in part: SUMMARY OF GROUNDS FOR PROTEST ...The Division of Purchasing ("Division") disqualified all three of Petitioner's bids on vague grounds identified by three words: "Disquality -- Manufacturers Certification. " See Ex. 3 hereto at 1. There are two provisions in the ITB that require the "certification" of the Original Equipment Manufacturer ("OEM"). See Ex. 1 hereto at 3 and 32. Since the State has not seen fit to adequately identify which provision(s) are at issue, Petitioner is required to address both provisions that might apply. Both of these requirements are completely arbitrary, irrational and, most importantly, anticompeti- tive, for the reasons described further in Section 3 below. The "certification" require- ments are arbitrary and irrational because they are not designed to obtain the equipment at issue for the lowest price. Indeed, they ensure that the State will pay higher prices than it would without the requirements. Neither are the "certification" requirements rationally related to the quality of the equip- ment that was bid by Petitioner or the other bidders, including the OEMs. Finally, these requirements are blatantly anticompetitive be- cause they place the right to exclude all other competitors in the hands of the OEMs, which can deny such certification with impunity, ensuring that only those OEM bidders will prevail, as was the outcome here. This preferential treat- ment not only runs counter to the express intent of the legislature to promote free and open competition, it also raises serious anti- trust concerns. Disqualification of Petitioner's bids on the grounds presented by the Division should be reversed and the contract awards should be adjusted accordingly. * * * The preferential treatment provided to Xerox, Kodak, and other OEMs by insertion of the "certification" requirements in this ITB is consistent with a longstanding history of such anticompetitive treatment of independent providers of the equipment and service at issue, resulting in higher prices (but not necessarily higher quality) for the State's taxpayers. Petitioner's recent experience in dealing with the State on these matters is also consistent with this pattern of bias toward OEMs. * * * 3. BASIS OF PROTEST A. The Division of Purchasing Has Acted Arbitrarily and in Restraint of Trade * * * Petitioner has identified two potentially applicable provisions that the Division could be relying on for its disqualification decision. First, in the ITB's definition of "acceptable equipment" it states that bids for classes 3, 4, 5 and 6 shall be for "new and newly remanu- factured equipment only," and that "newly remanufactured equipment must be certified by the manufacturer." Ex. 1 at 3. This pro- vision also states that "remanufactured" equip- ment is not acceptable. Second, the ITB requires certification by the manufacturer as to the copy speed, recommended monthly copy volume, and other basic specifications of the equipment models being bid. Ex. 1 at 32. Both of these provisions are irrational, arbitrary, and clearly anticompetitive. * * * The Division's definition of acceptable equipment bears no relationship to the actual remanufacturing processes used by Petitioner or Xerox. Even if Xerox certifies its own "remanufactured" equipment, the State only receives assurances that the remanufacturing process used by Xerox meets certain standards. Petitioner certifies that its equipment meets certain quality and performance standards, just like Xerox does. There is no rational reason why self-certification of the equipment at issue would provide any different assurances of quality for the State. * * * 2. Certification by the OEM of Copy Speed and Other Basic Specifications Petitioner provided a sworn verification that its equipment meets the copy speed, recommended monthly copy volume, and other minimum specifications for each category of equipment for which it submitted bids. Its certification is based on the same procedures used by Xerox to certify its own equipment. There is no rational reason why that certifi- cation cannot meet the needs of the State. To insist upon certification only from the OEM is an arbitrary and anticompetitive requirement not related to quality or designed to achieve the lowest price. * * * This requirement also is blatantly anticompet- itive. Petitioner is in direct competition with Xerox for the sale and maintenance of the equipment at issue. It is irrational for the Division to expect Xerox to provide such certification to its competitors, even as to this type of uncontroversial information unless award to Xerox is the intended goal. The ITB required a manufacturer's certification which specified a notarized certification of the copy speed, recommended monthly copy volume, and other minimum specifications for the equipment bid. [Exhibit 1 to the Petition] The bids submitted by Petitioner included a certification executed by Advantage's president, Jane Beekmann. [MEMO, paragraph 3] The equipment specified by Advantage was manufactured by Xerox but was remanufactured by Advantage. [MEMO, paragraph 3, and as represented by Petitioner's counsel] Advantage maintains it may certify its remanufactured equipment in the same manner that Xerox certified its equipment. [MEMO, paragraph 5] The ITB provided, in pertinent part: ACCEPTABLE EQUIPMENT ...Bids for Classes 3, 4, 5 and 6 shall be for new and newly remanufactured equipment only. In Classes 3, 4, 5 and 6 newly remanu- factured equipment must be certified by the manufacturer. The ITB further provided, at page 32: This is to certify the manufacturer's recommended monthly volumes and certified copy speed (specify from the glass or document feeder) for the machines listed below. Monthly volume indicates the number of copies which can be made per month by the machine without causing excessive downtime. It does not necessarily denote the maximum number of copies that can be made by that particular machine. NOTE: This must be executed by the manu- facturer and must be notarized. Dealers are not authorized to sign this certification form. Failure to submit this certification with your bid shall result in disqualification of bid. The certifications provided by Petitioner identified the machines proposed by Advantage as the Xerox 5100, the Xerox 1090 w/finisher; and the Xerox 1075 w/finisher. Each of these certifications identified Advantage as the name of the manufacturer. [Exhibit C to the motion not disputed by Petitioner] Petitioner did not manufacture the Xerox 5100, the Xerox 1090 w/finisher; or the Xerox 1075 w/finisher. [Petitioner represents it is the remanufacturer, MEMO, paragraph 2] Petitioner maintains, and for purposes of this order it is accepted, that Advantage is the remanufacturer of the Xerox 5100, the Xerox 1090 w/finisher; or the Xerox 1075 w/finisher. [MEMO, paragraph 2] Petitioner did not timely challenge the specifications for ITB No. 4- 600-370-K.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of General Services enter a final order dismissing the petition of Advantage as an untimely challenge to the ITB specifications. DONE AND ENTERED this 5th day of January, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1996. COPIES FURNISHED: William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Department of Management Services Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Cindy Horne Assistant General Counsel Department of General Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 J. Daniel Leftwich Berry & Leftwich 2000 K Street, Northwest. Suite 450 Washington, D.C. 20006 James Leech Post Office Box 7473 Fort Lauderdale, Florida 33338 Lawrence P. Stevenson Hume F. Coleman HOLLAND & KNIGHT Post Office Drawer 810 Tallahassee, Florida 32302
The Issue This is a bid protest proceeding to determine which of several competing bidders should be awarded contracts to perform work related to the Everglades restoration activities of the Respondent. The primary issues litigated at the hearing related to the sufficiency of the bids of the Petitioner and of each of the Intervenors regarding the M/WBE requirements of the bid specifications.
Findings Of Fact On May 9, 1997, the District issued a RFB for project number C-ECP. The purpose of the RFB was to solicit responsive bids from responsible bidders for the construction of two stormwater treatment areas: STA-1W and STA-2. The STA-1W project involves the construction of a wetland of approximately 6700 acres, including more than 12 miles of canal and levee construction, concrete spillways, culverts, telemetry controls, and ancillary facilities. The STA-2 project involves the construction of approximately 6430 acres, including 45 miles of canal and levee construction/enlargement, concrete water control structures, culverts, telemetry controls, and ancillary facilities. Prior to the issuance of the RFB, the District put substantial time and effort into M/WBE outreach activities. These activities included: (1) coordinating with and identifying M/WBE resource agencies to assist contractors in finding available and interested M/WBE subcontractors; (2) hiring a consultant to contact M/WBE firms and inform them of the contracting opportunities available for the C-ECP project, including subcontractor work; (3) conducting workshops for contractors to meet potential M/WBE subcontractors; (4) expediting the M/WBE certification process of M/WBE applicant firms; and (5) holding both mandatory and voluntary pre-bid meetings to explain the requirements of the RFB specifications and the M/WBE requirements. The District made extensive efforts to ensure that contractors knew about the project and the availability of M/WBE subcontractors. Subsequent to issuance of the RFB, the District issued ten addenda. Addendum Number 1 established a minimum M/WBE participation goal of sixteen percent and included a list of M/WBE contractors (the "vendor list"). The vendor list was prepared by the District to identify M/WBE subcontractors who might be available to work on the project. It was prepared in consultation with the District’s project managers and identified work components of the project based on commodity codes located within the District’s database. Addendum Number 9 required the bidders to execute and submit a Good Faith Efforts Checklist form and included a revised vendor list. The RFB provided in the Supplemental Conditions, Basis for Bid Award, that: Bidders may bid on Option "A" STA-1W, and/or Option "B" STA-2, and/or Option "C" combination of STA-1W and STA-2. Bid award will be made based on the lowest responsive and responsible bid amount from Option "A" and Option "B", or the combined amount in Option "C", whichever is lower in total dollars for the completion of STA-1W and STA- 2, after considering bid incentives (as applicable) in accordance with the District’s M/WBE Rule 40E-7.628, F.A.C. The RFB identified the project as "C-ECP, Construction of STA-1W & STA-2, Palm Beach County, Florida." However, contractors and subcontractors used various names in identifying the project, including C-ECP, STA-1W, STA-2, and construction of STA-1W and STA-2. The RFB sets forth the M/WBE requirements for the project in Article 7 of the Instructions to Bidders. Section 7.03 provides in part that: Bidders not meeting the established M/WBE goal shall make and document the good faith efforts used to meet established goals. The Bidder’s efforts shall be designed to ensure that available M/WBE’s are identified, properly noticed, and provided the maximum opportunity to compete for and perform work under any contract awarded as a result of this solicitation. EVIDENCE OF GOOD FAITH EFFORTS IS REQUIRED TO BE SUBMITTED WITH THE BID IF THE BIDDER DOES NOT MEET THE SPECIFIED M/WBE GOAL. The original deadline for submission of bids was June 25, 1997, but the deadline was extended three weeks by Addendum Number 3. The new submission deadline for bids was July 15, 1997, at 2:30 p.m. Six bids were submitted for Option "A," six bids were submitted for Option "B," and three bids were submitted for Option "C." The low dollar bid for Option "A" was submitted by Harry Pepper in the amount of $18,334,100. The low dollar bid for Option "B" was submitted by the Petitioner in the amount of $24,537,450. The second low dollar amount was submitted by Bergeron in the amount of $24,570,500. The low dollar bid for Option "C" was submitted by the Petitioner in the amount of $42,577,669. The Petitioner’s bid for Option "C" was $326,931 lower than the sum of Harry Pepper’s bid for Option "A" and Bergeron’s bid for Option "B." When the lowest bidder does not meet the M/WBE participation goal, Rule 40E-7.628, Florida Administrative Code, mandates that the next lowest bidder(s) meeting that goal shall be awarded the contract if the difference in bid amounts between the lowest and next lowest bid(s) falls within the maximum bid incentive amount. For this RFB, the bid incentive for the project was one percent of the lowest bid amount which in this case resulted in a maximum bid incentive amount of $425,776. The difference between the combined sum of Harry Pepper’s bid for Option "A" and Bergeron’s bid for Option "B," and the amount of the Petitioner’s bid for Option "C," was less than the bid incentive amount of $425,776. Soon after the bids were opened on July 15, 1997, Carolyn Williams, Director of the Office of Supplier Diversity and Outreach ("SDO"), received the sections of the bids relating to compliance with the District M/WBE requirements for her review and analysis. Mrs. Williams is responsible for making the ultimate recommendation as to whether or not a bid is responsive with regard to the District’s M/WBE requirements. By the afternoon of July 16, 1997, Mrs. Williams had reached a final determination that the Petitioner’s bid was nonresponsive due to failure to meet the M/WBE requirements of the RFB. The specific analysis of the Petitioner’s failure to document good faith efforts was subsequently memorialized in a memorandum dated July 29, 1997, from Mrs. Williams to Glenn Miller of the District’s Office of Counsel. Subsequent to making the determination of nonresponsiveness, the SDO office surveyed firms listed on a spreadsheet submitted as part of the Petitioner’s good faith efforts documentation (the spreadsheet titled "Everglades Nutrient Removal Project Potential Quotations"). The purpose of contacting these firms was an effort to understand what had actually transpired in the course of the Petitioner’s efforts to meet the M/WBE requirements and to assist the District in future procurements. Information obtained from these subcontractors was not a factor in Mrs. Williams’ determination that the Petitioner’s bid was nonresponsive. On July 21, 1997, the District issued its Notice of Intent to Award a contract to Harry Pepper and Bergeron for Options "A" and "B," respectively, for the C-ECP project. The Petitioner’s low bids for Options "B" and "C" were deemed nonresponsive on the grounds that the Petitioner had failed to meet the minimum participation goal of 16 percent and that the Petitioner failed to document its good faith efforts to meet such goal. This determination was set forth in Mrs. Williams’ memorandum to the Procurement Director dated July 21, 1997, and attached to the Notice of Intent to Award On July 24, 1997, the Petitioner filed a Notice of Protest. Subsequently, the Petitioner filed a Formal Written Protest/Petition for Formal Hearing on August 8, 1997, and an Amended Formal Written Protest/Petition for Formal Hearing on August 22, 1997. Harry Pepper submitted a bid for Option "A" that indicated an M/WBE subcontractor participation of 16 percent. Harry Pepper’s Schedule of Subcontractor/Minority Business Enterprise (M/WBE) Participation ("Schedule of Participation") form indicated that two M/WBE subcontractors would be utilized by Harry Pepper to achieve the M/WBE participation goal of 16 percent: Suca Pipe Supply, Inc. ("Suca") and Atlantic Environmental Inc. ("AEI"). Harry Pepper provided executed Statement of Intent to Perform as a Subcontractor ("Statement of Intent") forms from both Suca and AEI. Suca and AEI were identified by the District as M/WBE businesses available for use by any bidder as set forth in addendum number 1 and addendum number 9 to the RFB. Suca’s Statement of Intent indicated that it would supply roller and slide gates and corrugated metal pipe to Harry Pepper. Suca is a stocker and distributor of underground utilities, pipes, valves, fittings, and construction related materials. In addition to supplying materials, Suca provides service activities to contractors, including handling of shop drawings, picking up materials from the manufacturer, getting missing parts to the job site and, on occasion, overseeing the installation of the materials. Suca maintains a warehouse and office facility of approximately 4,000 square feet with six offices and a conference room on approximately 1.5 acres of land. Bergeron submitted a bid for Option "B" that indicated an M/WBE subcontractor participation of 17 percent. Bergeron’s Schedule of Participation form indicated that one M/WBE subcontractor, Gulf Construction Group, Inc. ("Gulf"), would be utilized by Bergeron to achieve the M/WBE participation goal of 16 percent. Bergeron provided an executed Statement of Intent form from Gulf stating that it would provide "pipe and structures" for an agreed price of $4,176,985. Gulf was identified by the District as an M/WBE business available for use by any bidder as set forth in addendum number 1 and addendum number 9 to the RFB. In the blank space for the Project Number on the Statement of Intent form, Gulf wrote: "Construction of STA-1A Works & STA-2 Works."2 The name of the subject project as stated on the RFB is "Construction of STA-1W & STA-2, Palm Beach County, Florida." The number of the subject project as stated on the RFB is "C-ECP." Obviously, Gulf wrote the "name" of the project where it should have written the "number" of the project. The Statement of Intent Form does not request information as to whether the M/WBE subcontractor is agreeing to perform work on option "A," "B," or "C" of the subject project. Bergeron committed to using Gulf to perform $4,176,985 worth of work on the STA-2 contract by submitting the Schedule of Participation form, which indicates the total amount of work to be performed by Gulf and the total amount of Bergeron’s bid for that contract alone. In reviewing the Bergeron bid, the District considered the entirety of the bid package, including Bergeron’s Schedule of Participation form and the face of the bid, itself, which indicated that Bergeron was bidding only on Option "B." It was clear to the District that the documents submitted by Bergeron, including the documents from Gulf, were intended to apply only to the Option "B" bid. Gulf’s use of the project name instead of the project number is not a material deviation from the requirements of the RFB. Gulf’s use of the project name instead of the project number did not afford to Bergeron any competitive advantage not enjoyed by the other bidders. Gulf’s use of the project name instead of the project number did not provide the District with any more or any less information about what Gulf intended to do than if Gulf had used the project number. Gulf did not mark the box on the Statement of Intent form indicating whether it would perform as a corporation, partnership, individual, or joint venture. Gulf’s failure to mark the "corporation" box was not a material irregularity. There was no confusion created by the omission as Gulf obviously is not a partnership, individual, or joint venture. The abbreviation "Inc." is in Gulf’s name and appeared on the form. Moreover, it was apparent that Gulf was not proposing to perform in the capacity of a joint venture. The Petitioner submitted a bid for Option "C" that indicated an M/WBE subcontractor participation of 5.6 percent. The Petitioner’s Schedule of Participation form indicated that two M/WBE subcontractors, F.R.S. Associates, Inc. ("F.R.S.") and Contract Site Services, Inc., would be utilized. The Petitioner attached an executed quotation from both subcontractors to the Statement of Intent forms. However, because the Statement of Intent from F.R.S. was not signed by the subcontractor, as required by Section 7.05, A.2. of the RFB, the District reduced the Petitioner’s M/WBE participation to 4.78 percent.3 Inasmuch as the Petitioner’s M/WBE participation did not meet the 16 percent goal, the Petitioner submitted documentation of its good faith efforts as part of its bid. Until the last few hours before the bid submission deadline, the Petitioner intended to, and expected to, achieve the goal of at least 16 percent M/WBE participation. Only a few hours before the bid submission deadline the Petitioner realized that it would not be able to achieve the M/WBE participation goals, and that it would have to include documentation of its good faith efforts with its bid. The good faith efforts documentation submitted by the Petitioner included the following: a good faith efforts checklist executed by the President and CEO of the Petitioner; a cover document describing certain of the attached documentation and listing several newspapers in which the Petitioner purportedly advertised; a summary of the Petitioner’s M/WBE participation in federal contracts; a copy of the District’s M/WBE vendor activity report (Addendum 9, attachment 13 to the RFB) with annotations added by the Petitioner to indicate dates of contacts with M/WBE firms and notations of responses; a spreadsheet entitled Everglades Nutrient Removal Project Potential Quotations ("ENR spreadsheet") with columns indicating disciplines, names and dates of contacts, whether the firms were M/WBE’s, and notations of responses received; a form letter addressed to "All Offerors;" a copy of the District’s Commodity Vendor List, a copy of the District’s Detail Vendor Lists for Option "A" and Option "B," and a series of untitled lists of names and addresses (Enclosure One); a form letter "To Whom it May Concern" together with a list of M/WBE resource organizations (Enclosure Two); a copy of an announcement identified in the cover document as a posting on the Petitioner’s internet home page (Enclosure Three); a copy of the ABC Membership Directory/Buyers Guide and a copy of the Associated General Contractors of America Regional Membership Listing (Enclosure Four); and copies of a number of envelopes apparently returned to the Petitioner because of incorrect addresses. The Documentation of Good Faith Efforts Checklist required that a bidder providing documentation of good faith efforts include a written cover letter summarizing the bidder’s efforts and identifying the bidder’s attached support documentation. The Petitioner included a one-page cover document in its good faith efforts package to meet that requirement. The cover document stated that an announcement had been sent to firms on the District’s vendor lists, that M/WBE support organizations had been contacted, that an announcement had been posted on the Petitioner’s internet home page, that certain other contractors had been contacted and that advertisements had been placed in listed newspapers. The document further stated that 1131 total vendors and 531 M/WBE vendors had been contacted. The document did not indicate how many quotations had been received from M/WBE businesses. The Petitioner’s cover document did not identify all of the documents provided in the good faith efforts package. Further, the cover document did not explain the meaning of the annotations on the District’s vendor list, did not explain what the ENR spreadsheet represented, and did not explain the relationship between the vendor list and the spreadsheet. The good faith efforts documentation requirements are addressed in Section 7.08 of the RFB, which sets forth the material criteria of good faith efforts. For each of the criteria, the RFB first identifies the factors to be considered by the District in reviewing good faith efforts documentation and then describes the specific documents or evidence to be submitted. In determining what process the contractor used to identify M/WBE firms and contracting opportunities, Section 7.08, and 2. of the RFB contains the factors to be considered and states as follows: The Bidder shall identify available M/WBE firms and identify contracting opportunities for M/WBE participation. The Bidder shall be deemed to have made a good faith effort if documentation is provided that states the Bidder: selected portions of the project to be performed by available M/WBE firms, including dividing contracts or combining elements of work into economically feasible units, areas or quantities to facilitate maximum participation and increase the possibility of meeting the M/WBE goal; and determined M/WBE availability and developed a proposed M/WBE subcontractor/ supplier list by requesting and using the assistance of the DISTRICT’s SDO Office, state and local minority/woman business development agencies or contractor’s groups with knowledge of M/WBE availability. The "process" criterion requires the bidder to indicate to the District the process that the bidder used in identifying available firms and matching them to contracting opportunities for the project which have been identified by the bidder. The District assists the bidders in identifying contracting opportunities by providing them with a list of available M/WBE firms listed by commodity code as a starting point. The bidder is expected to review the project and apportion the work into subcontract units or components. The District also assists the bidder by providing a list of resource agencies for the bidder to use in identifying firms other than those on the District’s vendor list. The documentation needed to demonstrate compliance with Section 7.08, 1.A. is described in Section 7.08, 1.B.1 through 4 as follows: The DISTRICT, in determining good faith efforts made under subsection 1.A., shall require information including: copies of letters/transmittals to all resource agencies used to identify available M/WBE firms, including the proposed M/WBE subcontractor/supplier list developed; and the telephone numbers and the primary contact for each M/WBE firm listed; and a complete list of subcontract/supplier opportunities on the project; and identification of those opportunities for which available M/WBE firms were solicited. With respect to the requirement that the bidder provide copies of letters to all resource agencies used to identify available M/WBE firms, the Petitioner submitted with its good faith documentation package an undated form letter to the list of resource agencies which stated: To Whom it May Concern Please post and/or distribute the attached announcement conveying IT Corporation’s interest in receiving proposals from M/WBE organizations to support the South Florida Water management District’s project entitled, 'Construction of Stormwater Treatment Areas STA-1W and STA-2, Palm Beach County, Florida.' The District found the form letter to be insufficient because the letter was not drafted in a manner that was reasonably calculated to get an effective response from M/WBE organizations. It was unclear whether or not the letter was soliciting organizations for assistance in identifying available M/WBE firms or soliciting proposals from M/WBE organizations. Additionally, the letter failed to clearly state the purpose for which it was being sent, and there was no indication as to whether the letter was sent in sufficient time to elicit responses from resource agencies. With respect to the telephone numbers and the primary contact for each M/WBE firm listed, the Petitioner provided the ENR spreadsheet, the annotated copy of the District’s vendor list, and a series of untitled lists of names and addresses. The District found the Petitioner’s submission to be insufficient because it was difficult to determine whether the lists included in the good faith efforts submission included all M/WBE firms contacted. Additionally, the untitled lists did not identify which firms listed were M/WBE’s. The District was initially uncertain as to the applicability of the ENR spreadsheet to this project because it incorrectly referenced a project that the District had recently bid and awarded; consequently, there was a concern that the Petitioner had inadvertently included the spreadsheet from another project. The District was eventually able to confirm that the spreadsheet was relevant, by calling a number of the firms on the list to determine whether they had been contacted by the Petitioner. Nevertheless, the District found the document to be insufficient to meet the good faith efforts requirements. With respect to the requirement that a complete list of subcontractor opportunities for the project be provided, the Petitioner submitted the District’s annotated vendor list, which included District commodity codes, and the ENR spreadsheet, which included a column identifying disciplines in which quotations were being requested. The Petitioner utilized the scopes of work identified by the District and further broke the project down by Construction Specification Institute Code. It was the Petitioner’s expectation that the subcontractors would identify those parts of the project for which they wished to submit a quotation. The District found the Petitioner’s submission to be insufficient to meet the requirements of Section 7.08, 1.B.3. because the use of the District’s identification of scopes of work should only be a starting point in defining opportunities for subcontractors. Further, it is not sufficient for the bidder to rely solely on the M/WBE subcontractors, themselves, to identify portions of the project appropriate for subcontracting opportunities. It is the responsibility of the bidder to break out the project into potential subcontracting opportunities. With respect to those opportunities for which available M/WBE firms were solicited, the Petitioner submitted a form letter to "All Offerors" and the District’s annotated vendor list. The form letter read as follows: IT Request for Proposal No. 772125 FIELD(Contact Name) FIELD(Company) FIELD(Street Address) FIELD(City, State, Zip) FIELD(Telephone) TO ALL OFFERORS: IT Corporation is actively pursuing the following project: South Florida Water Management District Construction of STA-1W & STA-2 Palm Beach County, Florida Number: C-ECP DATE Therefore, your expression of interest in participating with us is being solicited. Your project scope letter, including any inclusions, exclusions, and terms and conditions must be received on or before: July 7, 1997 @ 2:00 p.m. Faxed proposals will be accepted. Contract documents, specifications, and drawings can be reviewed or purchased at the following locations: The South Florida Water Management District Procurement Office, B-1 Building 3301 Gun Club Road West Palm Beach, Florida 33406 561/687-6391 IT Corporation Miami Lakes Office 14505 Commerce Way, Suite 400 Miami Lakes, Florida 33016 305/819-2335 All technical questions for this solicitation should be directed to Phil Wasler or Frank Pescatore at 412/372- 7701. We look forward to receiving your proposal. IT Corporation 2790 Mosside Boulevard Monroeville, Pennsylvania 15146-2792 Fax No: 412/856-9912 Telephone No: 412/372-7701 It was the Petitioner’s position that the form letter adequately identified the project opportunities as construction work. The District found the letter to be insufficient, primarily because the letter was generic and did not identify specific portions of the project for which individual subcontractors were being solicited. In determining what methods the bidder has used in notifying M/WBE firms of opportunities, Section 7.08, 2.A.1. through 3. of the RFB contains the factors to be considered and states as follows: The methods used by the Bidder to notify and inform available M/WBE firms of the contracting opportunities shall be specified. The Bidder shall be deemed to have made a good faith effort under subparagraph 2. of this rule if: the Bidder provided written notice to available M/WBE firms concerning subcontract/supplier opportunities on the project in sufficient time (minimum two [2] weeks) to allow response and effective participation; and the Bidder advertised subcontract/supplier opportunities in general circulation, and/or minority-focused, media in sufficient time to allow response; and the Bidder followed up with interested M/WBE firms to provide detailed information about: presolicitation meetings; statement of work; Bidder’s project manager; assistance the Bidder offered subcontractors with insurance requirements; payment schedules; proposal addenda; minority/woman business assistance agencies, etc. The "methods" criterion is intended to ensure that the contractor used appropriate and effective methods to notify M/WBE firms of subcontracting opportunities. Since there is a perception in the M/WBE community that contractors often do not make a genuine effort to reach out to M/WBE subcontractors, it is important that the bidder use effective methods in matching identified subcontracting opportunities to available and capable M/WBE firms. The documentation needed to demonstrate compliance with Section 7.08, 2.A. is stated in Section 7.08, 2.B.1. through 4. as follows: The DISTRICT, in determining efforts made under subsection 2.A., shall require information with the sealed Bid, including: copies of individually addressed letters and/or requests for quotations issued to M/WBE firms; and the individual letters or requests for quotations must reference the type of work the M/WBE firms were being solicited to perform; and the advertisement or the tear sheet from newspapers used, the follow-up correspondence to M/WBE firms and/or minutes of meetings held with M/WBE subcontractors or suppliers. With respect to the requirement that the Petitioner submit copies of individual letters and/or requests for quotations issued to M/WBE firms which referenced the type of work the M/WBE firms were being solicited to perform, the Petitioner submitted a form letter to "All Offerors" stating the Petitioner’s intent to bid on construction of STA-1W and STA-2, and Enclosure One to the good faith efforts package, which contained various lists of firms, both M/WBE and non-M/WBE. The Petitioner did not include any copies of individually addressed letters. The Petitioner was of the view, based on modern business practice, that it was not important to provide copies of individually addressed letters since the form letter had blank fields to fill in the name, address, and telephone numbers of those to whom the letter was sent. There was no documentation indicating when letters might have been mailed other than dates on copies of a few returned envelopes that were submitted with the Petitioner’s good faith efforts package. The District found the Petitioner’s documentation to be insufficient because the Petitioner did not provide copies of any of the individual letters. The form letter that the Petitioner provided failed to identify specific services or products for which subcontractor proposals were being solicited. Further, it was not possible to determine from an undated letter whether notice had been given in sufficient time to allow M/WBE firms to respond to the solicitation. The form letter did not identify the scope of work for which any individual subcontractor was being solicited. Instead, the Petitioner expected the subcontractors to identify those parts of the project they were interested in. With respect to the requirement that the Petitioner provide a copy of the newspaper advertisement or tear sheets, the Petitioner submitted a cover document referencing seven newspapers in which it claimed to have placed advertisements. The failure to provide the actual advertisement or tear sheet was an oversight on the part of the Petitioner. The District found the Petitioner’s documentation to be insufficient because it was not possible to verify that the advertisements had been placed in the listed newspapers and several papers listed in the Petitioner’s cover document were not readily identifiable. Additionally, without proof of publication, the District could not determine whether any of the newspaper advertisements had been placed in sufficient time to allow M/WBE firms to respond. With respect to the requirement that the Petitioner submit documentation of follow-up correspondence to M/WBE firms or minutes of meetings with M/WBE subcontractors, the Petitioner submitted the ENR spreadsheet which contained a column labeled "Response." Under that column the Petitioner had made notations such as "will bid," "sent scope," or "will call back." The Petitioner’s good faith efforts package did not include any minutes of any meetings between the Petitioner and any M/WBE subcontractors. The District found the Petitioner’s submission to be insufficient because there were no documents in the good faith efforts package that constituted follow-up correspondence or minutes of meetings held with M/WBE subcontractors. The Petitioner’s own notations on the ENR spreadsheet are not sufficient to document whether follow-up correspondence was sent to or whether meetings were held with M/WBE subcontractors. In determining whether a bidder has used good faith efforts in evaluating the M/WBE firms and in contracting with them, Section 7.08, 3.A.1. through 3. of the RFB contains the factors to be considered and states as follows: The DISTRICT shall evaluate the good faith efforts used by the Bidder in evaluating each M/WBE subcontractor’s response and contracting with M/WBE firms. The Bidder shall be deemed to have made a good faith effort under subparagraph (3) of this rule if the Bidder: documented and considered all negotiations held from M/WBE subcontractors, not rejecting M/WBE subcontractors as unqualified without thoroughly investigating their capabilities; and documented reasons why quotations with M/WBE subcontractors were not used and followed up with notices to the unsuccessful M/WBE subcontractors indicating such reason(s); and has utilized M/WBE subcontractors or suppliers on major projects within the past 12 months. The "evaluation" criterion is intended to ensure that, once initial contacts have been made, firms are not rejected out of hand without fair consideration of their capabilities or because their price is a little higher than another non-M/WBE firm. To obtain that assurance, the District requires evidence of quotations actually received from M/WBE firms; documentation of attempts to assist the M/WBE firms to reach a competitive price; and an explanation of why quotations submitted by the M/WBE firms were not selected. The documentation needed to demonstrate compliance with Section 7.08, 3.A. is set forth in Section 7.08, 3.B. of the RFB and states as follows: The DISTRICT, in determining efforts made under subsection 3.A., shall require as part of its information: documentation on negotiations held with and quotations received from unsuccessful M/WBE subcontractors and a M/WBE Utilization Plan specifying the M/WBE firms that will be used during the project. With respect to the requirement that the Petitioner document its negotiations held with and quotations received from unsuccessful M/WBE subcontractors, the only documents the Petitioner submitted were the ENR spreadsheet and the annotated vendor list. The Petitioner provided a five-year summary of utilization of M/WBE subcontractors on major projects and a utilization plan showing that it intended to use two M/WBE subcontractors, F.R.S. and Contract Site Services. The District found that the Petitioner had submitted insufficient documentation to demonstrate compliance with this requirement because the District needed to see both actual quotations and substantive documentation regarding negotiations between the bidder and the subcontractor to determine whether an M/WBE subcontractor was properly evaluated by the bidder. While the column in the ENR spreadsheet labeled "Response" indicates that some M/WBE firms had submitted quotations, no copies of actual quotations were provided to the District. Moreover, there was no documentation explaining why M/WBE firms which had submitted quotations were not used. Although the "response" column on the ENR spreadsheet was intended to indicate that negotiations had taken place with some, but not all, of the listed M/WBE firms, that intent was not explained in the Petitioner’s cover document. Based on the foregoing, the District reasonably determined that the Petitioner’s good faith efforts documentation was insufficient to meet the standards set forth in each of the three areas of good faith efforts criteria.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the South Florida Water Management District issue a Final Order in this case to the following effect: Dismissing the petition and amended petition in this case and denying all relief requested by the Petitioner and awarding the subject contracts to the Intervenors. DONE AND ENTERED this 15th day of October, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1997.
The Issue The issue in this case is whether the St. Johns River Water Management District (SJRWMD) should dismiss Petitioner, George Robinson (Robinson), from employment or otherwise discipline him on charges of violating SJRWMD policies on sexual harassment, inappropriate and sexual behavior, conduct unbecoming an employee, and abuse of position.
Findings Of Fact According to all indications in SJRWMD's personnel records, and according to all the evidence, George Robinson was an exemplary SJRWMD employee for 14 years, at least up to the incidents giving rise to this proceeding. Not only do the personnel records and evidence reflect that Robinson competently and skillfully performed the work required of him throughout his employment, they also reflect that he gave SJRWMD no cause to discipline him for any reason whatsoever, at least up to the incidents giving rise to this proceeding. During this time, Robinson was a valuable and valued SJRWMD employee, rising to pay grade 26 as SJRWMD's Quality Assurance Officer making between $47,000 and $48,000 a year. But in early 2001, SJRWMD took action to terminate Robinson's employment on charges of violating SJRWMD policies on sexual harassment, inappropriate and sexual behavior, conduct unbecoming an employee, and abuse of position. SJRWMD Action to Terminate Robinson's Employment In autumn of 2001, a female SJRWMD employee named Jackie Winkleman began to express complaints about Robinson, who officially became her supervisor on or about October 8, 2001. (Prior to that time, Winkleman worked along with Robinson in the use of proprietary water quality data quality assurance system software called Hydron; the parties dispute whether Robinson should be considered the equivalent of Winkleman's supervisor prior to October 8, 2001. See Findings 45-46, infra.) Initially, Winkleman complained essentially that Robinson was taking credit for Hydron work actually performed by Winkleman, doing Hydron work Winkleman should have been doing, taking important Hydron work away from Winkleman, and relegating Winkleman to less important Hydron work. See Findings 62-63, infra. But by the end of November 2001, Winkleman began to make initially vague and later more explicit allegations essentially: that Robinson made unwelcome and offensive sexual advances during a business trip she and Robinson made to San Diego, California, for a Hydron user group conference in September 2001; that she rebuffed his advances; and that he was retaliating against her by creating a hostile work environment. Eventually, starting on or about December 21, 2001, SJRWMD placed Robinson on paid administrative leave and began an investigation of the allegations. In all, 12 SJRWMD employees were interviewed during the investigation, including Winkleman and Robinson. On December 28, 2001, SJRWMD investigators interviewed Winkleman for the first time. (In all, Winkleman was interviewed on five separate occasions. She also was given a subsequent opportunity to review and revise the interview statements produced by SJRWMD investigators. See Finding 18, infra.) During the first interview, Winkleman alleged: "It happened when we were in San Diego, CA (in September 2001). George told me that he 'wanted more from me than work.'" She meant he wanted a sexual relationship, too. Asked if that was the first occurrence, Winkleman answered: "He had said things before - once or twice - but I did not pay much attention to it at the time. I thought that I made it clear that I was not interested. It was in San Diego when it really all happened." She said in San Diego in 2001 Robinson "said things like that I was pretty, and he liked my personality. He mentioned . . . that he thought we could really get along well together. He said that he would take care of me - I could go back to school, but I would have to quit my job. He said that we could see how it (the relationship) would work while we were out there (San Diego)." She said: "I was in shock. I did not really say anything. I just went up to my room and stayed there for the rest of the week." Asked if Robinson ever touched her, she said he "tried to hug me." She said she "pulled away from him." Asked if Robinson had ever touched her before, she said: "I do not think so." She alleged essentially that Robinson then retaliated against her by creating a hostile work environment. Robinson was interviewed on short notice on January 3, 2002; time for the interview was short because Robinson had prior commitments, but Robinson briefly answered questions and denied Winkleman's allegations, saying his relationship with Winkleman started during the prior year's Hydron conference trip to San Diego in September 2000 and was consensual. SJRWMD investigators confronted Winkleman with Robinson's version of the facts on January 3, 2002, and re- interviewed her. This time, she stated (among other things) that Robinson also "kind of came on to me" after dinner and drinks in San Diego in 2000; she said that after they returned to the hotel and went into her room to watch television, he "just basically said he wanted to have sex with me." She said she told him: "I did not think that was a good idea, and he kept trying to persuade me." Asked if they had sex, she answered: "I do not remember." Even after being told by the interviewer, "It is important for you to remember!", Winkleman could only offer: "There was some touching." Winkleman also said that she did not remember if she was drunk at the time or how long Robinson stayed with her that night but that she did not think he stayed the night with her. The next day, Robinson returned to complete his interview. At this time, he answered questions more completely and gave the investigators extensive additional information that was at odds with Winkleman's allegations and statement in many important respects. Essentially, Robinson described in detail how he and Winkleman engaged in consensual activity of a sexual nature during the prior year's Hydron conference trip to San Diego in September 2000. He described in detail how they hugged, "French-kissed," undressed, and slept together in her bed (although they did not have sexual intercourse because he was unable to perform). He also told them that, in addition to a normal, positive, cordial, and productive work relationship throughout the rest of 2000 and during 2001, he and Winkleman also had a personal relationship that did not include any sexual activities beyond some hand- holding and friendly touching during that time period and that in San Diego in September 2001 he essentially asked Winkleman by words and actions if she was interested in resuming activity of a sexual nature, as they had done the year before. Robinson stated that Winkleman indicated to him that she was not interested and that he respected her wishes and never asked again. Robinson denied retaliating against Winkleman in any way or otherwise altering his work or personal relationship with her. SJRWMD investigators again re-interviewed Winkleman on January 9, 2002, concerning various statements made during the investigation to that point in time. On January 14, 2002, SJRWMD's Assistant Executive Director, John Wehle, sent Robinson a letter notifying him that SJRWMD was considering dismissing him effective January 31, 2002, for violating SJRWMD policies on sexual harassment, inappropriate and sexual behavior, conduct unbecoming an employee, and abuse of position. The letter focused on the 2001 San Diego trip and indicated that SJRWMD essentially believed Winkleman's allegations. In September 2001, you and the female employee traveled to California to attend a job-related conference and training program. Prior to this trip, you informed this employee that you had been told that you were to become her supervisor in the near future. You also told her that you would be in a position to get her promoted. Also prior to the trip, you used your authority as a supervisor to make reservations at a hotel other than the one recommended by District travel staff, reserving a "suite" that had one bed in an open, exposed loft with no door and another bed in a downstairs area below, effectively placing you and the female employee in the same room. After arriving in California, you told the female employee that the week in California would be useful in seeing how you and she would get along, meaning at a more intimate level. However, according to statements made by both of you, you made sexual advances toward her but she repeatedly rebuffed your advances. The female employee told the investigators that from the latter part of the California trip forward, your behavior and attitude toward her began to change from being friendly and nice toward her and giving her credit for her work and ideas to being "nasty" to her and taking credit for her work. She also stated that during the California trip you embarrassed her in front of the trainer with whom she regularly worked by correcting her in front of him and telling her how to run reports. She informed the investigators that your behavior toward her became so unbearable and interfered with her work to the extent that twice she reported the problem to the Assistant Division Director, who stated that he told you to "lighten up" on the female employee. She also stated that you told her that since she did not seem to be happy doing what she was doing that she should apply for a different job, to which she replied that it was not the job she was unhappy with. She reported that she felt you were trying to make her miserable so that she would leave. Although you contend that the sexually related activities and advances were consensual, the evidence gathered during the investigation makes it clear that your advances were unwelcome and offensive, and that following her rejection of your advances, your behavior toward and treatment of her interfered with her job duties and subjected her to an intimidating, hostile and offensive work environment. SJRWMD also indicated its view that Robinson's statements corroborated Winkleman to the extent of admitting Robinson "made sexual advances toward her but she repeatedly rebuffed your advances." Saying that SJRWMD had "no desire to take action that is unwarranted or based on false or incomplete information," Wehle's letter offered Robinson a "pre- determination conference" on January 30, 2002, which was accepted. SJRWMD investigators again re-interviewed Winkleman on January 22, 2002. Much of the interview involved discussions about the ongoing investigations that had been taking place at work. But it also covered inconsistencies between Robinson's version of the two San Diego trips and Winkleman's statements about them to date. Asked whether the two had intercourse in San Diego in September 2000, Winkleman answered: "I cannot remember. The last thing I can remember is him being pushy. I don't know why I can't remember - that's really scary." Asked if that could have been because she was drinking, she said she "didn't drink that much - only about 4 drinks." (She later revised her statement to add, "but I guess it could be possible." See Finding 18, infra.) It should be noted that the investigative report prepared on January 29, 2002, merged Winkleman's first interviews with part of her second interview. This gave the misimpression that Winkleman told the investigators about the 2000 San Diego trip during the first interview. At the pre-determination conference on January 30, 2002, Robinson again presented his version of the relationship between him and Winkleman. His presentation was consistent with his prior statements. As part of this presentation, Robinson pointed out that, contrary to what SJRWMD's letter said, he never conceded that Winkleman "repeatedly rebuffed [his] advances." By letter dated February 4, 2002, Wehle notified Robinson that, notwithstanding Robinson's pre-determination conference presentation, Robinson was being dismissed effective February 1, 2002. Wehle stated: "After careful consideration, I can find no support for your contention that the sexually related activities in which you engaged with a female employee in your division were mutually consensual or that the sexual advances you made were considered other than unwanted and offensive. I believe sufficient evidence exists to support the contention that your actions violated District policy as outlined in the investigative report and the letter sent to you dated January 14, 2002." Robinson requested an administrative hearing to challenge his dismissal. The evidence was not clear as to how long Robinson was unemployed after being dismissed. At the time of the final hearing, he was employed by the Florida Department of Transportation making approximately $21,100 a year. Pertinent SJRWMD Policies SJRWMD Policy 82-01 states in pertinent part: SCOPE AND PURPOSE The St. Johns River Water Management District will not tolerate sexually offensive or sexually inappropriate behavior (referred to collectively as sexually inappropriate behavior) or sexual harassment of any nature from either District employees (co-workers, supervisors, or directors), Governing Board members, or other individuals not employed by the District but who interact with the District. This policy explains what constitutes sexually inappropriate behavior and sexual harassment, provides reporting procedures, and outlines the responsibilities of staff and supervisors. STATEMENT OF POLICY The District is committed to providing a work environment free of sexually inappropriate behavior and sexual harassment. The District strongly opposes sexually inappropriate behavior and sexual harassment in any form. Sexual harassment also violates Title VII of The Civil Rights Act of 1964, as well as state and local law. DEFINITIONS Sexually inappropriate behavior Sexually inappropriate behavior is conduct or communication of a sexual nature unrelated to the District's normal business operations and purpose. Additionally, sexually inappropriate behavior includes acts of aggression based on gender even if not sexual in nature. Sexually inappropriate behavior is unwelcome or offensive. Examples of sexually inappropriate behavior include: Sexual advances, flirtations, or propositions; Demands or requests for sexual relations or interaction; Verbal abuse, teasing, or joking of a sexual nature; Comments about an individuals sexual interests or sexual activities; Displays of sexually suggestive objects, pictures, posters, or reading materials; Leering, whistling, or gestures of a sexual nature; Physical contact such as pinching, grabbing, patting, rubbing, or brushing unnecessarily against another persons body; Physical aggression, intimidation, hostility, or threats, even if not sexual in nature or content, made because an individual is male or female; or Sexual acts or sexual assault. Sexual harassment is sexually inappropriate behavior that managers or supervisors know of but fail to act to prohibit or prevent as required by this policy. Sexually inappropriate behavior rises to the level of sexual harassment when An individual is forced to submit to sexually inappropriate behavior as an express or implied term or condition of employment; An individuals acceptance or rejection of sexually inappropriate behavior is used as a basis for an employment decision affecting the individual; or The sexually inappropriate behavior interferes unreasonably with an individuals work performance or creates an intimidating, hostile, or offensive work environment. REPORTING SEXUALLY INAPPROPRIATE BEHAVIOR AND SEXUAL HARASSMENT When an employee is a victim of, witness of, or receives information regarding sexually inappropriate behavior or sexual harassment, the employee (victim, witness, or recipient of information) must report the incident to his/her supervisor, the Human Relations Consultant, the Director of the Office of Human Resources (HR Director), or the Human Resources Manager (HR Manager). In the event the supervisor is the harasser or displays sexually inappropriate behavior, an employee must report the incident to the Human Relations Consultant, the HR Director or the HR Manager. SUPERVISORS ROLE IN ENFORCING THIS POLICY Supervisors shall work to create a workplace free of sexually inappropriate behavior or sexual harassment. Supervisors shall notify the Human Relations Consultant, the HR Director or the HR Manager upon observing or otherwise receiving notification of suspected incidents of sexually inappropriate behavior or sexual harassment, regardless of whether the offender is a non-employed person, another employee, or a District supervisor or director. The supervisor shall notify the Human Relations Consultant or the Office of Human Resources without delay. The Human Relations Consultant shall conduct an appropriate investigation and advise supervisors of any necessary action. Supervisors shall not discuss any information, reports, or investigations of sexually inappropriate behavior or sexual harassment except as necessary to report the matter to the Human Relations Consultant, the HR Director or the HR Manager and to participate in any investigation or remedial action as directed by the Human Relations Consultant. INVESTIGATING AND RESPONDING TO COMPLAINTS The District shall take appropriate remedial action, based upon the facts, including investigating all reports of sexually inappropriate behavior or sexual harassment. For the protection of each employee, the investigation will be handled as discreetly as possible. Employees shall discuss the incident only with persons involved in the investigation process in order to maintain confidentiality and to protect each individual from false rumors. Reports of sexually inappropriate behavior or sexual harassment will be investigated by considering all facts and circumstances. Discipline may include corrective and preventive measures, up to and including termination (see Policy #80- 10 Disciplinary Action). The District reserves the right not to investigate anonymous claims or complaints in the interest of protecting the rights of all employees and reducing the likelihood of false rumors or accusations. Documents created as a result of a report of sexually inappropriate behavior or sexual harassment are subject to public records disclosure in limited circumstances, as provided in Chapter 119, Florida Statutes. The documents will be stored in a secure location and will be available only upon requests that comply with the Public Records Act. Certain statutory exemptions may prevent disclosure. Employees shall contact the Office of General Counsel prior to disclosure. The District's goal is to comply with applicable federal and state law relating to his policy; any provisions of this policy that conflict with federal or state law shall not apply. EMPLOYEE AWARENESS TRAINING All District employees are required to attend a comprehensive training session about sexually inappropriate behavior and sexual harassment. SJRWMD Policy 80-10 states in pertinent part: Purpose The purpose of this policy is to establish standards of conduct and to provide a mechanism for taking appropriate, timely and consistent corrective action when violations of policy, procedure or law occur. This chapter shall apply to all employees of the St. Johns River Water Management District. General All employees of the St. Johns River Water Management District are expected to familiarize themselves with this policy and to perform assigned duties safely and efficiently, displaying an awareness of our responsibilities as employees of a public agency. Circumstances surrounding alleged violations shall be thoroughly investigated by the supervisor or other assigned District official, in consultation with Human Resources, before a disciplinary action is taken against an employee. The Office of Human Resources shall consult with the Office of General Counsel on all proposed disciplinary actions. Disciplinary action, when necessary, shall be given in a constructive manner in an effort to prevent a reoccurrence of the circumstances which resulted in the need for disciplinary action. This policy suggests a range of disciplinary actions for various infractions. However, there is no requirement that the District adhere to the guidelines of any progression of disciplinary action should the severity of the infraction or other circumstances warrant a more or less severe action. Violations shall be considered cumulative, that is, when considering the appropriate level of disciplinary action for an infraction, all previous disciplinary actions, whether for the same or a different violation, shall be considered. Senior management employees, student employees, OPS employees, temporary employees and employees who have not completed six continuous months satisfactory service wit the District during the current period of employment may be dismissed at any time, with or without cause, and without the necessity of a pre- determination conference. Any such dismissal shall be taken by the Executive Director, Assistant Executive Director or acting Executive Director under the same terms as in paragraph II.H. * * * Disciplinary Actions The following disciplinary actions may be taken by the District against an employee for violating District policy. Oral reprimand Written reprimand Suspension Dismissal Oral reprimand 1. An oral reprimand is the least severe form of disciplinary action and consists of a discussion of the infraction between the supervisor and the employee with documentation of the disciplinary action, on the District's reprimand form, being placed in the employee's personnel file. The documentation of the oral reprimand shall include the date of the reprimand, the policy violated and a statement that further violations may result in more severe disciplinary action, up to and including dismissal. Written reprimand 1. A written reprimand shall consist of a narrative, prepared on the District's reprimand form, detailing the specific violation, the circumstances of the violation, including dates, and a statement that further violations may result in more severe disciplinary action, up to and including dismissal. Suspensions and dismissals * * * 6. If the decision following the pre- determination conference is to proceed with a suspension or dismissal, the District shall issue a letter of final agency action within 5 working days of the conference. Such letter shall state the final action, the effective date, and shall inform the employee of any right to request an administrative hearing pursuant to chapter 120, Florida Statutes, including the requirement that such request must be in writing and submitted by mail or hand delivery and received by the District Clerk within twenty-one (21) days of notification. * * * Conduct Standards A. The following actions and activities are examples of misconduct for which District employees shall be subject to disciplinary action. The list is not inclusive and the District is not precluded from taking disciplinary action for the other conduct by employees which demonstrates a disregard for the interests of the District or violates the public trust. Conduct Unbecoming a District Employee- -Any action or conduct by an employee which impedes the District's efforts, brings discredit on the District, impairs the operation or efficiency of the District or any employee, impairs the employee's ability to perform his/her job, or results in the reluctance or refusal of other agencies to work with that employee or the District. Abuse of Position--The use of an employee's position, authority or employment with the District for personal gain or influence or to avoid the consequences of unlawful acts. * * * Falsification of Records--The failure to provide truthful information for a record or report, either oral or written, regarding the performance of work duties, attendance, injury, illness, benefits, job qualifications or other work related matters. Lying or Failure to Provide Truthful Information or Requested Information or Failure to Cooperate During an Internal Investigation--Oral or written statements that are deliberately inaccurate, incorrect or misleading but which do not constitute falsification of records. This includes lying or failure to cooperate during an internal investigation. * * * Sexually Offensive or Inappropriate Behavior and Sexual Harassment--An employee may not engage in sexually offensive or inappropriate behavior which is conduct or communication of a sexual nature unrelated to the District's normal business operations and purpose. Sexually inappropriate behavior is unwelcome or offensive. Additionally, sexually inappropriate behavior includes act of aggression based on gender, even if not sexual in nature. Such behavior includes, but is not limited to, sexual advances, flirtations or propositions; demands or requests for sexual relations or interaction; verbal abuse, teasing, or joking of a sexual nature; comments about an individuals sexual interests or activities; displays of sexually suggestive objects, pictures, posters or reading materials; leering, whistling or gestures of a sexual nature; physical contact such as pinching, grabbing, patting, rubbing or brushing unnecessarily against another person's body; physical aggression, intimidation, hostility or threats, even if not sexual in nature or content, made because an individual is male or female; or sexual acts or sexual assault. Sexually offensive or inappropriate behavior may constitute sexual harassment when: (1) An individual is forced to submit to sexually offensive behavior as an express or implied condition of employment; (2) An individual's acceptance or rejection of sexually offensive behavior is used as a basis for an employment decision affecting the individual; or (3) The sexually inappropriate behavior unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment. Conviction of a Misdemeanor or Felony- -The conviction for or pleading nolo contendre or no contest to a misdemeanor or felony which impairs the employee's effectiveness in the performance of assigned duties. * * * Guidelines for Disciplinary Action A. Although the intent of the District that these guidelines be used when determining the appropriate level of discipline for a specific offense, the taking of more or less severe action than would be indicated by these guidelines is within the discretion of the Executive Director, Assistant Executive Director, or acting Executive Director should the circumstances surrounding the specific infraction warrant such action. In determining the appropriate disciplinary action for an infraction, the District shall consider the specific infraction, the consequences of the infraction, the circumstances surrounding the infraction, previous disciplinary actions the employee has received for related and unrelated violations, the time between the violations, and the overall work record of the employee. OFFENSE 1st Violation 2nd Violation 3rd Violation 1. Conduct Unbecoming Written reprimand to dismissal Suspension to dismissal Dismissal 2. Abuse of Position Written reprimand to dismissal Suspension to dismissal Dismissal * * * * * * * * * * * * 10. Falsification of Records Written reprimand to dismissal Suspension to dismissal Dismissal 11. Lying; Failure to Provide Truthful Information; Failing to Cooperate with Investigation Written reprimand to suspension Suspension to dismissal Dismissal * * * * * * * * * * * * 24. Sexually Offensive or Inappropriate Behavior; Sexual Harassment Written reprimand to dismissal Suspension to dismissal Dismissal 25. Conviction of First Degree Misdemeanor Or Felony Written reprimand to dismissal Suspension to dismissal Dismissal Conflicts in Testimony As indicated, Winkleman initially complained about work conditions, not unwelcome sexual advances. When she complained about sexual advances, she initially said everything occurred in September 2001. When confronted with Robinson's statement of what occurred, Winkleman admitted something happened during the September 2000 trip but denied remembering much about what happened. On March 5, 2002, Winkleman revised all five of her statements. In part, she explained that when she made her first statement on December 28, 2001, she "wanted to say as little as possible, but later realized that it would be best for me to just say it all." But the addition to her statement on January 22, 2002, continued to maintain that she could not remember whether she and Robinson had intercourse in San Diego in September 2000. It does not appear that Winkleman "said it all" until after Robinson was already dismissed from his employment. In "saying it all," Winkleman said she actually remembered the details all along and had lied to the investigators when she said she did not remember. Wehle did not know about these lies when he made his decision to dismiss Robinson. When Winkleman finally "said it all," Winkleman's story differed in several respects from the one Robinson told from the beginning. San Diego 2000 Winkleman agreed that she went to San Diego early in September 2000 to visit a relative, returned her personal rental car on Wednesday (when Robinson was scheduled to arrive in San Diego), took the rental car company's shuttle bus to the airport, and surprised Robinson by meeting him when his plane arrived. They took a hotel shuttle bus to the Bahia Resort, where they had rooms reserved and where the Hydron conference was scheduled. She said they checked in and went to their separate rooms, agreeing to meet later to walk to the beach. Robinson said they arrived at the hotel before check- in time, checked their bags in the lobby, changed into bathing suits, and walked to the beach. She said they lay on the beach on towels four to six feet apart; he said the towels were 5-6 inches apart. They talked for several hours about work and eventually personal topics, including their respective marital difficulties. Robinson said they went in the water, swam, and played around splashing each other; she said they did not go swimming or splash around. Robinson said the bathing suit Winkleman was wearing at the beach revealed a belly-button ring. He denied being able to see a tattoo on her lower abdomen at the time, as it was covered by her bathing suit. She testified that the bathing suit she was wearing was small enough to reveal the tattoo. Robinson said that after the time spent at the beach, they returned to the lobby, got their bags, and checked in to their rooms; according to her, they went directly back to their rooms, having already checked-in. It was agreed that they met for dinner that night and after dinner returned to their separate rooms for the night. The next day (Thursday) they attended the Hydron conference. That evening, HYDSYS (the company that developed, sells, and services Hydron) hosted a dinner party for conference participants. On that much, they agreed. But in other important respects, Winkleman's ultimate version of events that evening differed starkly from Robinson's. Winkleman said the group had dinner at the restaurant at the Bahia Resort. She said she had several beers but that Robinson drank significantly more. She said he walked her back to her room at around 9 or 10 p.m. and asked if she wanted to watch television for a while. She said she agreed. She said after sitting on separate beds in her room for a few minutes, he told her he was attracted to her and wanted to have sex with her. She said he then stood up and approached her and tried to hug her. She said she got up and told him, "no," that she did not want that to happen, that they were both married, and that they worked together. She said he began to give excuses, such as: nobody has to know; he would still respect her in the morning; it would be just sex, nothing more; and she did not have to worry about getting pregnant since he had had a vasectomy. She said he proceeded to try to kiss her and began pulling at her shirt and pants. She said she pushed him away and retreated to the bathroom and that he left the room while she was in the bathroom. Winkleman testified that she was shocked and upset by the incident, that she had thought he was a decent guy and had looked up to him prior to the trip, that she did not find him attractive, and that she was not interested in him in any physical or sexual way. She said she talked to him only as necessary at the conference on Friday, chalked his behavior the night before up to drunkenness, ignored it, and never brought it up again. She testified that nothing else happened between them during the trip. Robinson testified that the HYDSYS dinner on Thursday evening actually took place at a Mexican restaurant in the gaslight section of the city. He said they both drank several beers with dinner. He said that, after returning from dinner, he and Winkleman walked together along the shoreline of the bay and entered a cabana to sit down. While characterizing it as "geeky," he said he prefaced his next move by saying essentially that he understood the ramifications of SJRWMD's policies on sexual behavior and wanted to make sure she understood that he would stop if she gave any indication that she was offended by anything he did. After that, he said they "French-kissed" in the cabana. (SJRWMD attempted to impeach Robinson with deposition testimony that Winkleman "participated" in the kissing, but the prior testimony is not inconsistent, and Robinson explained that he considered these to be two ways of saying the same thing.) According to Robinson, she then said, "not here, let's go back to my room." Winkleman specifically denied the entire cabana scene, going so far as to deny that there were any cabanas at the Bahia Resort. SJRWMD attempted to impeach Robinson with testimony of one of SJRWMD's investigators that someone at the Bahia Resort told her in response to telephone inquiry that there were no cabanas at the Resort. When Robinson was able to produce an Internet web page dated June 12, 2002, indicating that cabana rentals are available, SJRWMD attempted to impeach Robinson with his concession that they did not pay the cabana rental fee mentioned on the web page. Robinson's logical response was that the cabanas did not charge rent at night. Indeed, the web page indicated that hours of operation ended at 5 p.m. on Thursdays in September. Robinson testified that, once back in Winkleman's room that evening, he turned on the television, lay down with her on her bed, and began flirtatious actions like brushing her hair with his fingers and saying her eyes were pretty. Eventually, they cooperated in removing her shirt and bra, he removed his shirt, and he fondled her breasts. When he started to remove her pants, she stopped him, saying "not tonight." He stopped at that point but continued to lay with her in the bed. At some point, he suggested they remove their outer pants and sleep in their underpants to be more comfortable, and they spent the night sleeping together in her bed in that state of undress. When the alarm they had set went off, he returned to his room to get ready for the conference, and they met at the conference. Robinson testified that things between them at the conference the next day (Friday) were "normal, but they weren't quite normal." After the meetings, they joined a group of conference attendees for a waterfront cruise in the bay aboard the paddleboat, "Bahia Belle." After the cruise, they declined to join a group of conference attendees having dinner at the Bahia Café and instead had a drink and appetizers at the Resort's Tangiers Bar. (Robinson was able to produce a Tangiers Bar receipt to corroborate that part of his story.) Later, some conference attendees joined them at the bar for a rollicking sing-along led at the bar piano by HYDSYS principal and former traveling musician, Peter Heweston. Everyone had several drinks, but neither he nor Winkleman got drunk. At 11 p.m. or midnight, they returned to Winkleman's room because she had to telephone her husband about picking her up at the airport in Jacksonville the next day. Sitting on one bed, Robinson overheard Winkleman on the other bed. Her conversation became heated when her husband refused to pick her up at the airport. After she hung up the phone, Robinson moved over to her bed, and they began to flirt again. He said he asked to see her tattoo. He said she proceeded to take off her pants and underpants to show him the tattoo. Robinson attempted to bolster his testimony about the tattoo by describing it as a "small, little Mr. Toad- looking frog face." Apparently in response to her testimony that the tattoo was a frog, perhaps it was not just a frog face, he stated that the frog depiction he saw was cartoon- like and that, if it had a body, the head was out-of- proportion to the body. She did not dispute his description, but SJRWMD has taken the position that he actually saw the tattoo when they were on the beach the first day. SJRWMD also attacked Robinson's credibility by questioning how he knew to ask to see the tattoo if he was unable to see the tattoo the previous day at the beach and did not know about it at that point. But Robinson testified at one point that Winkleman mentioned a tattoo at the beach on Wednesday afternoon but that he did not know specifically what or where it was at the time. SJRWMD pointed out the clear inconsistency between this testimony and other testimony about conversation Robinson had with Winkleman while flirting on the bed on the second evening (Thursday night) when she told him about a pierced tongue, and he said, "I bet you have a tattoo, too." Even if his memory of his inability to see the tattoo at the beach the previous day or the details and timing of his conversations with Winkleman about the tattoo were incorrect, the errors, while significant, still would have been relatively minor compared with Winkleman's telling SJRWMD investigators repeatedly that she could not remember whether she and Robinson had intercourse in San Diego in 2000. Robinson testified that, after showing him the tattoo, Winkleman lay back invitingly on the bed, and he took off his pants, lay over on her, and attempted intercourse. However, he said he was unable to get aroused and was unable to succeed in having intercourse. He said he rolled over and said "damn, or something like that"; she "let out a--kind of a giggle or something"; she then got up and went into the bathroom; he moved to the other bed; she came out of the bathroom and climbed into bed with him; and they slept together with no pants on until the alarm went off the next morning. Both agreed that they sat next to each other on the flight back to Florida on Saturday, as planned; Winkleman made no attempt to change the pre-assigned seats. Winkleman never reported the incident, as required by Section IV of SJRWMD Policy 82-01 if it violated the policy. She said she thought it would be better not to report the incident. Between San Diego Trips Winkleman maintained that she was uncomfortable with Robinson and tried to avoid him as much as possible at first upon their return from San Diego in September 2000. She said she tried to talk to him only as necessary and only about work. Robinson denied detecting any such change in his work and personal relationship with Winkleman after the San Diego trip in September 2000; and none of the several fellow employees who testified noticed any change. According to Robinson, he and Winkleman enjoyed an excellent and close work and personal relationship between the two trips. Robinson testified that they frequently spent break time together at work and ate lunch together. There were tables outside the building where they worked which were used by them for breaks and lunch. Sometimes they went to a local restaurant for lunch. Robinson testified that, shortly after returning from San Diego in September 2000, they took a work break together and, after again making a "geeky" statement about not wanting to offend her or make her uncomfortable, he brought up what had happened between them in San Diego. He said Winkleman laughed at the suggestion that he was making her uncomfortable and participated fully in the discussion. Essentially, they discussed whether that kind of relationship could continue in Palatka. Robinson said similar conversations were repeated several (5-6) times over the course of the next year, 4-5 of these away from work, and 2-3 of those at the Kay Larkin Airport. Robinson said he always prefaced these conversations with the "geeky" statement, and she always assured him by words or laughing that she was not offended. Robinson said they never reached a definite, final answer to the question; her response was neither positive nor negative but more in the middle, like "I don't know, maybe." Robinson testified that, in their many personal conversations that year, they often discussed their respective marital difficulties. (Winkleman and her husband were separated from approximately October 2000 through September 2001; and Robinson separated from his wife for a period of time during the course of the year.) Robinson also testified that Winkleman often discussed financial problems during the course of the year. Once Winkleman complained to Robinson that a credit card company was telling her she owed several thousand dollars on an account she never opened. Robinson also recalled a time when Winkleman came to his office crying because her bank was going to close her account if she did not pay at least $50. Robinson loaned her the money. Another time, Robinson listened when Winkleman came into his office crying because her husband had backed out of signing a dissolution of marriage agreement. Another time, when Winkleman needed new tires but did not have enough money Robinson loaned her $30. When Winkleman complained to Robinson that she had no money to celebrate her birthday, Robinson bought her a bottle of Crown Royal, which he knew was her favorite whiskey, and gave her $50 as a birthday present. To keep everyone at work from knowing, Robinson arranged for Winkleman to leave her car door open so he could put the presents in her car in the work parking lot. At Christmas, Robinson gave Winkleman a polar fleece jacket, which Winkleman had said she needed. Winkleman thanked him for the gift, saying "you shouldn't have since I didn't get you anything." Later, she told him she enjoyed wearing it while horseback riding in cold weather. Robinson also helped Winkleman in other ways during the course of the year at her request. Once he went to her house to fix an electric fence. Another time he installed a television antenna for her. No sexual encounter occurred either time; on one of those occasions, Winkleman's husband was on the premises. Once when Winkleman was having to rent out a room of her house after her husband moved out to help make ends meet, and Robinson was considering moving out of his marital home, he suggested they talk about the possibility of his moving in with her. They agreed to meet after work at the Kay Larkin Airport, where they talked for 30-60 minutes while sitting in the car in the parking lot. During one lengthy conversation at the airport, Robinson remembered touching Winkleman on the leg and arm, but there was no kissing or other sexual contact. Robinson testified that they also talked on the telephone once or twice during the spring of 2001 about the possibility of getting together again as they did in San Diego in September 2000. At some point during the year, they exchanged personal cell phone numbers. Winkleman denied the extent of the personal relationship between her and Robinson during the year between the two San Diego trips. She denied any conversations about a sexual encounter in San Diego in 2000 or any discussion about a resumption of that kind of relationship. She admitted to discussing their respective marital difficulties but said hers at least were not secret. She admitted to meeting Robinson at Kay Larkin Airport on one occasion but said they met there so that McDermott would not hear them discuss the prospect of Robinson becoming Winkleman's supervisor. (Robinson readily admitted to discussing with Winkleman the prospect of Robinson becoming her supervisor but said that was not the purpose of any of the meetings at the Kay Larkin Airport. He pointed out that they could have had the discussion almost anywhere and been out of McDermott's hearing.) She denied taking frequent work breaks or frequently having lunch with him, saying it happened only a couple of times. She denied any conversation about Robinson possibly moving in with her, saying only that he would pay more than she was charging her new roommate, implying only that she was not charging enough. She implied that Robinson foisted the Christmas present on her, saying she tried to return it and only took it when he insisted. She also downplayed the financial assistance given by Robinson during the year, saying she quickly repaid the loans, but admitted to coming into his office crying and relating personal problems to him. She admitted to exchanging personal cell phone numbers but said it was only to get directions to a training site from him. Notwithstanding her denials, Winkleman conceded that she was happy with her job and conditions of her employment prior to September 2001, including the year after the September 2000 San Diego trip. According to Winkleman herself, Robinson did nothing to hamper or impair her ability to work or to affect her job other than in a positive way after the September 2000 trip and leading up to September 2001. Indeed, her only job complaint prior to the 2001 trip concerned Glenda McDermott, her data management supervisor at that time, not Robinson. As mentioned, Winkleman and Robinson discussed the prospect of Robinson becoming Winkleman's supervisor. Such a discussion would have taken place during the summer of 2001, prior to the San Diego trip in September. Larry Fayard, the Division Director of SJRWMD's Division of Hydrologic Services, first broached the subject to Robinson in approximately June 2001. By sometime in August 2001, Fayard advised Robinson that the change was going to take place. Although Robinson maintained that the change still was not certain, it did appear at that time that he officially would become Winkleman's supervisor starting October 1, 2001. The change in supervision was thought to be logical in light of the increased percentage of Hydron work being done by Winkleman at the time (75-80%, up from 50-60% Hydron work) and McDermott's lack of knowledge about Hydron. It also was agreed by all concerned, including Winkleman, that the change would benefit Winkleman by putting Robinson in a better position to give her proper credit for the quality of her Hydron work; all concerned thought Winkleman would have a better chance for advancement once Robinson became her supervisor. SJRWMD attempted to impeach Robinson's testimony on events between the two San Diego trips through use of allegations in his Petition that he and Winkleman were "romantically involved" between the trips and that they engaged in a mutually consensual physical relationship on and off for approximately a year. Robinson explained that he was surprised when confronted with those allegations during his deposition; during the deposition he explained that they were written by his attorney and, as indicated by the previous findings, were in error and a mischaracterization of his actual personal relationship with Winkleman. Robinson testified that, as the time for the September 2001 San Diego trip approached, he again wanted to know if Winkleman shared his interest in using the trip as an opportunity to resume the kind of relationship they had during the 2000 trip--i.e., an intimate, physical relationship. He testified that, as before, he prefaced his suggestion by telling her that, if it offended or made her feel uncomfortable, to just tell him, and he would drop the subject. He testified that she neither asked him to drop it nor enthusiastically embraced his suggestion. According to him, she again answered something like, "I don't know, maybe." Contrary to the possible implications of Wehle's letters, SJRWMD's travel office knew of and approved the suite arrangement for the trip to San Diego in 2001. The purpose of the suite was to serve as a location for a training session for Robinson and Winkleman to be conducted by Heweston the week after the Hydron conference. Winkleman also confirmed that she, too, was aware of the suite arrangement prior to the 2001 trip and that it was fine with her. San Diego 2001 As was clear from the evidence, no one was aware that one bedroom in the suite was a loft until Winkleman and Robinson checked in. At that point, there was some discussion about who would take the loft, and it was decided that Winkleman would. The loft set-up was not a factor since Robinson never entered the loft during the entire 2001 trip; once or twice later in the trip, he came to the top of the stairway entrance to her loft area to tell her he was going out. Winkleman's testimony as to what occurred on the first night of the 2001 San Diego trip was fairly consistent with her initial statement. See Finding 3, supra. She added that Robinson also tried to kiss her. Robinson, on the other hand, always has maintained a much different and more detailed version of what happened during the 2001 trip. According to Robinson, after checking into the hotel, they went to check out the beach, which was unseasonably cool, and then went to get some groceries, pooling their money. Returning to their suite, they turned on the television and talked. At one point, he gave her a playful piggy-back ride and dumped her on his bed. He joined her laying on the bed, and they continued talking and laughing together. He testified to playing with her belly ring for quite some time while they were on the bed. At some point while they were on the bed, Robinson moved his hand up towards Winkleman's breast (outside of her shirt), at which time Winkleman blocked the progression of his hand. Robinson immediately stopped and took that as a signal that Winkleman was not interested in him playing with her breast, as had taken place consensually during the September 2000 trip. Robinson testified that he thought to himself, "maybe it wasn't the right night." He indicated that after this, they continued to talk and have a good time, and the mood did not change. In fact, he testified that he continued talking and playing with her belly-button ring from time to time for another half hour and went to sleep at approximately 2 a.m., he in the bedroom and she in the loft room. SJRWMD attacked the credibility of Robinson's testimony concerning the first evening in San Diego in 2001 on three grounds. First, SJRWMD pointed to Winkleman's testimony that she did not have a belly ring on the second San Diego trip, only the first one. Second, SJRWMD argued that Robinson was inconsistent as to the length of time he played with Winkleman's belly-button ring, first saying half an hour, and later saying an hour to an hour and a half. But it appears that his first time estimate related to the time after he attempted to move his hand to her breasts while the second estimate was not so limited. Third, SJRWMD argued that Robinson's testimony was inconsistent with the position that his relationship with Winkleman ended at that time. But he later explained that he chose not to pursue the relationship and was happy in retrospect that nothing else happened on the first night. Finally, SJRWMD questioned Robinson's time estimate that they stayed up until 2 a.m. (5 a.m. Eastern Standard Time) the first night, saying they would have been too tired. But the testimony was not clear whether Robinson meant local time or Eastern Standard Time. Robinson never again suggested or attempted sexual or intimate contact with Winkleman after the first night of the 2001 San Diego trip. Winkleman's only complaint about Robinson's conduct during the rest of the trip was that he was "rude" and "smart-alecky" and took credit for her work during the training session after the conference. Notwithstanding her initial interview statement that she "went up to my room and stayed there for the rest of the week," Winkleman admitted upon further questioning to traveling to Tijuana, Mexico, for sightseeing with Robinson on the Saturday and going to see a movie with Robinson on the Sunday of the weekend between the conference and the training session with Heweston. Robinson, on the other hand, described the rest of the trip in detail. He said they attended the first day of the conference the next day (Thursday), and everything seemed normal to him. That evening, HYDSYS hosted a dinner for conference attendees at an Italian restaurant. Robinson said they drove together and sat almost directly across from each other at a large table of conference attendees. After dinner, they drove together to a microbrewery, where each drank 5-6 beers along with other conference attendees, and a good time was had by all. They drove back to the hotel together, and went to sleep in their separate rooms. The next day (Friday) they attended the second day of the conference. Robinson was somewhat stressed because he was scheduled to make a presentation Winkleman had helped him with. As the conference was drawing to a close, HYDSYS almost forgot about Robinson's presentation. When he was recognized, he delivered the presentation, acknowledging Winkleman. It seemed to Robinson that the presentation was well-received. Winkleman never expressed any displeasure for his not giving her credit for the reason that he did name her and give her credit. That night, they ate in; Robinson had pizza, and Winkleman cooked something they had bought at the grocery store. After eating, Robinson felt sick and went to bed early. Although they had talked about either going deep-sea fishing or going to Tijuana on Saturday, Robinson still was not feeling well the next morning and was not inclined to do either. Later in the morning, Winkleman asked him if he wanted to go to Tijuana with her; he was feeling better and agreed to go. Everything seemed normal to Robinson, and he enjoyed the day. That evening, they either ate in again or went to a deli to eat. On Sunday, Winkleman felt sick, and she stayed in her room most of the day. Robinson thought about going deep-sea fishing himself but decided not to. Sunday evening, Robinson climbed the ladder to the loft to tell Winkleman he was going out and asked if she wanted him to get anything for her. She asked for Popsicles and chicken soup, which he got for her. Training with Heweston started the next day, Monday. Winkleman said she was feeling better but not completely well. Training went fine, as far as Robinson was concerned. He does not think he embarrassed her or treated her rudely in any way. (There was no evidence as to whether Heweston perceived any such behavior.) Training was disrupted by 9/11 on Tuesday, which put a damper on the rest of the week. The only light- hearted time spent the rest of the trip was when they decided to go to a movie either Wednesday or Thursday night. Robinson testified that they walked together to the movie theater, and Winkleman chose "American Pie II." He said they went into the theater, sat together, laughed out loud, and enjoyed it thoroughly. Except for the shadow cast by 9/11, the rest of training week went well, as far as Robinson could tell. After considering driving the rental car home due to 9/11 concerns and delays, they ultimately decided to fly. Training Friday lasted only half a day. Friday afternoon, they went to a bookstore to get reading material because they had heard there would be long flight delays and layovers. They walked to the mall bookstore together and shopped their separate interests once inside. There was indeed a long (4-hour) layover in Atlanta on Saturday. Otherwise, the flight was normal. Robinson does not think he was "rude" or "smart-alecky." To the contrary, he remembered carrying Winkleman's bags for her and buying her refreshments at the Atlanta Airport. When confronted with the Tijuana trip, Winkleman admitted to it but said she chose to go with him to a public place as an alternative to having to be alone with him in the suite. She also denied sitting next to him on the tram, implying that they went their separate ways in Tijuana. He said that they did sit together whenever seats were available. In an attempt to corroborate his version of the Tijuana excursion, he produced two photographs she took of him. She responded that she was not enjoying herself, that he was acting "rude" and being "smart-alecky," and that she refused to have her picture taken with him. As to the movie outing, Winkleman denied that they went to the movie together, insisting that they coincidentally saw each other in line at the same movie without any prior arrangement and coincidentally were going to see the same movie. She also testified that they did not sit together. The testimony of Danita Humbert supported Robinson's version. According to Humbert, Winkleman told her that Winkleman and Robinson had gone to a movie "together" in California during the September 2001 trip. Winkleman testified that the bookstore trip occurred on the first day of the 2001 trip. In an attempt to buttress his version of the bookstore trip, Robinson suggested that there was no reason to visit a bookstore on the first day. SJRWMD ridiculed the suggestion, pointing out that it was just as logical to go to a bookstore on the first day as on the last day. On this point, SJRWMD is correct; the question turns exclusively on the relative credibility of Winkleman and Robinson. Robinson agreed with Winkleman's testimony that no other flirtatious activity occurred during the trip after the first night. As the trip progressed, it seemed Robinson lost interest in having another affair with Winkleman and went back to life without it. As it happened, Robinson was thankful that nothing else happened during the trip. In retrospect, and in light of his reconciliation with his wife after his return from San Diego, he was especially thankful. After San Diego 2001 There also is serious conflict in the evidence as to what transpired after Robinson and Winkleman returned from San Diego in 2001. However, as to those facts, more evidence is available to aid in resolution of the conflicts. Winkleman testified that after their return to Palatka, Robinson continued to act "rude" and "nasty" towards her and began to take action against her best interests-- specifically, by not giving her credit for Hydron work she did, and by taking personal credit for Hydron work, by taking the higher-level Hydron work away from her. She testified essentially that Robinson's actions created a stressful, hostile work environment. While SJRWMD did not directly claim quid pro quo sexual harassment, the only reason for Robinson to suddenly take actions such as those alleged after the trip to San Diego in 2001, under SJRWMD's theory of the case, would have been in retaliation for Winkleman's refusal to "perform" sexually for Robinson during the trip to San Diego in 2001. Notwithstanding Winkleman's claims, there was no objective evidence that Robinson treated her badly at work, failed to give Winkleman credit for Hydron work she did, took personal credit for Hydron work she did, or took the higher- level Hydron work away from her. To the contrary, the greater weight of the objective evidence was that Robinson continued to treat Winkleman very well, praised Winkleman for doing good work, gave her good performance evaluations, took personal credit only for work he actually did, and began the process of transferring more higher-level Hydron responsibilities to her. One actual change in the work relationship between Robinson and Winkleman after the San Diego trip occurred when Robinson officially became Winkleman's supervisor in early October 2001. The official change was supposed to have taken place on the first of the month, but some evidence suggested that the official change was not implemented until the eighth. Winkleman had a history of not accepting McDermott's supervision well and getting angry at McDermott because of it. It is possible she began to perceive rudeness or "nasty" treatment by Robinson as a result of this appropriate change in their work relationship. Instead of seeing this type of change in their work relationship as appropriate, Winkleman may have come to view it as retaliation for her spurning him in San Diego. Actually, there was not even any objective evidence that Winkleman perceived bad treatment by Robinson until well after their return from San Diego--indeed, not until approximately November 2001. It seems from the evidence that Winkleman's claims against Robinson may have been triggered when she took off from work October 20-28, 2001, during a time when Robinson was under pressure to resolve problems SJRWMD was having with the interface of Hydron with other SJRWMD computer systems. Because Winkleman was gone, Robinson had to communicate directly with Heweston and others at HYDSYS in an attempt to resolve the problems. When Winkleman returned to work, Robinson continued to deal directly with HYDSYS in an attempt to resolve the problems (almost always copying Winkleman with emails to keep her informed). Winkleman seems to have misinterpreted these events as an attempt by Robinson to demean her and remove her responsibilities as Hydron administrator. She became more and more hostile and aggressive in defending what she seemed to view as her "turf"- -although objectively it does not appear that Robinson actually was out-of-line or doing anything to undermine Winkleman. Unless explained by appropriate changes due to Robinson's new role as supervisor, or by Robinson stepping in to resolve the Hydron interface problems in Winkleman's absence and carrying his work through to completion after her return, it is not clear from the evidence why Winkleman would think Robinson was demeaning and undermining her. Winkleman applied for outdoor work at SJRWMD as an invasive plant technician on November 12, 2001. Although there was evidence that Winkleman might have liked outdoor work and had applied for outdoor work at SJRWMD in the past, it does appear that this application was motivated by dissatisfaction with Robinson. As Winkleman herself wrote in a diary she started on November 15, 2001, she also confronted Robinson on November 12, 2001, with the question "who is the Hydron administrator?" and "who is supposed to communicate with HYDSYS?" Robinson answered, "you are." Winkleman took the next two days off. She wrote in her diary that she discovered on her return that Robinson again emailed HYDSYS about a problem Winkleman thought she already had resolved. She viewed this as going behind her back and trying to make it look as though she was "not keeping up with" her work. As Winkleman also wrote in her diary, she approached Melanie Collins of SJRWMD's personnel office on November 16, 2001, "to discuss the issue of 'why haven't I been getting interviews for outdoor jobs?'" It is not clear whether she was referring only to the application she had filed four days earlier. She then wrote: Part of the problem is that I have also applied for indoor jobs even though they were higher paygrades. . . . Also, she [Collins] asked why I was so concerned about this now? Is there a problem where I am at now, etc.? I explained that there is somewhat of a problem, but I've always wanted to work outdoors. I am very interested in the position of Inv. Plant Tech. I do also have a problem where I am at. New supervisor, no job description, no performance evaluation. No increase in pay, but a lot more work. 3 Supervisor taking credit for things I've done. 4. I'm Hydron admin - but supervisor is doing HYDRON things "behind my back." I look stupid when I don’t know all the things that are going on with Hydron when I am the administrator. She said she could work on one problem or the other. I asked her to look more into the Invasive Plant Tech position. But she also let me know that if I did not get the position I was applying for - she could look into the other. It is clear from the evidence that Winkleman did not tell Collins that Robinson had made unwelcome sexual advances or that he was creating a hostile work environment in retaliation against her. Winkleman has alleged that she told the Assistant Director of the Division of Hydrologic Services, Alex Hinely, during a meeting on or about November 16, 2001, that Robinson had made unwelcome sexual advances towards her. Hinely was investigated along with Robinson and eventually was fired for not taking appropriate action in response to information allegedly imparted by Winkleman during this meeting. (Hinely did not request an administrative hearing to challenge his dismissal.) But Hinely has denied being told anything about unwelcome sexual advances at this meeting. He testified that Winkleman told him during the meeting that a mutually initiated event had occurred months earlier, but that it did not result in sexual activity. In her words, "nothing happened." She added that the event was mutual, had occurred away from SJRWMD after working hours, and that the other party was a co-worker, not a supervisor or manager. At the time, Hinely did not think she was referring to Robinson, who was her supervisor at the time; instead, he thought she might have been referring to another employee, perhaps Mike Babbitt because Hinely had observed friction between Winkleman and Babbitt. In any event, Winkleman told Hinely that no other incidents had occurred and that she simply was experiencing personal regrets that were affecting her working relationship with the other employee. Hinely reported that Winkleman seemed truthful and did not want him to report what she had told him. Hinely suggested she see Melanie Collins about it, but Winkleman refused his suggestion at the time. Winkleman testified that Hinely discouraged her from confiding with Collins, saying that Collins would not keep a confidence. This was one of SJRWMD's grounds for dismissing Hinely. There even was a suggestion that Hinely was conspiring with Robinson to keep a lid on Winkleman's allegations. More likely, Hinely was responding to Winkleman's expressed reluctance to "go public" with the incident at that time and was merely advising her that it could become public if she went to Collins about it, due to the nature of Collins' position at SJRWMD, which probably was true. The wording of Hinely's interview statement about his first meeting with Winkleman differed somewhat from his testimony at final hearing. However, the essence of his testimony was not substantially inconsistent with his interview statement. (Unlike Winkleman and others, but like Robinson, Hinely did not get an opportunity to review and revise his interview statement because he was placed on administrative leave shortly after the interview.) Hinely testified that, at his own initiative, he met with Winkleman again to ask how things were going. He said she told him that the incident had occurred months earlier, nothing had happened since, that she was getting over it, and that it was no longer affecting her work. His interview statement did not mention this meeting. Hinely testified that he then became aware of unusual tension between Winkleman and Robinson, whereas up to that point they always seemed to have an excellent rapport. At some point, Robinson copied Hinely with some tense email from Winkleman to Robinson. This probably is when Hinely suggested that Robinson "back off" Winkleman a little. SJRWMD argued that Hinely's advice to Robinson was evidence of a hostile work environment. More likely, Hinely was mindful that Robinson tended to micromanage, and Winkleman had problems with that management style under her prior supervisor, McDermott. Hinely then approached Winkleman again. In testimony, Hinely called this his third meeting with Winkleman on the subject. His interview statement called it the second meeting. Whether the second or third meeting, it apparently took place around Thanksgiving, which was on November 22, 2001. This time, Hinely asked whether the incident she had previously talked about involved Robinson. According to Hinely, Winkleman answered, "yes." Hinely said he specifically asked her if Robinson was antagonizing her or harassing her in any way, and she answered, "no." According to Winkleman's diary, she met with Robinson on November 19, 2001, to discuss the "Hydron problem" again. According to her, Robinson again denied taking credit for her work and again tried to explain that he was taking care of problems in her absence. She argued the point, mentioning an audit test she set up, repeating allegations that he took credit during the Hydron training in San Diego, and mentioning "HMD stuff (various things)." Robinson allowed that he might have omitted to copy Winkleman on a few emails and promised to try to remember in the future. Winkleman also complained about being reminded by Robinson as to what work needed to be done on a weekly basis. She asserted that she gets her work done without being reminded. Of considerable interest, Winkleman also mentioned to Robinson during their meeting on November 19, 2001, that it was not just her who had noticed the change in his behavior towards his co-workers. Winkleman ended the diary entry of November 19, 2001, by recording that Robinson said maybe she should apply for an outdoor job, such as Data Collection, since she seemed "obviously unhappy" with the position she was in. Winkleman responded that it was not the position, it was the way she was being treated. Winkleman failed to include in her diary entry for November 19, 2001, that she and Robinson discussed another major complaint she had about him. Apparently, Winkleman heard from someone in the office that Robinson was going to a conference in Australia the following year. She mistakenly assumed it was a Hydron conference and thought it was more appropriate for her to attend, as Hydron administrator. She took offense to being left out and thought it was another example of Robinson demeaning and undermining her. However, when she confronted Robinson, he explained that it was not a Hydron conference. Instead, he explained, Hydron was impressed with a presentation he had made at the Hydron conference in San Diego in September and asked him to repeat the presentation at a meeting of the Australian Hydrographers Association. Winkleman testified that she was satisfied with Robinson's explanation, but it appears to have continued to poison Winkleman's perception of Robinson. According to her testimony, she believed she was instrumental in preparing Robinson's presentation for the Hydron conference in San Diego in September. In fact, while Robinson gave credit to Winkleman during his San Diego presentation for helping him prepare the presentation, he explained in testimony that Winkleman's actual contribution was limited to putting the substantive material he had prepared in a "Power Point" format, which Robinson later modified to make it less showy and more informative. Nowhere in any of Winkleman's diary entries, which continued through December 19, 2001, did she mention or even allude to sexual conduct by Robinson, whether or not unwelcome or offensive. The apparent purpose of the diary was to record both what she perceived as Robinson's slights and also her defense against any possible criticism of her work. Winkleman and SJRWMD attempted to explain the absence of allegations of sexual misconduct by saying Winkleman knew the diary entries on her SJRWMD computer were public records, and she did not want them accessible to the public. Winkleman wrote a letter to Robinson on November 27, 2001, and delivered it to him. It summarized work problems she perceived having with Robinson and for the first possible documentation of alleged improper sexual conduct on his part. In the letter, Winkleman vaguely accused Robinson of turning against her when he did not get what he wanted from her. Robinson testified that he assumed Winkleman was referring to her recent job performance and lack of cooperation with him, not her rejection of him during the trip to San Diego in 2001. Robinson attempted to address some of Winkleman's specific concerns and to reassure her that he was not trying to demean her or her work, undermine her, or make her job environment unpleasant. Robinson's response did not indicate that he understood the letter as a threat to accuse him of sexual misconduct. Winkleman and SJRWMD have suggested that Robinson, Hinely, and perhaps others conspired to seek to reclassify her position at a higher pay grade in return for her not raising any allegations about sexual harassment. But the clear evidence was that the process of reclassifying Winkleman's position was begun well before Winkleman even hinted at sexual harassment. According to Hal Wilkening, Director of SJRWMD's Department of Resource Management, Larry Fayard approached Wilkening to initiate the process in late summer--well before the September San Diego trip. It appears that the reclassification process paralleled the process of transferring Winkleman to a position under Robinson's supervision. Fayard testified that the reason for the reclassification was to improve the chances of keeping Winkleman as an employee. Winkleman did not begin to make explicit accusations of sexual misconduct against Robinson until December 2001. This occurred during a discussion with Hal Wilkening, Director of SJRWMD's Department of Resource Management, on or about December 19, 2001. Wilkening approached Winkleman at that time to discuss why she was applying for an outdoor job while her supervisors were taking action to reclassify her position to a higher pay grade. He also wanted to correct some misinformation he learned had been given to her that her application for outdoor work was derailing the position reclassification. During this conversation, he asked her if she was applying for outdoor work because she did not like her current job. At that point, she told him she liked the job fine but that she no longer wanted to work for Robinson because he had made unwelcome sexual advances against her. He required her to report this to Melanie Collins immediately. Collins made arrangements to begin interviewing Winkleman and other witnesses immediately after the Christmas holiday. Summary of Evidence and Findings To a large extent, the findings in this case depend on the credibility of Winkleman and Robinson; and it is not easy to decide whom to believe. One thing clear from the evidence is that Robinson's version of the facts has been consistent from the start even though they may not have been in his interest, did not reflect well on his character and judgment, and undoubtedly were not well-received by his wife, with whom he had begun to reconcile after the 2001 San Diego trip. In contrast, Winkleman's credibility is suspect since she clearly told SJRWMD investigators untruths and half- truths. Many other factors also are relevant to the question of whom to believe, Robinson or Winkleman. The possibility of a consensual extramarital sexual relationship clearly cannot be ruled out; during the course of this proceeding, Winkleman was required to admit having such a relationship with a man other than Robinson during the time of her separation from her husband from around Christmas of 2000 until October 2001. (Notwithstanding SJRWMD's argument, this did not necessarily prove that Winkleman was not attracted to Robinson.) In addition, Winkleman has consulted with mental health specialists, including a psychologist, because of confusion at work which she attributed to her marriage. Winkleman also admitted to suffering from stress and panic problems for which she received treatment, including Celexa and Prozac medications for anxiety and mental health conditions. Winkleman also has a history of not accepting Glenda McDermott's supervision well and of getting angry at McDermott. She admits to having a bad temper, and there was evidence that Winkleman can be vengeful when she is angry and that she can be untruthful about her acts of revenge. For these as well as other reasons, including the demeanor of the witnesses and how their testimony squared with other evidence in the case, it is found that SJRWMD did not prove Winkleman's ultimate version of the events of San Diego 2000 and 2001, and the time in between, to the extent it conflicts with Robinson's version, by a preponderance of the evidence. Finally, as found, Winkleman's possible perception of a hostile work environment and retaliation was contrary to the greater weight of the objective evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order: granting the Petition for Formal Administrative Hearing; and reinstating George Robinson with back pay, less pay earned in his employment with the Florida Department of Transportation and unemployment compensation, if any. DONE AND ENTERED this 9th day of October, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 2002. COPIES FURNISHED: Robert L. McLeod, II, Esquire McLeod & Canan, P.A. 43 Cincinnati Avenue St. Augustine, Florida 32084-3244 John W. Williams, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Kirby Green, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429
The Issue The ultimate issue for determination at formal hearing was whether the intended decision by the Palm Beach County School Board to reject all bids on the Gladeview Elementary School project, Project No. 125191702/205840, departs from the essential requirements of law.
Findings Of Fact Palm Beach County School Board (Respondent) issued a request for proposals (RFP), soliciting sealed bids for the reroofing, renovating and replacing the HVAC of Gladeview Elementary School, Project No. 125191702/205840 (Gladeview Elementary Project). The RFP and bid documents for the Gladeview Elementary Project were contained in the "Project Manual." The addendum to the RFP required all bids to be submitted by April 20, 1993 at 2:00 p.m., at which time all bids were to be publicly opened. Pertinent to the case at hand, the RFP further required a bid bond or cashier's check for not less than five percent (5 percent) of the bid and notified bidders that Respondent had the right to reject all bids and waive any informalities. Section 00100 of the "Instruction to Bidders" in the Project Manual is material to the case at hand and provides in pertinent part: BIDDING PROCEDURES: * * * Preparation and Submission of Bid Proposal Form: [P]roposals containing any conditions, omissions, unexplained erasures, alternates, items not called for or irregularities of any kind may be rejected by the Owner. . . (e) Proposal Submittal shall contain the following documents: Section 000443 - Public Entity Crimes Statement Section 00310 - Proposal Form Section 00410 - Bid Bond or otherwise acceptable Bid Guarantee (see Paragraph 3.08). Manufacturer's Letter of Intent to Warranty (See Section 7610) and will be enclosed in a sealed envelope. . . * * * 3.08 Bid Guarantee: Bids shall be accompanied by a bid guarantee of not less than five percent (5 percent) of the amount of the Base Bid, which shall be a Cashier's Check or a Bid Bond (Bid Bond, see Section 00410) made payable to the Owner. * * * 3.10 Subcontractors: At the time of the Bid Opening each Bidder submitting a Bid shall submit a written list of the major Subcontractors; namely, structural steel, membrane roofing, preformed metal roofing & siding, plumbing, HVAC, electrical and general contractor, on Form 00420 (List of Major Subcontractors). The list shall be placed in a "sealed envelope". . . Within five (5) Owner Business days after the Bid Opening, the apparent low Bidder(s) shall submit Form 00430) (List of Subcontractors), completed in full to the Owner ... Failure to submit these lists within the time period specified herein shall result in a non- responsive Bid. * * * REJECTION OF BIDS: 6.01 The Bidder acknowledges the right of the Owner to reject any or all Bids and to waive any informality or irregularity in any Bid received. In addition, the Bidder recognizes the right of the Owner to reject a Bid if the Bidder failed to furnish any required Bid security, or to submit the data required by the Bidding Documents, or if the Bid is any way incomplete or irregular; to reject the Bid of a Bidder who is not in a position to perform the Contract; and to re-advertise for other or further Bid Proposals. SUBMISSION OF POST-BID INFORMATION: * * * 7.02 The selected Bidder shall within eight (8) Owner business days after notification of Board Award submit the following: . . . 6. Photocopies of prime Contractor's certification and/or registration and either state registrations or Palm Beach County Certificate of Competency of all Subcontractors. . . * * * AWARD OF CONTRACT: The Contract, if awarded by the Owner, will be awarded to the lowest bona fide responsible Bidder; provided the Bid is reasonable and it is in the interest of the Owner to accept the Bid. The method of determining the lowest bona fide Bid from Bidders shall be the Base Bid price plus or minus Alternate Prices listed on the Bid Proposal Form which are accepted by the Owner. Alternates will be considered for acceptance by the Owner as set forth in the Alternate section of the Specifications, Division One-General Requirements, Section 01030-Alternates. The bid opening was conducted on April 20, 1993, at which time the bids were tabulated and the Bid Tabulation Form (BTF) was posted. Respondent received bids from Bonner Roofing whose base bid was $869,000, S&S Roofing, Inc. (Petitioner S&S Roofing) whose bid was $693,000, Therma Seal Roofs, Inc. (Petitioner Therma Seal) whose bid was $691,500, Titan Roofing, Inc. (Petitioner Titan Roofing) whose base bid was $689,500, and Trans Coastal Roofing, Inc. (Petitioner Trans Coastal) whose base bid was $884,248. The BTF showed that the rank of the bids, beginning with the apparent lowest bidder to the apparent highest, were (1) Petitioner Titan Roofing, (2) Petitioner Therma Seal, (3) Petitioner S&S Roofing, and (4) Petitioner Trans Coastal. The BTF showed further that Bonner Roofing failed to submit with its bid the Manufacturers Letter of Intent which was a required document. Bonner Roofing's bid was rejected. Within minutes after the bid opening, Respondent's staff discovered that Petitioner Titan Roofing had failed to list its major subcontractors on Form 00420, List of Major Subcontractors, even though it had submitted the form. Respondent's staff contacted Petitioner Titan Roofing by telephone and requested the list. Petitioner Titan Roofing's failure to submit a completed Form 00420 was inadvertent and not intentional. At the time of the bid opening, Respondent's staff had not considered Petitioner Titan Roofing's failure to submit a completed Form 00420 to be a major irregularity, but a minor one. Consequently, Respondent's staff considered the failure to be a waivable irregularity. Unable to discern if it had the original figures submitted by its major subcontractors, Petitioner Titan Roofing telephoned them to verify the figures it had. Within two hours, Petitioner Titan Roofing had faxed to Respondent's staff a completed Form 00420. Respondent's recommendation or intended action was to award the bid to Petitioner Titan Roofing as the apparent lowest bidder. Petitioner Therma Seal, the apparent second lowest bidder, filed a timely protest of Respondent's intended action. Respondent held an informal hearing on the protest, and the recommendation was to reject all bids. In prior bids, a bidder's failure to submit Form 00420 at bid opening has been considered a major irregularity by Respondent. The purpose of Form 00420 is to prevent or guard against bid shopping. Respondent's action has been to routinely reject bids with such a deficiency. Petitioner Therma Seal failed to submit with its bid the required bid bond of 5 percent of its base bid. Failure to submit a required bid bond is considered by Respondent to be a major irregularity. Furthermore, Petitioner Therma Seal was not a licensed general contractor. It listed itself as the general contractor on Form 00420. All bids failed to comply with the roofing warranties and specifications, which Respondent considers to be a major irregularity. Respondent's budget, based upon its architect's construction estimate, for the Gladeview Elementary Project was $652,130. All bids were over budget. Prior to the formal hearing, Respondent Trans Coastal notified the parties that it was not proceeding with its protest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter its final order rejecting all bids on the Gladview Elementary School project, Project No. 125191702/205840, and re-advertise. DONE AND ENTERED this 7th day of September 1993 in Tallahassee, Leon County, Florida. ERROLL H. POWELL 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 7th day of September, 1993.
The Issue The central issue in this case is whether Petitioner should be awarded Bid No. 432-730-310-W for configurations 1, 2, and 3, Service Area 1.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The ITB for Bid No. 432-730-310-W consisted of three sections: general conditions, special conditions, and technical specifications. Bidders were evaluated on their technical and non-technical responses to the ITB. Once the Department determined the bidders to be compliant with their non-technical responses, they were ranked according to the evaluation award criteria described in Appendix F of the ITB. Once ranked, the Department forwarded the bid responses to the engineering staff of the Division of Communications for a technical review. This technical review consisted of verifying a lowest compliant bidder and a competitive compliant bidder. To complete the technical review the engineering staff considered the responses submitted on the ITB forms, technical literature provided by the bidder, and technical responses submitted to supplement other information. To the extent that an ambiguity in one response was satisfactorily explained elsewhere in the bid documentation, the bidder was given the benefit of the doubt and found to be responsive to the ITB. Prior to submitting bids, all bidders were given an opportunity to raise questions regarding the ITB at a pre-bid conference conducted by the Department. Petitioner's representative attended the conference and received a copy of the specimen bid. The ITB required specific mandatory responses. Failure to include the mandatory information resulted in the disqualification of the bid. An equipment list for the baseline system was a mandatory requirement of the ITB. Identification of the manufacturer and the part number, if any, were required to be provided. Another mandatory feature required by the ITB was a "handsfree" intercom. The ITB defined this feature as follows: Handsfree answer and talk back on intercom: Enables a station user to answer an intercom call through the station instrument's internal speaker/microphone without lifting the instruments handset. (This feature shall not be controlled by the calling party instrument intercom button.) Speed-dialing was another mandatory feature of the ITB. This feature could be provided at the station (an individual telephone) or by the system. If at the station, there was no requirement that the instrument retain memory in the event of a power outage. The central memory of the system, however, had to retain its memory in the event of a power failure. The ITB prohibited a method of programming which required access to the inside of the Key Service Unit (KSU) to make switch settings or set a switch to enter and/or leave the program mode. All mandatory operational service features of the ITB were listed on page 27, Section 3.4. Optional operational service features and equipment were listed on page 34, Section 3.16.8 of the ITB. An optional operational feature listed was "Station Message Detail and Equipment." The bidding of an SMDR or an option for an SMDR was not required. No bidder was disqualified because it failed to bid an SMDR or an SMDR option. All bidders were required to submit a spare parts price list. Any bidder failing to submit the list was disqualified. Any bidder which submitted the list automatically met the requirement. The lists were not evaluated as art of the bid criteria and no bidder was disqualified based upon the content of the information supplied on the list. Configuration 1 The Department determined Petitioner to be the seventh lowest bidder for configuration 1. Lower bidders, in order of their ranking, were Henkels & McCoy, Southern Bell Advanced, St. Joe Communications, Inter-Tel, Lanier Business, and Tel-Plus Communications. Tel Plus was considered the low compliant bidder and Inter-Tel was the competitive compliant bidder. Following a complete review of the bid responses, the parties agreed that Southern Bell Advanced, St. Joe Communications, and Lanier Business were non-compliant for configuration 1. The Henkels & McCoy bid provided a "handsfree" feature as described above in paragraph 8. The Henkels & McCoy bid did not provide an SMDR or an SMDR option. The Inter-Tel bid did not provide an SMDR or an SMDR option. The Tel Plus bid included a spare parts price list. The Tel Plus bid included an equipment list for the baseline system, however, such list did not completely and accurately describe the baseline system. The discrepancies with the equipment list were fully explained elsewhere in Tel Plus' bid response. Configuration 2 The Department determined Petitioner to be the fourth lowest bidder for configuration 2. Lower bidders, in order of their ranking, were Inter-Tel, Tel Plus Communications, and St. Joe Communications. St. Joe was determined to be non-compliant, leaving Tel Plus as the low compliant bidder and Inter-Tel as the competitive compliant bidder. The Inter-Tel bid provided a statement indicating the equipment bid would be modified to relocate a "DIP" switch to the outside of the KSU. This modification was necessary to comply with the requirement described in paragraph This modification is a minor, simple procedure done by many technicians. No documentation was provided as to how Inter-Tel intended to make the modification. The parties agreed, however, that the modification could be done. The Inter-Tel bid provided the speed-dialing feature described in paragraph 9 at the station. The findings of fact relating to configuration 1 and the Tel Plus bid are applicable to configuration 2. Configuration 3 The Department determined Petitioner to be the seventh lowest bidder for configuration 3. Lower bidders, in order of their ranking, were Business Telephone Systems, Henkels & McCoy, Marcom Telecommunications, Lanier Business, Tel Plus Communications, and Inter-Tel. Inter-Tel was determined to be the low compliant bidder with Henkel & McCoy the competitive compliant bidder. Following a complete review of the bid responses, the parties agreed that Marcom, Tel Plus and Lanier were non- compliant for configuration 3. The Business Telephone bid included a spare parts price list. The Business Telephone bid failed to include on the baseline equipment list the surge protector part number, however, such information was provided elsewhere in the bid response. The Business Telephone bid failed to include a part number for wiring, however, the part number for wiring was not required. The Henkels & McCoy bid included a spare parts price list. The Henkels & McCoy bid failed to list a console card on the baseline equipment list, however, this was to be provided with the console which was properly described elsewhere in the bid response. The findings of fact relating to configuration 2 and the Inter-Tel bid are applicable to configuration 3. Petitioner's bid for configuration 1 was $3641.08. The lowest responsive bid was $2343.00. Petitioner's bid for configuration 2 was $5407.97. The lowest responsive bid was $4723.00. Petitioner's bid for configuration 3 was $12,136.90. The lowest responsive bid was $9271.00. The parties stipulated that Petitioner timely filed its notice of intent to protest and the formal protest of bid award.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department of General Services enter a Final Order dismissing the formal protest of the Petitioner. DONE and ENTERED this 5th day of January, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 5th day of January, 1988. APPENDIX Rulings on Findings of Fact submitted by Petitioner: Paragraph 1 is accepted. Paragraph 2 is accepted. Paragraph 3 is accepted in part. The information requested on the spare parts price list was for planning purposes only. Response of hourly rate etc. was not required to comply with the ITB. Paragraph 4 is accepted; see Finding of Fact paragraph 13. Paragraph 5 is accepted. 6 With regard to paragraphs 6-8, to the extent such paragraphs track the language of the ITB they are accepted; however, the SMDR or SMDR option was not a mandatory item of the bid. It was indicated as an optional operational feature. To the extent paragraph 9 sets forth optional operational features (as described in Section 3.16.8 of the ITB) it is accepted; however this specific proposed Finding is irrelevant and unnecessary to the conclusion of issues raised in this proceeding. Paragraph 10 is accepted. Paragraph 11 is rejected. The SMDR or SMDR option was an optional operational feature. No bidder was disqualified because it did not have the SMDR or an SMDR option. Paragraph 12 is accepted. Paragraph 13 is accepted. Paragraph 14 is accepted. Paragraph 15 is accepted. Paragraph 16 is accepted. Paragraph 17 is accepted. With regard to paragraphs 18-20, to the extent such paragraphs track the information on p.23 of ITB they are accepted; however, the listing of the printed circuit card may not be required when bid as a component of the console which is properly described in the bid response. Paragraphs 21-23 are accepted, however, speed dialing may be provided at the station which does not require memory retention. Paragraph 24 is accepted. Paragraphs 25-26 are accepted. Paragraphs 27-29 are accepted. Paragraphs 30-33 are rejected. Each paragraph makes a conclusion contrary to the weight of evidence. Paragraph 34 is accepted. Paragraph 35 is rejected as unnecessary. For the reasons explained in the conclusions of law, whether Petitioner was or was not compliant is not material. Assuming, arguendo, Petitioner was compliant, it still lacked sufficient standing to challenge the awards. Paragraph 36-38 are rejected as contrary to the weight of evidence. Paragraphs 39-40 are accepted. Paragraphs 41-44 are rejected as contrary to the weight of the evidence. Rulings on Findings of Fact submitted by the Department. Paragraphs 1-7 are accepted. Paragraph 8 is accepted to the extent it rephrases the definition found in the ITB. Paragraphs 9-11 are accepted. With regard to paragraph 12, the system was required to retain memory. Accordingly, that reference is accepted, however, the station was not required to retained memory. Paragraphs 13-15 are accepted. Paragraphs 16-18 are accepted. Paragraphs 19-21 are accepted. Paragraph 22 is accepted in part as it correctly restates the ranking of the bidders; the rest of the paragraph is rejected as argumentative. Paragraph 23 is accepted in part as it correctly states the ranking of the bidders and disqualifications; however the rest is rejected as argumentative. Paragraph 24 is accepted in part as it correctly states the ranking of the bidders, however, the rest is rejected as argumentative. Paragraph 25 is rejected as unnecessary. Paragraph 26 is accepted. COPIES FURNISHED: Edward W. Dougherty, Jr., Esquire Post Office Box 11127 Tallahassee, Florida 32302-3127 Susan B. Kirkland, Esquire Department of General Services 453 Larson Building Tallahassee, Florida 32399-0955 Joseph W. Lawrence, II, Esquire Post Office Box 589 Tallahassee, Florida 32302-0589 Ronald W. Thomas, Executive Director Department of General Services Room 133, Larson Building Tallahassee, Florida 32399-0955
