The Issue The issue is whether Petitioner, Bay County School Board (School Board), had just cause under Subsection 1012.67, Florida Statutes (2008), to terminate the employment of Respondent, Thomas Walker, because of his absence without leave.
Findings Of Fact Respondent is employed under a Professional Services Contract and teaches at Bozeman School in Bay County. Respondent, without approval or notice to the administrator or staff of Bozeman School, failed to appear for his teaching assignment in the latter part of November 2008. After repeated attempts to reach Respondent, Dr. Tommye Lou Richardson, Director of Human Resources for Bay District Schools, ascertained that Respondent was incarcerated in the Coffee County Jail in New Brockton, Alabama, for his failure to pay child support. Respondent's absence was willful and without approved leave.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating the employment of Respondent and finding that he has forfeited any compensation since January 14, 2009, the date of his suspension without pay by the School Board. DONE AND ENTERED this 18th day of May, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2009. COPIES FURNISHED: Franklin R. Harrison, Esquire Harrison, Sale, McCloy Duncan & Jackson Post Office Drawer 1579 Panama City, Florida 32402-1579 J. E. Sawyer, Esquire 203 South Edward Street Enterprise, Alabama 36330 Thomas Walker 26802 Highway 69A, North Altha, Florida 32421 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 William V. Husfelt, Superintendent Bay County School Board 1311 Balboa Avenue Panama City, Florida 32401-2080
Findings Of Fact The Board and its program. The Florida Prepaid Post-Secondary Education Expense Board (Board) is an agency which administers the Florida Prepaid College Program. The Board sells advance payment contracts for tuition and dormitory expenses at Florida post- secondary education institutions. The Board is required by Section 240.551(8)(a), Florida Statutes (1991), to contract with a records administrator to conduct the day-to-day operations of its program. The Petitioner, BTI Services, Inc. (Barnett), is the current records administrator. BTI Services, Inc., is affiliated with Barnett Bank. The Board issued its Request for Proposal Number 92-1 on July 31, 1992, seeking a records administrator for a 3- year contract term with the option to renew the contract for further periods. The following portions of the Request for Proposal (RFP) bear upon the responsiveness of the proposals submitted by the parties: SECTION I GENERAL INFORMATION * * * 1.4 Period of Contract The duration of any contract resulting from this RFP shall be for three (3) years from the date of its execution. The current records administration contract expires on June 30, 1993. Respondent shall be completely operational on July 1, 1993. It is the intent of the Board to review and define necessary services at the end of three (3) years. Respondents shall submit in their response to this RFP, the terms and conditions for service in additional years. The Board reserves the option to renew the contract or any portion of the contract under the terms and conditions set forth in this RFP or any other such conditions as may be negotiated between the parties for two additional one (1) year periods. Renewal shall be contingent upon, among other things, availability of funds, continued need, and satisfactory performance by the successful Respondent. Moreover, the contract is subject to an annual performance evaluation of the successful firm. * * * Proposal Opening It is the Respondent's responsibility to assure that its proposal is delivered at the proper time and place of the proposal opening. Proposals which, for any reason, are not timely delivered will not be considered. Late proposals will not be accepted; they will be returned unopened to the Respondent. Offers by facsimile or telephone are not acceptable. A proposal may not be altered after opening. [Emphasis in original] Acceptance of Proposal by Board The Board reserves the right to accept or reject any and all proposals and to award the issuing contract in the best interest of the State of Florida. * * * 1.17 Restrictions on Communications with Board Staff From the date this RFP is issued until a determination is made, the only Respondent- initiated contact related to this RFP allowed between Respondent and any member of the Prepaid Postsecondary Education Expense Board, or member of the Board staff, is during the prebidder's conference. Any unauthorized contact may disqualify the Respondent from further consideration. * * * SECTION III INFORMATION REQUIRED FROM RESPONDING PROPOSERS 3.2 Sufficiency of Response Respondent's proposal must be submitted in the format outlined below. There should be no attachments, enclosures or exhibits other than those considered by the Respondent to be essential to a complete understanding of the proposal submitted. Each section of the proposal must be clearly identified with appropriate headings. . . . * * * F. Price Proposal The information requested in this section is required to support the reasonableness of the Respondent's quotation. THIS PORTION OF THE PROPOSAL MUST BE LABELED, THEN BOUND SEPARATELY FROM THE REMAINDER OF THE PROPOSAL. The price proposal shall be in the format as described in exhibit "D", Price Proposal Worksheet. Any deviation from the worksheet format or instructions will be cause for rejection of the proposal. Respondent shall also provide specific Records Administrator charge rates as referenced in Section 2.2(F)(13) for such items as computer programming, etc. * * * 3.7 Regulatory Restrictions and Litigation Each Respondent must describe in detail any past or pending regulatory restrictions, consent orders, stipulations or litigation to which the Respondent or any of its principals, owners, directors or officers has ever been a party that would affect its ability to provide the required services. Respondents must indicate if any officers, principals, owners or directors have been convicted of a felony. If so, a detailed description of each incident must be included. Respondent must also indicate whether or not any liquidated damages have ever been imposed against the Respondent for the untimely completion of any task required by the terms of any contract for services entered into between the Respondent and any other entity during the past five (5) years. If so, a detailed description of each such incident, including the amount of liquidated damages imposed, must be included. Respondent must execute a sworn statement on public entity crimes, exhibit "F." SECTION IV MANDATORY REQUIREMENTS Introduction The Board has established certain mandatory requirements which must be included as a part of any submitted proposal. The use of "shall," "must," or "will" (except to indicate simple futurity) in this RFP indicates a mandatory requirement or condition. The words "should" or "may" in this RFP indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable will not by itself cause rejection of a proposal. The right is reserved to determine which Respondents have met the basic requirements of this RFP, and to determine whether any deviation from the requirements of the specifications, terms and conditions contained herein is merely minor or technical in nature; the right to accept bids which deviate in minor or technical fashion is also reserved. Only those Respondents who have met the basic requirements of this RFP will be considered; any Respondent who has not done so will be rejected. The right is reserved to reject any or all proposals. Failure to meet any contractual obligations may result in cancellation of any award. Mandatory Criteria Specific attention is directed to the following mandatory provisions contained in this RFP. Each Respondent must comply with each of these provisions and present an index citing the page number within its proposal that fulfills these mandatory provisions. Failure to comply with these mandatory provi sions is sufficient cause to disqualify the proposal without further evaluation or consideration. [Emphasis in original] Each Respondent must provide evidence of, or expressly indicate a willingness and ability to meet, the following mandatory criteria: RFP Section Numbers Provisions 1.9 Proposals to be signed and sealed 1.13 Primary responsibility for delivering services 1.19 Annual appropriations 2.1-2.2 Scope of services requested 2.3 Control Identification of Respondent Sufficiency of response Copies of proposals Financial information Regulatory Restrictions and Litigation 6.1 General terms 6.2(A)-6.2(BB) Contents of contract SECTION IV EVALUATION Proposal Submission Only proposals submitted in the time frame stated herein and with the content as required by this RFP will be reviewed and considered by Board staff and the Board. Evaluation Criteria If Respondent does not meet all of the mandatory requirements set forth in Section IV above, such proposal may be rejected by the Board as nonresponsive. The Board seeks to contract for services described herein with the responding firm who submits the best proposal. The written proposals will be evaluated by Board staff and rankings submitted to the Board will utilize the following 100 point grading system. A. Price (35 points)--Fees and other costs charged to purchasers that affect account values or operational costs related to the program will be evaluated. THIS PORTION OF THE PROPOSAL MUST BE LABELED, THEN BOUND AND SEALED SEPARATELY FROM THE REMAINDER OF THE PROPOSAL. The fees proposed must be in the format as described in exhibit "D", Price Proposal Worksheet. Any deviation from the worksheet format or instructions will be cause for rejection of Respondent's proposal. * * * C. Personnel and Computer Capability (20 points)--The proposal shall clearly describe the background, quality and level of expertise of Respondent's staff and affirmatively state agreement with the provisions of Section 1.13, 2.2(A)(7), 2.2(A)(8), 2.2(G), 2.3, 3.2(A)-(C) and 6.2(A)-(BB). Computer capability for the scope and level of service described in paragraph 2.2 shall be evaluated. North American Financial Services, Ltd. (North American), International ComputaPrint Corporation (ICC), and Barnett submitted timely responses to the RFP which were opened by Board staff on September 30, 1992. The response of Barnett was voluminous, containing about 1,000 pages in three bound volumes. The proposal submitted by Barnett omitted 35 pages, numbered C-129 through C-164, which contained information concerning Barnett's computer capabilities. The index required by Section 4.2 of the RFP submitted with Barnett's proposal showed that the missing pages were responses to Criteria 2.2(G)6 through 2.2(G)13, which were mandatory criteria under Sections 4.2 and 5.2(C) of the RFP. These pages described the computer services to be provided during the contract term which would commence in July of 1993. Barnett's index did not indicate that the necessary response to Section 2.2 of the Board's RFP could be found in any other portions of its proposal. Because Barnett is the Board's current records administrator, Board staff knew of Barnett's current computer capabilities. What the RFP required, however, was an offer of services to be provided during the new contract term. Staff members could have drawn on their familiarity with Barnett as an existing vendor, but it would be improper for the staff to evaluate the proposal based on Barnett's current services, as they were not necessarily ones Barnett proposed to provide in the future. The discovery that pages were omitted from the Barnett proposal caused Board staff to carefully go through the proposals received from North American and ICC and, in the process of doing so, staff found in them certain defects and omissions. Neither of those proposals omitted entire sections of responses required by the RFP, however. The North American proposal omitted pricing for the two option years after the three-year base contract, which had been requested by Section 1.4 of the RFP, and failed to respond fully to Section 3.7 of the RFP, which sought a detailed description of any past or pending regulatory restrictions, consent orders, stipulations or litigation to which the bidder or any of its officers or directors had been a party which would affect the bidder's ability to provide services to the Board. The response of ICC failed to address sections of the RFP involving the contents of the contract for services. The Board 's Executive Director sent letters to all three bidders on October 26, 1992, requesting that they file the omitted materials or supplement deficient items, and offer a full explanation of why that information had not been included in their initial submissions. Each bidder then submitted a letter of explanation and the supplemental information Board staff requested. Board staff referred all three proposals, together with the supplemental information, to an evaluation committee for review, evaluation, and ranking. Under the evaluation procedure described in Section V of the RFP, a total of 300 points (100 per evaluator) could be awarded to a bidder. The committee ranked Barnett's proposal first, awarding 276 points; North American's second with 270 points; and ICC's third with 257 points. The total projected three-year costs based on each bid were: Barnett - $9,389,887; ICC - $7,789,259; North American - $7,977,564 (Barnett Exhibit 8, attachment 4, page 4, paragraph C). The evaluation was brought to the Board at its meeting on December 15, 1992. Barnett's initial proposal and supplemental response. Section 4.2 of the RFP required that every proposal include an index, citing the page numbers which addressed mandatory provisions of the RFP. It was obvious that the responses would be large, and Board staff is small. Staff could not search through proposals to try to determine whether information submitted was meant to satisfy a mandatory provision of the RFP. Bidders' attention had been specifically directed in Sections 4.1 and 4.2 of the RFP to the mandatory indexing requirements. They had notice that failure to respond to the section of the RFP dealing with the scope of services requested, or with any other specifically designated mandatory requirement, would be "sufficient cause to disqualify the proposal without further evaluation or consideration" (RFP, Section 4.2). At final hearing, Barnett identified for the first time pages within its proposal which it claimed responded to the mandatory requirements of Sections 2.2(G)6 through 2.2(G)13 of the RFP. This new index was never provided to members of the evaluation committee, for it did not exist then. It is not clear that the pages identified in this new index actually respond to the requirements of Sections 2.2(G)16 to 2.2(G)13, for no witness at the final hearing testified that they did. The submission of this new index evidences a misunderstanding of the purpose of this hearing, however. The question presented is not whether Barnett now can identify portions of its original submission which responded to mandatory requirements of the RFP. Those pages of its original submission were not indexed for the use of the evaluation committee. The Hearing Officer cannot act as a member of the bid evaluation committee and make some de novo, independent determination of the sufficiency of this new index. The only purpose of the index was to permit evaluation of the proposal, something the Hearing Officer cannot do. When Barnett replied with its letter of explanation, it included what it then characterized as the "9 copies of pages C-129 through C-164" originally required, explaining that "these pages were intended to be included in [Barnett's] response" as evidenced by "the detailed table of contents and cross- reference provided" in its initial response (North American Exhibit 4). Barnett blamed the omission on a photocopying error. Barnett's letter did not tell the Board that changes had been made to these 35 pages. They were not the pages Barnett originally intended to include with its response to the RFP, but amended pages which did not exist on the bid opening date in the form submitted on October 30, 1992 (Tr. 69, 77). Barnett's changes were due, at least in part, to Barnett's review of the North American and ICC proposals opened on September 30, 1992, and its analysis of what it believed were "overall deficiencies" in them (Moorer Deposition at 28). Barnett knew from comments by Board staff that its price proposal was about 20% higher than the other proposals (Moorer Deposition at 40). The evidence is unsatisfactory on just who initiated this discussion. Had Barnett done so, it would have been in violation of Section 1.17 of the RFP, which prohibited vendor initial contact with Board staff on the substance of the proposals before a proposal was selected by the Board. The most significant change Barnett made in the revised 35 pages offered to "serialize" dormitory and tuition accounts. Other changes referred to software modifications Board staff and Barnett were already working on. This was an attempt to increase its score under the evaluation criteria found in Section 5.2(A) of the RFP. To the extent that Mr. Stabler was careful, at final hearing, to deny that the new "serialization" proposal was a price change, but merely created a potential for a price reduction, that testimony is unconvincing. Mr. Stabler acknowledged during his deposition that the effect of serialization, if implemented, would be to cut substantially the cost to the Board for handling contracts which included payments for both tuition and dormitory space. The changes also emphasized the programming ability of Barnett, for after review of the other proposals Barnett believed that those bidders had placed too much emphasis on hardware capability and too little on programing ability. These changes were designed to enhance Barnett's competitiveness in the technical areas of personnel and computer capabilities under the evaluation criteria found in Section 5.2(C) of the RFP (Moorer Deposition at 37). Board staff recognized that the offer to provide a serialization computer program was new, and realized it could reduce the costs paid by the Board. The evaluators did not include the serialization proposal in its evaluation, because staff regarded it as an inappropriate attempt to modify price. The evaluation committee did award points for other parts of the 35 pages submitted with Barnett's October 30, 1992, letter of explanation. North American's initial proposal and supplemental response The price proposal which North American submitted used the Board's price proposal worksheet, the form specifically required by Section 3.2(F) of the RFP, which tells bidders: "Any deviation from the worksheet format or instructions will be cause for rejection of the proposal." The Board's worksheet has no space for supplying separate "option year" pricing information, even though Section 1.4 of the RFP indicated that the Board wanted pricing for a three-year base period and for two additional one-year option periods. The usefulness of the option year prices is problematic, for Section 1.4 of the RFP stated the Board's intent to redefine the services to be provided at the end of the three-year base contract, which would require a price renegotiation. The way the Board's worksheet is set up, charges are based upon the number of tuition and dormitory accounts serviced, not upon a "per year" charge. Nothing in the price worksheet or Section 3.2 of the RFP mention the possibility of stating an option year price separately from the price for the base three-year term. The Board staff did not mention the omission of option year pricing as a deficiency in the October 26, 1992, omissions letter. North American's proposal did not deviate from the worksheet format or instructions. Nothing in the RFP required that the option year prices be separately stated if no price change in the option years was proposed. North American contends that its price was good for the initial contract term and for the renewal periods. While this is somewhat self-serving, it is also consistent with the required format of the price proposal worksheet. The fundamental problem is the RFP's internal inconsistency. The request that the bidder include the terms and conditions for service in the option years (the fourth and fifth years) appears in the general information section of the RFP. But the price proposal worksheet, part of Section 3.2 of the RFP, has no place to enter option year price information. This inconsistency probably went unnoticed by Board staff because they placed no importance on the option year pricing. It has been the Board's practice to circulate a new Request For Proposal at the end of each three-year period and to negotiate new services and prices at the end of that base term. The text of Section 1.4 is consistent with this practice. The Board was focusing on the selection of a vendor to provide services during the three-year base period of the contract. The evaluation committee never considered the option year pricing in its scoring. Had it done so, it would have been a detriment to Barnett, for it already had the highest price proposal. The two other bidders had not proposed any price increase for the "option years," while Barnett had proposed an 8% price increase for those years. Because the Board's past practice has been not to rely on the option year pricing to extend contracts for the records administrator beyond the base period, North American gained no advantage in the evaluation process by failing to specifically include option year pricing, which was not called for on the required price proposal worksheet. The initial response of North American contained the sworn statement on public entity crimes required by Section 3.7 of the RFP. The submission said nothing about any past or pending regulatory restrictions, consent orders, stipulations or litigation to which North American or its officers or directors had been a party which would affect its ability to provide the required services. What is most significant is that the opening phrase of Section 3.7 requires the bidder to "describe in detail" any such matters. North American indicated by its response to the October 26, 1992, omissions letter that it had nothing to say on the subject because there were no such restrictions which it could describe (North American Exhibit 6, final page). There is no evidence that there are any restrictions which North American should have described, but did not. Another portion of Section 3.7 of the RFP required bidders to indicate "whether or not" liquidated damages had been imposed against them in the past five years for failure to meet contract obligations. Arguably, this sentence could require the response that no such damages had ever been imposed. As with the regulatory restrictions, there is no evidence that any liquidated damages had been imposed against North American in the last five years which should have been disclosed, but were not. Read together, however, it was not unreasonable for North American to say nothing in response to these portions of the RFP. North American concealed nothing by its failure to respond in the negative to Section 3.7. It gained no advantage as a result of its interpretation that the text of the section required no response from it. Its supplemental submission did not affect its bid price. Action by the Board After staff evaluated and ranked the proposals, they were submitted to the Board for formal action. The Board decided to reject the Barnett proposal as nonresponsive because the initial proposal had omitted 35 pages of mandatory information. The omission was properly chargeable to Barnett's neglect to verify that all pages required were being submitted to the Board. Although the Board did not know it, Barnett had altered the pages it submitted after its competitors' bids had been opened, in a manner designed to enhance Barnett's bid. The Board accepted the North American proposal as responsive and indicated its intention to negotiate with North American as the highest ranked responsive bidder. The Board was persuaded by North American's explanation of its failure to include specific option year pricing and failure to state that there were no applicable regulatory restrictions or instances where liquidated damages had been imposed, because there were none. The Board believed that North American had made an understandable interpretation of the Board's RFP, and that North American gained no advantage over any other bidder as the result of those omissions. Barnett filed a timely protest and formal written protest of the Board's action under Section 120.53(5), Florida Statutes (1991).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Prepaid Post-Secondary Education Expense Board rejecting the protest of BTI Services, Inc., and ordering staff to negotiate a contract with North American Financial Services, Ltd. DONE AND ENTERED in Tallahassee, Leon County, Florida, this day of March 1993. WILLIAM R. DORSEY, JR. 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 25th day of March 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0180BID The following constitute my rulings on proposed findings of fact submitted by the parties, as required by Section 120.59(2), Florida Statutes (1991). Rulings on findings proposed by Barnett: Adopted in Finding of Fact 1. Adopted in Finding of Fact 3. Sentences 1 and 2 adopted in Finding of Fact 4. Sentence 3 rejected for the reasons stated in Finding of Fact 3. The final sentence is rejected as irrelevant. Rejected because in its prehearing stipulation Barnett challenged only North American's failure to include option year pricing and to respond to the inquiry on regulatory restrictions. See also Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Findings of Fact 9 and 13-15. Sentences 1 and 2 adopted in Finding 14. The remainder is rejected for the reasons stated in Finding of Fact 15. Adopted in Finding of Fact 16. Adopted in Findings of Fact 10 and 16. Rejected for the reasons stated in Findings of Fact 19 and 20. Generally accepted in Finding of Fact 24. The final sentence is rejected for the reasons stated in Finding of Fact 23. Adopted in Finding of Fact 25. Adopted in Finding of Fact 26. 15 & 16. Addressed in preliminary statement. Rulings of findings proposed by the Board: 1 & 2. Adopted in Finding of Fact 1. 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 1. 5. Adopted in Finding of Fact 3. 6. Adopted in Finding of Fact 4. 7 & 8. Adopted in Finding of Fact 6. 9-13. Adopted in Finding of Fact 9. 14. Adopted in Finding of Fact 11. 15. Adopted in Finding of Fact 5. 16. Adopted in Finding of Fact 4. 17 & 18. Adopted in Finding of Fact 11. 19. Adopted in Finding of Fact 13. Generally adopted in Finding of Fact 12. Adopted in Finding of Fact 13. 22 & 23. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Adopted in Finding of Fact 16. Adopted in Findings of Fact 6 and 9. Generally adopted in Findings of Fact 9 and 23. Adopted in Finding of Fact 23. Adopted in Finding of Fact 17. Generally adopted in Finding of Fact 17. Adopted in Finding of Fact 18. Implicit in Finding of Fact 20. Adopted in Finding of Fact 20. Adopted in Finding of Fact 19. Adopted in Findings of Fact 18, 19 and 21. Adopted in Findings of Fact 2 and 23. Adopted in Finding of Fact 23. 38-40. Adopted in Findings of Fact 10 and 24. Adopted in Finding of Fact 26. Addressed in the Conclusions of Law. Rulings on findings proposed by North American: Adopted in Finding of Fact 1. Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 3. II.1. Adopted in Finding of Fact 4. Adopted in Finding of Fact 11. Adopted in Finding of Fact 5. Adopted in Finding of Fact 9. Generally adopted in Finding of Fact 13. Adopted in Findings of Fact 13 and 14. Adopted in Finding of Fact 13. Adopted in Findings of Fact 14 and 15. Adopted in Finding of Fact 16, although it is not clear that 2.5 millions dollars would be saved over the three-year base term of the contract. Adopted in Finding of Fact 14. Addressed in Conclusions of Law 44. Adopted in Finding of Fact 16. Implicit in Finding of Fact 13. Adopted in Finding of Fact 12. Implicit in Finding of Fact 16. Implicit in Finding of Fact 12. 17-26. Unnecessary for the reasons stated in Finding of Fact 12. Generally accepted in Findings of Fact 5 and 11. Generally accepted in Finding of Fact 10. III 1. Adopted in Findings of Fact 3, 7 Generally adopted in Finding of Fact 23. Unnecessary, covered in the prehearing stipulation. III A.1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 19. Generally adopted in Finding of Fact 18. Adopted in Finding of Fact 2. Implicit in Findings of Fact 18 and 20, when read together. Adopted in Finding of Fact 21. Adopted in Finding of Fact 21. Adopted in Finding of Fact 20. III B.1. Adopted in Finding of Fact 22. Adopted in Finding of Fact 2. Adopted in Findings of Fact 2 and 23. Adopted in Finding of Fact 23. Adopted in Finding of Fact 23. Adopted in Finding of Fact 23. Adopted in Finding of Fact 23. IV 1. Adopted in Findings of Fact 10, 24 and 25. 2. Adopted in Finding of Fact 26. COPIES FURNISHED: Robert J. Winicki, Esquire Mahoney, Adams & Criser, P.A. 50 North Laura Street, Suite 3300 Jacksonville, Florida 32202 Geoffrey Smith, Esquire Blank, Rigsby & Meenan, P.A. 204 South Monroe Street Tallahassee, Florida 32301 Paul Ezatoff, Esquire Katz, Kutter, Haigler, Alderman, Davis & Marks, P.A. 106 East College Avenue Tallahassee, Florida 32301 Mr. William W. Montjoy, Executive Director Florida Prepaid Postsecondary Education Expense Board 345 South Magnolia Drive, Suite D-13 Tallahassee, Florida 32301
Findings Of Fact Petitioner, COOK-REIFF, is an architectural firm located in Broward County, Florida. Respondent, BOARD is the governing body for the Broward County, Florida school district. On February 17, 1977, the BOARD approved the composition of the ASC. Since that dated the ASC, composed of: The Director of School Facilities, the Director of Facility Planning and Construction, two architects, two engineers, a representative of the District Advisory Committee, a representative of the Broward County Council for the P.T.A., and one designee from the office of the Superintendent of Schools for Broward County, Florida has acted for the BOARD in performing the major portions of those functions required of the BOARD by Section 287.055, Florida Statutes. The responsibility for selection of an architectural firm and the negotiation of the fee for School Board projects has been delegated by the School Board to the ASC. On January 21, 1982, the BOARD adopted Rule 6GX6-7003. The Rule as amended on January 20, 1983, sets forth administrative procedures for selecting professional services in compliance with the Consultants' Competitive Negotiations Act, Section 287.055, Florida Statutes (Supp. 1984), and Rule 6A-2.04, Florida Administrative Code. In particular, this Rule sets forth criteria to be considered in selection of an architectural firm for BOARD projects. Prior to 1982, the ASC used Chapter 287, Florida Statutes, as it's guideline in selecting architectural firms. The procedures and criteria contained in the administrative rule were modeled after Chapter 287, Florida Statutes. From January 1982, up to and including September 30, 1985, the ASC selected various architects for contracts for school projects by following the criteria provided for in the BOARD'S Rule 6GX6-7003. From the inception of the Rule in 1982 until the October 17, 1985, meeting of the BOARD, the BOARD approved each and every recommendation of the ASC. At no time prior to October 15, 1985, did anyone including BOARD members, directly or indirectly express dissatisfaction with the criteria that were contained within Rule 6GX6-7003 or the selection process that was being used by the ASC. On May 16, 1985, the BOARD approved advertising for the selection of an architect to design the new Prototype High School. In accordance with the authorization to advertise, the BOARD, through the department known as School Facilities, notified architects of the project and sought applications. On June 14, 1985, COOK-REIFF filed its application, i.e., an answered Architectural Questionnaire, with the Director of School Facilities for consideration for the Prototype High School. The application was reviewed and evaluated by Mr. Crouch using an evaluation form developed by Mr. Pulver's office. Mr. Pulver serves as director for School Facilities for the BOARD and Mr. Crouch, who mainly acts as Mr. Pulver's assistant, is the Director for Facility planning and Construction Supervision. On September 17, 1985, the ASC, in keeping with procedure established since 1982, met to "shortlist" i.e., to reduce the field of applicants for the Prototype High School. On September 17, 1985, a short list, which included COOK-REIFF, was prepared by the ASC which reduced the field of architectural firms to eight (8). Notice was then given to each of these firms advising that they would be allowed to make a twenty (20) minute oral presentation on September 30, 1985, before the ASC. On September 30, 1984, the ASC met with seven (7) members present and interviewed each of the eight (8) architectural firms on the short list. Following the interviews, the ASC met and discussed the eight (8) applicants. Following the discussions of these applicants, the following occurred: Each of the committee members that were present, wrote their first, second and third preferences on a piece of paper. This piece of paper was then placed in the middle of the table and one of the committee persons, Ms. Pat Mason, opened each of the ballots and announced the results. As a result of this first ballots the list of eight firms was narrowed to five firms and a second vote was held in the same manner. As a result of the second vote, three architectural firms were selected in order of preference with COOK-REIFF being selected by the ASC as its first preference as the architect for the Prototype High School project. Both the meetings of September 17 and September 30th. 1985 were open to the public. The record does not reflect whether notice of these meetings was published or advertised to place the public on notice as to when the ASC would be meeting. The format of voting used by the ASC was chosen so that various members would not be influenced by how other members might vote. The voting procedure which is described above is the same procedure which the ASC had used on different occasions in the past since 1982 where voting was by ballot and not by motion from the floor. This procedure was referred to as "secret ballot" in the Minutes of the ASC. No objections to these minutes were made by any member and Mr. Crouch received no objections from the members. The BOARD was aware that this method of balloting was being used by the ASC. No members of the then constituted ASC ever objected to this manner of voting either before or after September 30, 1985. In fact, prior to October 15, 1985, no one, including BOARD members had ever objected to this process which had been in use since 1982. And, prior to November 21 or 25, 1985, no one ever advised Mr. Pulver as Chairman of the ASC, that the process might be in violation of State Law. By letter dated October 3, 1985, Mr. Crouch notified COOK-REIFF that they had been selected by ASC as its first choice as the architect for the prototype high school. Following notification that they had been selected, COOK-REIFF through Cary B. Cooke negotiated a fee for the contract with Mr. Robert Pulver the BOARD's representative. These negotiations took place over a two-day period with a resultant $706,500.00 fee. Although Mr. Crouch negotiated the feed the fee as well as the balance of contract would have to be submitted to the BOARD for approval. After the fee was negotiated, Mr. Edwin Jacquith, the Project Coordinator for the Prototype High School for the BOARD, met with Cary B. Cook of COOK-REIFF on at least three (3) occasions to discuss, among other things, a Schedule of Events. Mr. Jacquith provided Mr. Cook with various documents including aerial photographs, surveys, facility lists, specifications, Chapter 6A-2 Florida Administrative Code and a proposed Schedule of Events. Mr. Jacquith requested that Mr. Cook prepare a Schedule of Events and submit it to Mr. Jacquith. Mr. Cook prepared a Schedule of Events which was provided to Mr. Jacquith and approved. In addition, after the fee was negotiated, but prior to October 15, 1985, Mr. Cook reviewed the documents which were provided to him by Mr. Jacquith and Mr. Cook prepared certain preliminary drawings in conjunction with the Prototype High School project. The minutes of the meetings of September 17, 1985, and September 30, 1985, were first officially provided to the BOARD members as supporting documentation for the recommendation for the approval of the contract with COOK-REIFF. The aforesaid recommendation was placed on the BOARD's agenda for October 17, 1985. The BOARD met on October 15, 1985, for a conference meeting to review the agenda for the meeting on October 17, 1985. On October 17, 1985, the BOARD discussed "Item E-14--Assignment of architect--prototype high school" with regard to several members concern over the BOARD's present procedure as set out in its Rule 6GX6-7003 and voted to disapprove the Recommendation of the ASC. Although one member mentioned in passing some concern over the balloting process used by the ASC, the minutes do not reflect any further mention or discussion on this point and the balloting does not appear to be the basis for disapproval of Item E-14. The minutes do not reflect that any member of the BOARD ever contended that the ASC failed to follow the procedure adopted by the BOARD in its Rule 6GX6-7003 in January 1982 and amended in January 1983 or that the selection of COOK-REIFF was improper. The BOARD heard presentations with regard to Item E-14 by COOK-REIFF, counsel for COOK-REIFF, school administrators and by the general public. At the October 17, 1985 meeting, Mr. Robert Pulver, the BOARD'S representative, responded at length to questions from BOARD members with emphasis on how the ASC applied the criteria contained in Rule 6GX6-70O3 and was surprised that the BOARD questioned the criteria that the ASC had been following since 1982. After the vote to reject the recommendation of the ASC by the BOARD on October 12, 1985, COOK-REIFF filed a Notice of Protest and subsequently filed a formal written protest in the form of the document known as Petition To The School Board of Broward County, Florida, in accordance with Section 120.53(5)(b), Florida Statutes (Supp. 1984), as amended by Chapter 85-180, Section 77, Laws of Florida. The BOARD convened a meeting on November 21, 1985, to consider the petition of COOK-REIFF but no decision was reached on this date and the meeting was adjourned to allow counsel for the BOARD to research the matter and reconvened on November 25, 1985. It was during the meeting on November 25, 1985, that the violation of Chapter 286, Florida Statutes, commonly known as the Florida Sunshine Law, was first raised. The violation involved the method of voting used by the ASC in the September 30, 1985 meeting which was described by the ASC chairman in the minutes of that meeting as a "secret ballot." The method of voting is more fully set out in Finding of Fact 15. The BOARD has not selected another architectural firm to be awarded with the contract for the Prototype High School Project. BOARD Rule 6GX6-7003 has not been amended or changed since January 20, 1983. The BOARD has however, recommended to the Superintendent of Schools that he formulate a committee for the purpose of reviewing the criteria and procedures so that this policy can be amended and, in fact, such a committee has met for that purpose. COOK-REIFF'S competence is not at issue in this matter. The BOARD had used a form contract with architectural firms for a number of years. Although this form contract was modified during 1985, the only changes to that contract are contained in the section with respect to professional fees for services rendered. In selecting COOK-REIFF as the architectural firm to be awarded the Prototype High School project, the ASC followed the procedures and applied the criteria contained in the BOARD's Rule 6GX6-70O3.
Recommendation Based on the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Respondents School Board of Broward County, Florida enter a final order awarding the contract for architectural services on the Prototype High School to the Petitioner, Cook-Reiff Association, Inc. Respectfully submitted and entered this 6th day of February 1986, in Tallahassee, 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 6th day of February 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-3985-BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1, except for last sentence which is included in conclusions of law. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 8. Adopted in Finding of Fact 10. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Adopted in Finding of Fact 16 but clarified. Adopted in Finding of Fact 15 but clarified. Adopted in Finding of Fact 17. Adopted in Finding of Fact 18 but clarified. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 21 but clarified. Adopted in Finding of Fact 22. Adopted in Finding of Fact 23. Rejected as unnecessary, immaterial and irrelevant. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25. Rejected as unnecessary. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Finding of Fact 32. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Adopted in Finding of Fact 8, but corrected to show the date as May 16, 1985. 2. Adopted in Finding of Fact 9. 3. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 2. Adopted in Finding of Fact 12 but corrected to show the date as September 17, 1985. Adopted in Finding of Fact 32. Adopted in Finding of Fact 4. Adopted in Finding of Fact 14 and 15. Adopted in Finding of Fact 15 and 18. Adopted in Finding of Fact 16. Adopted in Finding of Fact 15 with the exceptions of the language secret ballot" which was changed to "procedure was referred to as secret ballot" in the minutes . . ." and that the "voting was . . . conducted prior to any discussion by the committee as to architectural presentations" which are rejected as not supported by the minutes of the September 30, 1985 meeting of the ASC. See Petitioner's Exhibit No. 8. Adopted in Finding of .Fact 15. Adopted in Finding of Fact 15. Adopted in Finding of Fact 20. Adopted in Finding of Fact 21. Adopted in Finding of Fact 21. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. The first two (2) sentences adopted in Finding of Fact 24. The last sentence is rejected as not supported by substantial competent evidence in that the minutes do not reflect any discussion of "secret balloting." 21. Adopted in Finding of Fact 24 except for the portion indicating that the BOARD discussed "secret balloting" which rejected for the same reasons expressed above in paragraph 20. COPIES FURNISHED: Maurice M. Garcia, Esquire Kenneth A. Rubin, Esquire 2021 Tyler Street Post Office Box 650 Hollywood, Florida 33022 Edward J. Marko, Esquire Suite 322, 1040 Bayview Drive Post Office Box 4369 Fort Lauderdale, Florida 33338-4369 Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Superintendent School Board of Broward County 1320 Southwest Fourth Street Ft. Lauderdale, Florida 33312
The Issue Whether the Miami-Dade County School Board's failure to disqualify Magnum Construction Management Corporation from bidding on Project No. A0746 pursuant to paragraph G. of the General Requirements of the Request for Qualifications issued in connection with the project was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board The School Board is a duly constituted district school board charged with the duty of operating, controlling, and supervising all free public schools in Miami-Dade County, including, among many others, Westview Middle School (Westview) and Miami Coral Park Senior High School. The Westview Project Westview is currently undergoing expansion, remodeling, and renovation work (Westview Project). The project is almost complete. Blanca Bazan is a School Board employee who serves as project manager on School Board construction projects. At all times material to the instant cases, Ms. Bazan has been the Project Manager on the Westview Project. LIVS and Associates (LIVS), an architectural and engineering firm, has been the Project Architect/Engineer (or A/E of Record) on the Westview Project since October of 1997, when it entered into a written agreement (which is still in effect) to assume such responsibility in return for a "lump sum" payment, plus additional fees (LIVS Westview Agreement). Paragraph III.G. of the LIVS Westview Agreement describes the "basic services" LIVS is to provide during the "construction phase" of the project. It provides, in pertinent part, as follows: The following are to be performed by the A/E [LIVS], and shall in all cases be in accordance with the requirement of the contract documents: OBSERVATION a.) The A/E shall provide construction administration of the Contract for Construction as set forth in this AGREEMENT and in the General Conditions of the Contract for Construction unless otherwise provided in this AGREEMENT. The A/E shall visit the site at least weekly or as appropriate to the stage of construction or as otherwise directed by the BOARD to become generally familiar with the progress and quality of the Work completed and to determine in general if the Work is being performed in a manner indicating that the Work when completed will be in accordance with the Contract Documents. As part of the A/E's basic services, the A/E shall conduct 120 on-site observation visits. A/E shall provide a report to the PM [Project Manager] . . . . On the basis of on-site observations as the A/E, the A/E shall keep the BOARD and Contractor informed immediately in writing of the progress or lack of progress and quality of the Work, and shall endeavor to guard the BOARD against defects and deficiencies in the Work. The A/E shall at all times have access to the Work, wherever it is in preparation or progress. * * * b.) . . . . A/E will enforce the faithful performance of Contract and assure that the Work has been or is being performed in accordance with the Construction Documents. . . . A/E will provide written notice to BOARD if it observes or has reason to become aware of any defect or non- conformance with the Construction Documents. CONTRACTOR'S SUBMITTALS The A/E shall review and evaluate samples, schedules, shop drawings, and other submissions for conformance with the design requirements of the Project, applicable codes and ordinances. . . . The A/E shall also prepare in a timely manner change order items, including the proper documentation for DOE transmittal. . . . * * * 4. QUALITY CONTROL The A/E shall make a reasonable effort to evaluate materials and/or workmanship for conformance with Construction Documents, evaluate quality control testing reports, advise the Construction Contractor and the BOARD immediately of any unacceptable materials and workmanship the A/E may discover and [e]nsure that the Contractor take appropriate action to remedy unacceptable conditions. * * * CERTIFICATION OF PAYMENTS The A/E shall review the Contractor's notarized requisitions for payment, the schedule of values, subcontractor partial releases and the Project schedule. The A/E shall determine the amount which in the A/E's opinion should be paid to the Contractor and shall recommend for [the] BOARD'S approval certificates for payments in such amounts. These certificates will constitute a representation to the BOARD, based on site observations by all appropriate Designated Specialists for architectural and engineering disciplines and on the data comprising the application for payment, that the Work has progressed to the point indicated. By recommending a certificate for payment consistent with the contract documents, the A/E shall also represent to the Board that, to the best of the A/E's knowledge, information and professional judgment, the quality of work is in accordance with the Construction Contract Documents, unless the BOARD has been notified to the contrary in writing. Prior to issuing certification for payment, A/E shall review the status of Contractor's Construction Documents and Project schedule and verify that the documents and/or schedules are up-to-date and accurate to the extent visual observation of construction will disclose. A/E shall also confirm that after the first application for payment, each subsequent application shall be accompanied by subcontractor partial lien release fully accounting for subcontractor payments due for the previous application. If the Construction Documents and Project Schedule are not up-to-date and/or accurate, A/E shall include in its certification for payment a statement that the Construction Documents and/or Project Schedule are not up-to-date. In such event, BOARD may, a.) hold an additional ten (10)% of amount then due Contractor until A/E verifies that the Construction Documents and/or Project Schedule are up-to-date and accurate, b.) refuse to process the partial or final requisition for payment, or c.) pay Contractor. . . . The A/E's certification is a representation by A/E to Owner that all required items noted herein are submitted and proper and serves as a recommendation for payment only. The A/E shall make every reasonable effort to process the Contractor's requisition for payment in accordance with the timelines[] established in the General Conditions of the Construction Contract. . . . * * * SUBSTANTIAL COMPLETION The A/E, upon written notification by the Contractor that the Work is substantially complete and ready for substantial completion shall promptly conduct inspection to determine the date or dates of substantial completion for the work. . . . c) Not Substantially Complete If A/E determines that the Work has not achieved Substantial Completion, A/E will notify Contractor in writing of the deficiencies within ten (10) days of the Inspection. FINAL COMPLETION AND FINAL PAYMENT Upon receipt of written notice that the Work is ready for Final Inspection and Acceptance and upon receipt of a final Requisition for Payment, or at completion of the thirty (30) day punchlist period, whichever is earliest, A/E, its engineers and other consultants, BOARD and Contractor shall participate in a walk-through to inspect the Work. At the conclusion of the inspection, the Work shall be determined to be as follows: Finally Complete If it determined that the Work has achieved Final Completion, final payment shall be made in accordance with the Contract Documents. Not Finally Complete If it is determined that the Work has not achieved Final Completion, A/E shall prepare a Final Completion Punchlist and Final Completion shall be achieved in accordance with the Contract Documents and such other consequences as allowed by contract and at law shall be employed. . . . After all Final Inspection Punchlist items have been completed, A/E will recommend to BOARD acceptance of the Project and make recommendations regarding Contractor's final payment request. . . . Paragraph X.B. of the LIVS Westview Agreement provides as follows: If for any reason, the A/E is unable to perform the services under this contract, the BOARD reserves the right to either name or approve the A/E selected to complete the performance of this AGREEMENT. The BOARD reserves the absolute right to recommend a successor A/E or terminate the services of the A/E.[3] Paragraph XII. of the LIVS Westview Agreement provides that "[t]he BOARD may terminate this AGREEMENT, with or without cause, at any time upon thirty (30) days written notice to the A/E." With LIVS' assistance, a Project Manual for the Westview Project (Westview Manual) was prepared in anticipation of the letting of the Contract for Construction of the project through a competitive bidding process. Included in the Westview Manual were the General Conditions of the Contract for Construction. Subsections 3.1.1, 3.3.1, 3.3.2, and 3.3.3 of these General Conditions read as follows: 3.1.1 Contractor is the person, firm or corporation authorized to do business in the State of Florida and properly licensed or registered for the work to be performed with whom a Contract has been made with the Board for the performance of the Work described in the Construction Documents. * * * Contractor shall supervise and direct the Work in a manner consistent with contemporary community standards. Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Construction Documents give other specific instructions concerning these matters. Contractor shall be responsible to Board for acts and omissions of Contractor's employees, Subcontractors and their agents and employees and other persons performing portions of the Work under the Contract and shall be responsible to A/E and Board for coordination and complete execution of the Work in accordance with the Construction Documents. 3.3.3. Contractor shall not be relieved of obligations to perform the Work in accordance with the Construction Documents either by activities or duties of A/E in its administration of the Contract, or by tests, inspections or approvals required or performed by persons other than Contractor. In or around 1999, the Contract for Construction of the Westview Project was awarded by the School Board to J.V. Construction Corporation (J.V.). As required by law and the terms of the Contract for Construction, J.V. executed and delivered to the School Board a payment and performance bond issued by The Hartford Fire Insurance Company (Surety). J.V. subsequently defaulted and its right to proceed under the Contract for Construction was terminated by the School Board, which called upon the Surety to fulfill the Surety's obligations under the payment and performance bond it had issued. As a result, the Surety "essentially step[ped] into the shoes of [J.V.]" under the Contract for Construction.4 The Surety thereafter contracted with MCM to act as a "completion contractor" and complete the work J.V. had begun under the Contract for Construction. The School Board was not a party to this contractual arrangement. The Completion Contract into which the Surety and MCM entered (which has been in effect since October 25, 2001) provides, in pertinent part, as follows: THIS COMPLETION CONTRACT (the "Contract") is effective the 25th day of October 2001 by and between The Hartford Fire insurance Company (the "Surety") and Magnum Construction Management Corp. (the "Completion Contractor"). RECITALS WHEREAS, J.V. Construction Corp. (the "Former Contractor") and THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA (the "Owner") entered into a contract (the "Original Contract") for the Former Contractor to furnish all labor and material and perform all work for the construction of an addition to the Westview Middle School Project No. A0670 (the "Project") in accordance with the terms and provisions of the Original Contract including all contract documents forming a part of the Original Contract; WHEREAS, as required by law and under the terms of the Original Contract, the Former Contractor and Surety made, executed and delivered to the Owner a Performance Bond, Bond No. 21 BCS AE 8081, and Payment Bond, Bond No. 21 BCS AE 8081 (collectively, the "Bonds"), each in the penal sum of $6,678,000.00; WHEREAS, the Owner has terminated Former Contractor's right to proceed under the Original Contract, and the Owner has called upon the Surety to fulfill its obligations as surety under the terms of the Performance Bond; WHEREAS, the Completion Contractor has submitted a proposal dated July 25, 2001, to the Surety to complete the Original Contract, and said proposal is incorporated herein . . . ; and WHEREAS, the Surety and the Completion Contractor desire to enter into this Contract under the terms and conditions hereinafter set forth. NOW, THEREFORE, the Surety and the Completion Contractor, for and in consideration of the mutual obligations and promises herein set forth, do contract and agree as follows: AGREEMENTS Contract Documents. The Contract to the Surety consists of the terms and provisions contained herein, including the proposal from MCM Construction to the Surety dated July 25, 2001, to complete the Original Contract . . . ; and the Original Contract, including all General, Supplementary and Special Conditions, drawings, specifications, forms, addenda and documents forming a part of the Original Contract and any modifications to the Original Contract, all of which are incorporated herein by reference and which are hereinafter referred to collectively as the "Contract Documents." The Completion Contractor hereby warrants that it has received and read all of the Contract Documents. Strict Compliance. The Completion Contractor shall be bound to the Surety by all of the terms and provisions of the Contract Documents, including administrative as well as technical provisions, and shall strictly comply therewith in all respects. Furthermore, the Completion Contractor shall be bound in the same manner and to the same extent that the Surety and the Former Contractor or either of them would be bound to the Owner under the Original Contract, including but not limited to the conditions or determinations by the Owner with respect to all work done thereunder. The Completion Contractor shall have no responsibility or liability for indebtedness incurred by the Former Contractor. * * * Work to be Performed. The Completion Contractor shall furnish and pay for all labor, materials, services and equipment and shall do everything else necessary to perform and satisfactorily complete the work of the Original Contract as required by the Contract Documents to the satisfaction of the Surety and the Owner in such manner as to fully protect and save the Surety harmless as to its liability to the Owner for the completion of the original Contract (The "Work"). Time for the Performance of the Work. . . . . Subject to allowable time extensions as provided under the terms of the Original Contract, if the Completion Contractor fails to achieve Substantial Completion as defined in the Original Contract in the time allowed by this Paragraph, the Completion Contractor is liable to the Surety for all liquidated damages assessed against the Surety for the Work under the Original Contract after 713 days from the execution of this Agreement by both parties. The Surety may withhold from the Completion Contractor payments which otherwise may be due to the Completion Contractor in an amount equal to the liquidated damages assessed by the Owner. Price. The Surety shall pay to the Completion Contractor and the Completion Contractor agrees to receive and accept Four Million, Seven Hundred Eighty Eight Thousand, Three Hundred ($4,788,300.00) Dollars (the "Price") as full compensation for the performance and completion of the Work as described in the Contract Documents. . . . * * * 9. Payment. As specified in the Original Contract, the Completion Contractor shall prepare, sign and submit to the Owner, on behalf of the Surety, a request for payment (the "Surety/Owner Requisition") showing the value of the work completed and the materials stored to date in accordance with the terms of the Original Contract. The Surety/Owner Requisition shall be based on the Original Contract price of the Former Contractor. The amount of the Surety/Owner Requisition as approved by the Owner and the Surety shall be due and payable to the Completion Contractor within seven (7) days after the Surety receives payment from the Owner. If the Owner refuses to pay the Surety for any reason related to the Completion Contractor's performance, nonperformance, or in any way related to the Completion Contractor's actions, the Surety shall have no obligation to pay the Completion Contractor until the Owner pays the Surety. In this event, the Surety shall only be obligated to pay the Completion Contractor whatever amounts are received by the Surety within seven (7) days of the Surety's receipt of payment from the Owner. In the event Owner refuses to pay Surety for any reason NOT related to the actions of the Completion Contractor, or its Subcontractors, Surety shall make payment to completion contractor, for all work in place as of the date of the payment application, within the timeframe set forth in the Original Contract for payment to the Original Contractor from the Owner. * * * B. In the same time frame as specified in the Original Contract, the Completion Contractor shall prepare and submit to the Surety a request for payment (The "Surety/Completion Contractor Requisition") based upon the amount of the Completion Contractor's price to the Surety. The Surety/Completion Contractor Requisition shall be based on the same percentages of completion (the value of the work completed and the materials stored to date (as the Surety/Owner Requisition.). The Surety shall pay the Completion Contractor for the Surety/Completion Contractor Requisition as specified in the immediately preceding paragraph. * * * Defects in Work. The Completion Contractor shall be responsible for any and all defects in the work performed or materials supplied by the Completion Contractor and/or any of the Completion Contractor's subcontractors or materialmen after the execution of this Agreement by both parties. Independent Contractor. Except as otherwise provided in this Contract and the Original Contract the Completion Contractor will be permitted to exercise the full prerogatives of a prime contractor, in prosecuting the work, including but not limited to the selection and classification of supervisors and workers, scheduling, determination of equipment and material requirements, and the establishment of work hours and work week including overtime. It is further understood and agreed that the Completion Contractor is an independent contractor in connection with all work to be performed by it pursuant to the Contract Documents. * * * The Completion Contractor as the Surety's Representative on the Project. The Surety shall be represented at the Project by the Completion Contractor. Prior to the issuance of the Notice to Proceed, the Completion Contractor shall name, and the Surety shall specifically authorize in writing an individual with the Completion Contractor to be its representative (the "Authorized Individual") solely for the purposes set forth in this paragraph. The Authorized Individual will represent the Surety in dealing with the Owner on day to day construction issues with respect to the Project. The Surety hereby designates the Authorized Individual to prepare and process pay requisitions on the Contract. However, the Surety will sign all pay requisitions submitted to the Owner. Payments from the Owner shall be made payable to the Surety and transmitted to the Surety . . . . * * * 17. Termination of Agreement. Termination for Convenience. This Contract may be terminated in whole or in part by the Surety at any time for the Surety's convenience, provided the Completion Contractor is given not less than ten (10) calendar days written notice of intent to terminate and an opportunity for consultation with the Surety prior to termination. . . . Termination for Cause. Should the Completion Contractor, at anytime, in the judgment of either the Owner or the Surety, refuse or fail to supply a sufficient number of properly skilled workmen or materials, tools, equipment, facilities, or supplies of a proper quality; or fail in any respect to prosecute the work with promptness and diligence; or interfere with or impede the work of others on the Project; or fail in the performance of any of its obligations under this Contract or under the Original Contract, and should the Completion Contractor fail within three (3) days after receipt of written notice from either the Owner or the Surety to remedy such default; . . . or disregard the instructions of the Owner or the Surety; or for any other cause whatsoever shall not carry on the work in an acceptable manner, the Surety may, in any such event, either terminate this Contract or may exclude the Completion Contractor and its employees and agents from the work without terminating this Contract. . . . Following the execution of the Completion Contract, the Surety's attorney wrote a letter, dated November 7, 2001, to Ms. Bazan, which read as follows: The Hartford is in receipt of your letter dated November 2, 2001, and has requested that we respond on its behalf. In response to your specific questions, please be advised of the following: The Hartford's authorized representative on the project is: Mr. Fernando Munilla MCM Corp. 6201 S.W. 70th Street Second Floor Miami, Florida 33143 The Hartford has also authorized Mr. Fernando Munilla to prepare and process pay requisitions on the project. However, the Hartford will sign all pay requisitions submitted to the School Board. Payments from the School Board shall be made payable to the Hartford Fire Insurance Company and transmitted to The Hartford at the following address unless and until the School Board is notified in writing of a different address: The Hartford Fire and Insurance Company Hartford Plaza-T4 Hartford, Connecticut 06115 Attention: Robert Griffith, Esq. Bond Claims Mr. Fernando Munilla shall have, on behalf of The Hartford, the authority to negotiate and sign change orders for extra work requested or required by the School Board (hereinafter "Change Order") without The Hartford's prior written approval, provided that the Change Order does not exceed $10,000.00 and that MCM requests and is given additional time to perform the Change Order. If the Change Order does exceed $10,000.00, or if MCM requests additional time but no additional time is given to MCM to perform the Change Order, then The Hartford's written approval is required to negotiate the Change Order and the final Change Order must be signed by The Hartford and not Mr. Munilla. If the total of the approved Change Orders exceeds the sum of $50,000.00, then The Hartford, and not Mr. Munilla, must approve in writing all additional or subsequent Change Orders regardless of the amount of each such Change Order. Mr. Munilla has no authority to negotiate deductive Change Orders, credits, backcharges or net deductions from the Original Contract of any nature whatsoever without The Hartford's prior written approval. Mr. Munilla has no authority to negotiate on behalf of The Hartford on any disputes between MCM and The Hartford. I trust this letter answers all of your questions. Please do not hesitate to contact me should you require any additional information or clarification. Since the effective date of the Completion Contract, LIVS, acting pursuant to the LIVS Westview Agreement as the School Board's A/E of Record on the Westview Project, has been inspecting and evaluating the work performed by MCM under the Completion Contract and verifying that work for which payment is sought (through the submission of pay requisitions by MCM on behalf of the Surety) has been completed in accordance with the requirements of the Contract for Construction. If a pay requisition is approved by LIVS, it is then sent to Ms. Bazan for her review and approval. If everything is in order, Ms. Bazan signs the pay requisition and then "run[s] it through the chain of command." When all the necessary signatures are obtained, the School Board makes payment to the Surety, which, in turn, pays MCM under the terms of the Completion Contract. MCM does not have any contract with the School Board in connection with the Westview Project. The payment it receives for the work it does on the project comes from the Surety (with which it does have a contractual relationship), not from the School Board. The School Board considers the Surety to be the Westview Project "contractor" (as evidenced by MCM Exhibit 19, which is an excerpt of an October 30, 2002, printout listing School Board construction projects).5 In the Statement of Contractor's Qualification that MCM submitted to the School Board in 2002 to obtain its Certificate of Contractor Prequalification for "General Contractor [W]ork" (which certificate was effective July 10, 2002, until July 10, 2003, and authorized MCM "to have under contract with the [School] [B]oard at any one time a total dollar value of work in the amount of $100,000,000.000 and maximum dollar value of each individual project in the amount of $40,000,000.00"), MCM stated, among other things, the following under "Contracts in Progress": PROJECT NAME: WESTVIEW MIDDLE SCHOOL- REMODELING & RENOVATION OWNER: Miami-Dade County Public Schools, Blanca Bazan (305)995-4538 ARCHITECT: LIVS and Associates CONSTRUCTION COST: $4,788,300 START/COMPLETION: 10/01 to 10/03 DESCRIPTION OF PROJECT: Addition, renovation and remodeling of an existing middle school with very stringent phasing requirements and time frames. The project consists of three phases. The first phase is a new building with classrooms and a media center, as well as a new parking lot. The second phase consists of the renovation and remodeling of a one-story building with a courtyard, classrooms, locker rooms, band room, and shop class. The third phase is a two-story building with a parking lot, classrooms, auditorium and an immediate phasing that consists of remodeling a cafetorium during summer break. The remodeling and renovation includes: asbestos abatement, architectural, electrical and mechanical demolition. The Instant Project In or about July of 2002, the School Board issued a Request for Qualifications for Design-Build Firms for "State School 'MMM' 1600 Student Station Addition at: Miami Coral Park Senior High School (Project No. A-0746)" (RFQ). In a design-build project like the Instant Project (in contrast to the "traditional bid contract scenario"), the School Board enters into a single contract (with a design-build firm) for both the design and construction components of the project.6 In the Legal Advertisement that was part of the RFQ, the School Board announced that it "intend[ed] to pre-qualify three (3) to six (6) design-build firms to subsequently invite them to bid" on the Instant Project and further stated, in pertinent part, the following: Firms and companies desiring to participate in the design-build pre-qualification process shall submit an original qualification proposal and eight copies . . . . * * * If the applicant is a joint venture, an executed copy of the joint venture agreement must be submitted with the application. Percentages of participation of fees must be clearly stated for each joint venture partner. Only one submittal will be accepted per applicant, either as a single prime or as part of a joint venture. Firms or companies desiring to participate in this contract must have been pre- qualified by the Board, in accordance with Board rule for Pre-Qualification of Contractors for Educational Facilities Construction, prior to submitting their proposal for this advertisement. . . . The General Requirements portion of the RFQ provided, in pertinent part, as follows: In order to be considered, proposers must meet the following basic requirements: * * * A pre-proposal conference will be held . . . . Attendance is highly encouraged. This will be the only opportunity to present questions regarding the proposal. Written questions may be forwarded to Mr. Ivan M. Rodriguez, R. A., . . . and said questions will be answered at the pre-proposal conference. Questions and answers will be distributed to attendees. Proposers must be authorized to do business in the State of Florida and must possess all required registration, certification and licenses (including design and construction) in accordance with all applicable Florida Statues, ordinances, regulations, and/or Board Rules. A joint venture, including a joint venture composed of qualified business organizations, is itself a separate and distinct organization that must be qualified in accordance with Board Rules and Florida Statute 489.119(2)(c). Proposers must have been in business for a period of no less than five years. In the event of a joint venture or a newly formed company, at least one of the entities of the joint venture or principal of the newly formed company must have been in business for a period of no less than five years. Any proposer, firm or company desiring to participate in this process must not have as a part of its team an A/E firm presently under contract with the Board for a specific project and a General contractor for the same project. The Board considers this a conflict of interest and such proposals will not be considered for award of a contract under this Request for Qualifications. * * * M. MDCPS reserves the right to reject any proposal, to waive technicalities, or to accept the proposal that, in its sole judgment, best serves the interest of Miami-Dade County Public Schools. * * * Failure to file a protest within the time prescribed in §120.57(3), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Any questions concerning this RFQ should be directed to the Department of A/E Selection, Negotiations & Design Management; attention, Mr. Ivan M Rodriguez, R. A. Director at . . . . The Pre-Qualification Process portion of the RFQ provided, in pertinent part, as follows: Intent: To pre-qualify between three (3) to six (6) design-build firms to subsequently invite them to bid on the following project: State School "MMM" 1600 Student Station Addition @ Miami Coral Park Senior High School (Preliminary estimated Construction Cost- $17,473,890) 8865 S.W. 16th Street, Miami, Florida 33165 Project No.: A0746 The selected proposer will be placed on a list of qualified bidders for bidding on design-build services for the above project. * * * C. Pricing The selected proposers will be allowed to bid the above listed project[], under a competitive bid process, based on design criteria established by a Design Criteria Professional under contract by MDCPS. The Evaluation/Scoring Process portion of the RFQ provided, in pertinent part, as follows: All proposers will be evaluated based on information presented in their submittals, utilizing the Board approved "Procedure[] for [] Selection of Design-Build Firms" dated January 5, 1994 (Updated March 10, 1999) . . . . The "Procedure[] for [] Selection of Design-Build Firms" referenced in this portion of the RFQ provided, in pertinent part, as follows: I. SELECTION PROCESS: INTENT To select Design-Build firms for bidding on each DCPS Design-Build project identified. Selected proposers will be placed on a list of qualified bidders for bidding on each DCPS Design-Build project as advertised. SCHEDULE: Dates for the items listed below shall be projected and become part of future Request for Proposals (RFP) advertisement. Board Review Mailing Advertisement Proposal Submittal Deadline Evaluation Interviews Bid on Design-Build Projects Award of Design-Build Project * * * PRICING: Selected proposers will be allowed to bid each Design-Build project identified under a competitive bid process. * * * EVALUATION/SCORING PROCESS: All proposers will be evaluated based on information presented in their submittals . . . . SCORING The evaluation/scoring process will be conducted in two steps. First, staff shall evaluate all factors in the Initial Screening section of Form-1 . . . . Second, the Selection Committee shall evaluate all factors contained in the Interview section of Form-1 . . . . The evaluation/scoring process shall be as follows: INITIAL SCREENING All proposers will undergo an initial screening process conducted by staff where they will be evaluating the proposer[]s' qualifications. The proposers will be evaluated by staff utilizing Form-1 . . . ; maximum score in this category is 115 points. Proposers that do not comply with the RFP will not be accepted and shall be duly notified. INTERVIEWS All proposers that comply with the RFP shall be contacted to schedule interviews by the Selection Committee. The Proposers will be evaluated by each of the members of the Selection Committee utilizing Form-1 . . . . The maximum score in this category is 115 points. RANKING Both the initial screening score and the interview score will be added, and the sum of both scores will determine the ranking of all proposers. The highest and lowest of the seven (7) total scores for each proposer will be dropped, and an average taken of the remaining five (5), to determine total score and ranking. Three (3) or more firms will be selected as eligible to bid on the project advertised. The Board shall have the right to make exceptions to this procedure when valid public emergency conditions warrant. INSTRUCTIONS FOR USE OF DADE COUNTY PUBLIC SCHOOLS DESIGN-BUILD SERVICES SELECTION-FORM 1 * * * INITIAL SCREENING (115 POINTS TOTAL) From the proposer's response to the RFP, staff will objectively evaluate the firm's abilities in accordance with those criteria listed below (Scores for each applicant will be based on comparison with all other applicants): * * * C. ARCHITECTURAL ENGINEERING DESIGN (30 POINTS): Submit General Services Administration Standard forms 254 (one for each discipline) and 255 (one for entire team), which best describes the proposed architectural/engineering design team. . . . * * * INTERVIEWS After the proposers have been evaluated based on their written applications, they will be invited to make a presentation to the Selection Committee on their approach to perform Design-Build projects for DCPS. . . . * * * The Submittal Requirements portion of the RFQ provided, in pertinent part, as follows: Note: Please refer to Pages 4-9 of the "Procedure[] for [] Selection of Design- Build Firms" attached hereto as Exhibit "C" of this RFQ, for additional information on the following items: * * * E. Architectural/Engineering design- Submit Forms 254 and 255 for A/E team members only. Identify the architect's experience in design-build, the A/E team's experience with DOE codes, MDCPS design criteria/standards, master specifications, educational specifications and furniture, fixtures and equipment. Describe the A/E team's design coordination and quality control systems. * * * P. State of Florida licenses (design and construction)- Provide current copy of State of Florida registration and licenses for proposer and all its professional consultants. * * * R. Contractors Pre-qualification Certificate- Provide current copy of MDCPS Contractor Pre-qualification Certificate. Proposers must have a valid certificate with a minimum of $17,473,890 single project capacity, in order to be considered. * * * The pre-proposal conference referenced in the RFQ was held on July 25, 2002. Attendees were given a written document which contained, among other things, the following questions (that had been submitted in advance of the conference) and answers (that had been given to these questions by "staff"): QUESTION Can an A/E firm presently under contract with the Board for a specific school project, join with the general contractor for the same school project and present a proposal. ANSWER No! The Board views this as a conflict of interest and will not consider such entities. QUESTION Can one firm submit two different proposals, one as a single prime firm and the other as part of a joint venture? ANSWER No! The legal advertisement is very specific to this issue and will only allow one submittal per applicant, either as a single prime firm or as part of a joint venture. QUESTION Can A/E firms presently under contract with the Board as term consultants participate in a design-build entity submitting a proposal? ANSWER Yes! Staff does not see any conflict with this situation. The Board, at their meeting of April 1994, has ruled that neither a direct nor an implied conflict exists. Question: Will there be a design evaluation at the time of bidding in determining the successful bidder? ANSWER No! The successful bidder will be determined based on the bid process. All bidders are to comply with the design criteria bidding documents. However, during the selection process, we will be evaluating the design approach to this project. Question: The RFP [sic] requires the applicant to be authorized to do business in the State of Florida as a design-build entity; however, when we called the State there is none available. What do we do? ANSWER You must comply with all State requirements including required registration and licenses (Design & Construction) in accordance with Florida law. It is your responsibility to comply. MCM was among those that submitted a qualification proposal in response to the RFQ (MCM's Qualification Proposal). MCM's Qualification Proposal was accompanied by a cover letter, dated August 1, 2002, from its President, Jorge Munilla, which read, in pertinent part, as follows: MCM is pleased to submit our qualifications to provide Miami Dade County Public Schools with Design-Build Service for State School MMM * * * MCM has substantial experience with the Design-Build process as it relates to constructing educational facilities. We have assembled a team of professionals that will deliver the quality and cost efficiency required by Miami Dade County Public Schools. The team includes: PJB Associates, who[] will provide architectural services; Bliss & Ny[i]tray, [who] will supply structural engineering requirements; Fortin, Leavy, Skiles, Inc., [who] will provide civil engineering services; LIVS [and] Associates,[7] [who] is providing mechanical, electrical, plumbing and fire protection consulting expertise; and the talented firm of Rosenberg Design Group, [who] will provide Landscape Architecture design. It is significant that our team members have all participated in Design- Build projects for Miami Dade County Public Schools and therefore are acquainted with the unique relationship which it necessitates. The MCM Design-Build team will deliver the cost effective construction, timely delivery, and quality design goals that are required by Miami-Dade County Public Schools. The information that follows this letter details precisely how the MCM team will satisfy these project objectives. * * * MCM's Qualification Proposal contained a Proposer's Profile, which provided, in pertinent part, as follows: TOTAL NUMBER OF YEARS IN BUSINESS MCM Corp. is confident that our team, if selected for this project, will execute the contract and deliver functionally effective facilities in concert with M-DCPS staff. The project team and our organization are structured in such a manner as to provide clear-cut lines of communication and accountability. . . . MCM Corp. has learned that a critical factor in the achievement of project goals is the selection of a project team that has the technical knowledge and experience to deliver. The following lists the principal occupation of each member of the design- build team, their occupational license number, and the number of years they have been engaged in that practice. Team Members License Years in Business MCM Corp. General Contractors CG C023834[8] 19 PJB Associates, P.A. Architects AA 0003085[9] 5 Fortin, Leavy, Skiles, Inc. Civil Engineering 3653 19 Bliss & Nyitray, Inc. Structural Engineering 674 39 LIVS Associates MEP EB 0004134[10] 17 Rosenberg Design Group Landscape LA 0000143 31 Also included in MCM's Qualification Proposal were Standard Forms (SFs) 254 (Architect and Related Services Questionnaires) for PJB Associates, P.A. (PJB); Fortin, Leavy, Skiles, Inc. (Fortin); Bliss & Nyitray, Inc. (Bliss); LIVS; and Rosenberg Design Group (Rosenberg); and an SF 255 (Architect and Related Services Questionnaire for Specific Project) completed by PJB as MCM's proposed Project Architect (or A/E of Record). Under the arrangements that had been made, if MCM were the successful bidder on the Instant Project, it would enter into an agreement for design services with PJB and PJB, in turn, would retain the services of Fortin, Bliss, LIVS, and Rosenberg (as sub-subcontractors/sub-subconsultants on the project, having no direct contractual relationship with MCM) to assist it in fulfilling its contractual obligations to MCM. The SF 254 for LIVS was filled out by Hector Vergara, the partner that is "in charge of all [the firm's] mechanical work, and it lists the Westview Project as an "example" of the projects the firm has done in the "[l]ast 5 [y]ears." According the form, the "[c]ost of [LIVS'] [w]ork" on the Westview Project was $6,800,000.00 and the "[c]ompletion [d]ate (. . . [e]stimated)" of such work was "2003." The SF 255 reflected that Fortin, Bliss, LIVS, and Rosenberg would be "consultants" to PJB on the Instant Project in the "[s]pecialit[ies] of "[c]ivil [e]ngineering," "[s]tructural engineering," "[m]echanical/[e]lectrical/ [p]lumbing/[f]ire [p]rotection," and [l]andscape [a]rchitect[ure]," respectively, and it contained "brief resumes" of "key persons" from these entities who would be working on the project. Among these "brief resumes" were those of Mr. Vergara and Arnold Leon of LIVS, which indicated that they both had done work on the Westview Project. Among the other documents that were part of MCM's Qualification Proposal were the "job descriptions" and "resumes" of MCM personnel who would be assigned to the Instant Project, including Fernando Munilla (a principal of MCM), Alexis Leal (MCM's Vice President of Purchasing), and Riccardo Salani (an Estimator-Scheduler with MCM). Fernando Munilla's, Mr. Leal's, and Mr. Salani's resumes each listed the Westview Project as one of the projects on which they had worked. This was not the first design-build project solicitation of the School Board's to which MCM had responded. It had, "several months before," submitted a qualification proposal in response to the School Board's Request for Qualifications for Design-Build Firms for State School "FF,"11 which contained the same General Requirements, including paragraph G., as the RFQ in the instant cases. As in the instant cases, PJB was MCM's proposed Project Architect (or A/E of Record) on the State School "FF" project. TLC Engineering (TLC) was the original proposed MEP (mechanical/electrical/ plumbing) sub-subcontractor/sub-subconsultant. After MCM had submitted its qualification proposal, however, MCM and PJB wanted to replace TLC with LIVS as the proposed MEP sub- subcontractor/sub-subconsultant. When School Board staff (Ms. Bazan, Carlos Hevia of Capital Construction, and Ivan Rodriguez of the Department of A/E Selection, Negotiations and Design Management) were asked whether such a substitution could be made, they indicated that it would be "no problem."12 MCM therefore assumed, when it submitted its Qualification Proposal in the instant cases, that its proposing LIVS as an MEP sub- subcontractor/sub-subconsultant would not result in MCM's disqualification from further consideration pursuant to paragraph G. of the General Requirements of the RFQ, notwithstanding that LIVS was the School Board's A/E of Record on the Westview Project and MCM was the "completion contractor" on that same project (the identical roles LIVS and MCM had had at the time MCM was competing for the State School "FF" design- build contract). Following the review and evaluation of the qualification proposals that had been submitted in response to the RFQ in the instant cases, the School Board posted an "official interview schedule," on which the competing "design- build firms'" "initial screening scores" were announced. These scores were as follows: 105.50 for SBR; 103.50 for James Pirtle Construction Company (Pirtle); 98.00 for Betancourt Castellon Associates, Inc. (Betancourt); 93.00 for MCM; and 77.50 for the Beck Group (Beck). This "official interview schedule" also contained the following "notes": NOTE 1: Each firm must bring all equipment necessary to conduct its presentation. NOTE 2: The initial scores shall be cumulative to the interview scores. The final ranking for each firm shall consist of the initial score plus the interview score. NOTE 3: The following firm has withdrawn from the interviews: The Haskell Company Prior the first scheduled interview, Beck withdrew its proposal, leaving only four proposers to compete for award of the contract for the Instant Project. The determination was thereafter made to "pre-qualify" for bidding all of the remaining proposers without conducting the scheduled interviews. The evidentiary record does not reveal that anyone protested this "pre-qualif[ication]" decision; however, neither does it reflect that the School Board gave notice of the opportunity any adversely affected persons13 had to file such a protest and of the consequences of their not taking advantage of such opportunity. Following this "pre-qualif[ication]" decision, the proposers were provided copies of the Criteria Documents (or design criteria package) that had been prepared for the Instant Project. Volume I of the Criteria Documents contained, among other things, an Instructions to Bidders, a List of Subcontractors Form, Special Provisions for Compliance with M/WBE, General Conditions of the Design-Build Contract, and General Requirements. The Instructions to Bidders provided, in pertinent part, as follows: INSTRUCTIONS TO BIDDERS * * * The Instructions to Bidders, General Conditions of the Design-Build Contract, Special Conditions for Design-Build Projects and all other documents and sections, listed in the Specifications under the Bidding Requirements, apply equally to each Section and Division of the Specifications. All sections of the Criteria Documents are complementary and are part of the contractual requirements. 2.7.1 Board reserves the right to waive informalities and irregularities in a proposal, to reject any bid that shows omissions, alterations or additions not called for in the Criteria Documents and to reject any bid containing conditions or unauthorized alternate bids. * * * 2.8.1 A bid may not be modified, withdrawn or canceled by the bidder during the stipulated time period following the time and date designated for the receipt of bids and the bidder so agrees in submitting the bid. * * * 3.2.2 When notified by Criteria Professional, prior to or after Award of Contract by Board, the successful bidder shall meet with representatives of Board at MDCPS/DCP/DB "Kick Off" meeting. At that time, the successful bidder shall bring the Design Build Team whose work is highly crucial to the completion of the Work. . . . The List of Subcontractors Form contained the following directions: This list of subcontractors shall be submitted to the Section of Contract Management, 155, N.E. 15th Street, Miami, Florida, 33132, no later than the end of the second working day after award, i.e., for bids awarded on Wednesday, list shall be submitted by 4:30 p.m. on Friday. If the list of subcontractors is not submitted as requested, the Board may initiate action which will result in rescinding the award. Subcontractor as used herein shall be defined in Florida Statute 713.01(16)- Subcontractor means a person other than a material supplier or laborer who enters into a contract with the contractor for the performance of any part of such contractor's contract. For each subcontract listed below, the bidder shall name the subcontractor or list the bidder's firm if he/she proposes to do the work. The cost of work as quoted by the subcontractor shall be listed. If the name of a subcontractor is deleted or added, the owner shall be notified immediately along with the justification for the change. The Special Provisions for Compliance with M/WBE provides, in pertinent part, as follows: Subcontractor/Subconsultant- A person other than material person or laborer who enters into a contract with a contractor for the performance of any part of such Design Builder's contract. Design or other required consultant services contracted for, in the performance of this contract will be considered as a Subcontractor. . . . The General Conditions of the Design-Build Contract provided, in pertinent part, as follows: General Conditions of the Design Build Contract * * * 1.1.2 The Contract The Contract represents the entire integrated agreement between the parties hereto and supercedes prior negotiations, representations or agreements, either oral or written. The Contract may be amended or modified only by a Modification. The contract shall not be construed to create a contractual relationship of any kind (1) between the Board and a Subcontractor or Sub-subcontractor, or (2) between any persons or entities other than the Board and the Design-Build Contractor. The Contract Documents include the Criteria Documents and the approved Construction Documents. * * * 3.1.1 The "Design-Build Contractor" is the person, firm or corporation authorized to do business in the State of Florida and properly licensed or registered for the work to be performed with whom the Contract has been made with the Board for the performance of the Work described in the Criteria Documents. "Contractor" refers to a third party Contractor. * * * 3.3.2 The Design-Build Contractor shall be responsible to the Board for acts and omissions of the Design-Build Contractor's employees, Subcontractors and their agents and employees and other persons performing portions of the Work under the Contract and shall be responsible to the Board for coordination and complete execution of the Work in accordance with the Contract. * * * 3.3.6 The Design-Build Contractor shall enforce strict discipline and good order among its employees and other persons carrying out the Contract including its Subcontractors and Sub-subcontractors. . . . * * * 3.9.2 During the Construction Phase, the Design-Build Contractor shall employ a competent, full time, on-site Superintendent, the Design-Build Contractor's A/E of Record Representative, who participated at least fifty percent (50%) of his/her time during the Design Phase, and shall be on site at a minimum of 50% of the working hours of each week. An M/E/P coordinator and necessary assistants shall be in attendance at the job site during the performance of the Work. . . . The Design-Build Contractor's A/E of Record on-site Representative shall not be used for checking shop drawings. The Superintendent, the Design-Build Contractor's A/E of Record Representative, M/E/P Coordinator and the major Subcontractor's Superintendents shall be fluent in English. * * * 3.12.1 Shop drawing are drawings, diagrams, schedules and other data specifically prepared for the Work by the Design-Build Contractor or a Subcontractor, Sub- Subcontractor, . . . to illustrate some portion of the Work. The Design-Build- Contractor, Subcontractor, Sub- Subcontractor, . . . shall not use the Design-Build Contractor's A/E of Record contract drawings as shop drawings, but the Design-Build Contractor shall require these entities to produce and submit such documents independently. * * * 3.18.1 The Design-Builder shall negotiate a fair and equitable agreement with each of the Architect/Engineer consultants listed in the Design-Builder's response to the request for qualifications for this project. The Design-Builder may choose additional A/E consultants, for which prior written notice to Board shall be given, but shall not terminate or replace those A/E consultants originally designated without the prior written approval of the Board. When requesting termination or replacement of A/E consultants, the Design-Builder must submit the following items: Letter requesting written Board approval of the action, stating clearly the reason for such request and the proposed replacement A/E consultant(s). Signed and sealed or notarized release from the A/E consultant(s) being replaced or justification acceptable to the Board that such release is not obtainable. Federal Standard Form 255 and 254 of the proposed A/E consultant(s). Site specific professional liability insurance incorporating the proposed A/E consultant(s) in the policy. A hold harmless clause signed and notarized . . . . * * * 4.1.1 The Board's Representative (also referred to as the "Design Criteria Professional" or "DCP") will provide administration of the Contract as described in the Criteria Documents . . . * * * 4.2.6 The DCP will review and approve or take other appropriate action upon Design- Build Contractor's submittals, previously approved by the Design-Build Contractor's A/E of Record such as Shop Drawings, Product Data and Samples, for conformance with the information given and the design concept expressed in the Criteria Documents. . . . * * * 4.2.12 The Design-Build Contractor and Design-Build Contractor's A/E of Record shall provide DCP which will confirm completeness and correctness of same and forward to Board for Board's review and records, the written documents required by the Contract to be provided such as Warranties, Operation and Maintenance Manuals, as-built drawings, releases of claim and other documents required of the Contract. The DCP will process any pending Change Order requests and evaluate the assessment of liquidated damages, if any. Upon its determination that the Design-Build Contractor and Contractor[']s A/E of Record has fulfilled the requirements of the Contract, the DCP will issue a final Certificate for Payment. * * * A Subcontractor is a person or entity other than a materialman or laborer who enters into a subcontract with the Design- Build Contractor for the performance of any part of the Design-Build Contractor[']s Work. The term "Subcontractor" is referred to throughout the Contract as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor (sometimes referred to as a "third party contractor" ) or subcontractors of a separate (third party) contractor. A Sub-subcontractor is a person or entity other than a materialman or laborer who enters in to a sub-subcontract with a subcontractor for the performance of any part of such subcontractor's contract. The term "Sub-Subcontractor" is referred to throughout the Contract as if singular in number and means a Sub-subcontractor or any authorized representative of the Sub- subcontractor. The term "Sub-subcontractor" does not include separate subcontractors of a third party contractor. All Subcontractor's shall be licensed and/or certified as required by the Florida Building Code and state statutes. Separate permits may be required including but not limited to electrical, plumbing, mechanical, and roofing work. * * * As stated in the Instructions to Bidders, the Design-Build Contractor shall furnish in its proposal to Board the list of Subcontractors, Sub-subcontractors and materialmen (including those who are to furnish materials or equipment fabricated to a special design) proposed for each principal portion of the Work . . . . If Board has a reasonable objection to any proposed Subcontractor, Sub- subcontractor or materialman, Board will promptly notify Design-Build Contractor. The Design-Build Contractor shall not contract with any proposed Subcontractor, Sub-subcontractor or materialman to whom Board has made a reasonable objection pursuant to Subparagraph 5.2.2. If Board has a reasonable objection to a Subcontractor, Sub-subcontractor or materialman, the Design-Build Contractor shall propose another to whom the Board has no reasonable objection. A Subcontractor, Sub-subcontractor or materialman may be added to the list of Subcontractors, Sub-subcontractor[s] or materialmen if required for performance of Change Order Work. A listed Subcontractor, Sub-subcontractor or materialman may be changed only upon written approval of the Board. The request to change shall state reasons for the request and shall be accompanied by a signed and notarized release from the listed Subcontractor or Contractor's Affidavit to Board that such a release is not obtainable. * * * The General Requirements include Procedural Requirements, Subsections 2.03 and 9.01 of which provide as follows: 2.03 DESIGN-BUILDER ("D-B") D-B shall appoint its D-B Project Manager which is D-B's representative for the Project. The collective management of D-B services, including D-B'[s] architect, engineers and other consultants, is to be vested in D-B Project Manager. D-B Project Manager is the representative of D-B and all communications are to be through him/her to DCP and M-DCPS Project Manager. D-B Project Manager's role does not preclude the involvement of D-B's architect, engineers and other consultants. The architects, engineers and other consultants with responsibility for different aspects of the Project are to attend appropriate meetings but this must be coordinated with D-B Project manager. 9.01 PRE-CONSTRUCTION CONFERENCE Prior to beginning construction, DCP (through PM) shall schedule a Pre- Construction Conference. Ten (10) days notice is required for the meeting. At minimum, the following parties shall attend: DCP Team (DCP) Design-Builder Team (D-B) PM Major Subcontractors Region Superintendent Principal BCC Representatives Testing Lab Consultant HVAC Test & Balance Consultant H. Others as applicable. * * * Section 01012 of the General Requirements discusses the Project Architect. It provides as follows: PROJECT ARCHITECT (Also referred as Architect/Engineer of Record or D-B'[s] A/E. The Project Architect (A/E of Record) is a Principal, Partner, Agent, Subcontractor or Employee of the Design-Builder,[14] and is the person lawfully licensed to practice Architecture and Engineering or an entity lawfully practicing Architecture and Engineering identified as such in the Contract; and is referred to throughout the Criteria Documents as is singular in number. The term Architect/Engineer of Record means the Architect/Engineer of Record or its authorized representative. Whenever the terms Design-Builder's A/E or A/E is used throughout the Criteria Documents, it refers to the Project Architect. DUTIES AND RESPONSIBILITIES OF THE PROJECT ARCHITECT The Project Architect shall have all the duties and responsibilities established under the applicable State Statutes regulating the professions of Architects and Engineers. The Project Architect shall employ a Project Manager and necessary assistants, and shall be responsible for managing all design and production of Design and Construction Documents and the coordination of its implementation during the construction. The Project Architect shall review and approve or take other appropriate action upon Subcontractor submittals, such as Shop Drawings, Product Data and Samples prior to their submittal to the DCP for approval. The Project Architect shall consult with the DCP concerning all items related to the design and production of the Construction Documents. The Project Architect shall be responsible for the preparation of the Record Drawings. Prior to Design-Builder's request for determination by DCP of substantial completion, the Project Architect shall determine, on his/her own, that the Project has achieved substantial completion. The Project Architect shall inspect the work and provide, through the Design-Builder, a punchlist of all items to be completed or corrected. Upon receipt of request for determination of substantial completion from the Design-Builder, the DCP shall proceed to determine if the work is ready for inspection as provided under the General Conditions. All four remaining proposers, MCM, SBR, Pirtle, and Betancourt, submitted sealed bids. The bids were opened on December 17, 2002, and subsequently tabulated. MCM had the lowest "base bid" ($17,673,600.00). SBR had the second lowest "base bid" ($18,037,446.00). Betancourt's and Pirtle's "base bids" were $18,269,000.00 and $19,540,000.00, respectively. Following the tabulation of bids, School Board staff recommended to the members of the School Board that the contract for the Instant Project be awarded to MCM as the lowest bidder. On February 6, 2003, SBR, through counsel, filed a notice of protest with the School Board, which read as follows: This firm represents SBR Joint Venture, who as you know, has submitted a proposal for construction of the above-referenced [p]roject [the Instant Project]. It has come to our attention that MCM Corp. ("MCM") who submitted a proposal to provide design build services for the above- referenced project, must be disqualified from further consideration in connection with an award of the Project due to MCM's failure to comply with general requirements as promulgated by the Miami-Dade County Public Schools relative to the Project. Specifically, item I G of the General Requirements mandates that: " Any proposer, firm or company desiring to participate in this process must not have as a part of its team an A/E firm presently under contract with the Board for a specific project and a General [c]ontractor for the same project." As disclosed by MCM in its proposal to construct the [p]roject, MCM is currently performing substantial work connection with another project known as the Westview Middle School-remodeling and renovation ("Westview"). The architect under contract with the School Board regarding the Westview Project is LIVS and Associates. In conflict with the qualification general requirements, MCM's proposal to construct school MMM contemplates the formation of a design build team which will include LIVS and Associates, as its mechanical, electrical, plumbing and fire protection consulting engineers. As such, the proposal by MCM is violative of the requirements of design/build firms in order to qualify for the Project. Back-up documentation including, but not limited to, material portions of the request for qualifications and disclosures by MCM are attached for your review. Under the circumstances, we respectfully request that MCM be disqualified from performing any services in connection with [p]roject and the second [lowest] bidder, which is SBR Joint Venture, be awarded the Project. MCM responded to SBR's notice of protest by letter dated February 10, 2003, in which it argued that SBR's protest was without merit and "should be dismissed" and further stated, among other things, the following: The Contract documents permit[] the board to waive all irregularities. If the board were to consider that Ivan Rodriguez, Carlos Hevia and Blanca Bazan[15] misspoke on behalf of MDCPS when they approved LIVS as part of the MCM Design Build team, and or if the board were to consider the inclusion of LIVS as part of the Design Build Team as a conflict, then if that be the case, by this letter MCM hesitantly tenders substitution of LIVS (who has graciously agreed), with SDM Consulting Engineers, Inc., who is also fully qualified, has had extensive experience with DCPS and has agreed to take on the challenge. The members of the School Board were scheduled to vote at their February 12, 2003, meeting on staff's recommendation to award the contract for the Instant Project to MCM, but the "item [was] tabled" because of the pendency of SBR's protest. At the meeting, the School Board Attorney told the School Board members that he had "reviewed [SBR's] protest with staff and [they had] come to the conclusion that [they did not] agree with [SBR's] position," explaining, in part, as follows: The language [of paragraph G. of the General Requirements of the RFQ] is interpreted that if you have the A/E and the general contractor, who are under contract with the board on the same project, that is considered a conflict. In this particular instance, you have a third element here. One, is that the bonding company took over this project and the bonding company brought MCM in as a subcontractor, if you will, a completing contractor here in this particular instance. So, it was never the intent of this language to cover a situation other than one where you had both the A/E and the general contractor under contract with the board. Construing the language of paragraph G. of the General Requirements of the RFQ (which is not clear and unambiguous on its face) as not "cover[ing] [the] situation" present in the instant cases is not at all unreasonable. Because it has a contract with the Surety and not the School Board, MCM is not the Westview Project's "General contractor"16 as that term is typically used in the construction industry.17 Since there is no language manifest in the proposal/bid solicitation documents in evidence which compels the conclusion that, for purposes of the solicitation, this accepted industry meaning of the term was not intended, it is entirely appropriate to rely on this meaning and find, as did School Board staff, that MCM's role in the Westview Project does not disqualify its proposal from consideration under paragraph of the General Requirements of the RFQ.18 Moreover, even if it could not be reasonably disputed that MCM was the Westview Project's "General contractor" within the meaning of paragraph G. of the General Requirements of the RFQ (which, as noted above, is not the case), MCM's proposed use of LIVS on the Instant Project would still not, under every reasonable interpretation of the paragraph, create a "conflict of interest" of the type the paragraph prohibits. It is not beyond reason, particularly when the provisions of the Criteria Documents are considered19 (most significantly, Subsection 3.18.1 of the General Conditions and Section 01012 of the General Requirements), to conclude that an "A/E firm" on the design- build "team," within the meaning of paragraph G., does not refer to an entity, like LIVS, that is neither the design-builder seeking the contract for the Instant Project, a member of such a design-builder (where it is joint venture or partnership), the design-builder's proposed "Project Architect" as described in Section 01012 of the Criteria Documents' General Requirements (who is also referred to therein as the "Architect/Engineer of Record" or "A/E"), nor any other Architect/Engineer consultant with whom the design-builder intends to contract in accordance with the requirements of Subsection 3.18.1 of the Criteria Documents' General Conditions, but rather is merely a proposed MEP sub-subcontractor/sub-subconsultant (that is, a third-tier contractor). The evident purpose of paragraph G. of the General Requirements of the RFQ is to avoid a situation where a firm acting as the School Board's A/E of Record on another School Board project let under the "traditional bid contract scenario" is inclined to deal with the "General contractor" on that project in a lax manner compromising the School Board interests because of a relationship the firm has with that "General contractor" on the Instant Project.20 The chance of this happening if the firm were merely a third or lower tier contractor on the Instant Project would be remote, so remote that it is reasonable to believe (as John Pennington, the School Board's Director for Construction Compliance, who was "intimately involved in making [the language in paragraph G.] the final language," credibly testified) that it was not the School Board's intent, in including paragraph G. in the General Requirements of the RFQ, to eliminate a potential competitor based on this possibility.21 Had the School Board intended otherwise, it could have made its intent clear and unmistakable by having the first sentence of paragraph G. read as follows: "Any proposer, firm or company desiring to participate in this process must not propose to have working on the instant project in any capacity, including as a third or lower tier contractor, both a firm that is presently serving under a contract with the Board as the Board's A/E of Record on another project and a firm that is a General contractor for that same project." It did not do so, however. Instead, it used language in paragraph G. reasonably susceptible to the interpretation that, under this provision, proposing to use as an MEP sub-subcontractor/sub- subconsultant on the Instant Project a firm that is the School Board's A/E of Record on another project does not disqualify a proposer even if the proposer is the "General contractor" for that other project. Following the School Board meeting, SBR, on February 16, 2003, filed its formal written protest of the intended decision to award the contract for the Instant Project to MCM. On February 18, 2003, Fernando Munilla sent a letter to School Board member Dr. Marta Perez, which read, in pertinent part, as follows: MCM has been informed that unfortunately MCM's response to SBR's bid protest was not provided to you prior to the February 12, 2003, Board meeting. We enclose same for your ready reference. We respectfully request you inquire on the particulars raised in our letter, and if you agree with your staff's recommendation (that SBR's alleged irregularity in MCM's bid lacks [sic] merit), then we ask you move the Board to exercise its right to waive the alleged irregularity, as permitted by the bid documents under section 00100 page 4 subsection 2.7.1 in order that MCM continue to work on the project. On March 4, 2003, the School Board Attorney sent a memorandum to the Superintendent of Schools advising that upon further review of the matter he had changed his opinion and was now of the view that SBR's protest had merit, explaining in the memorandum as follows: This specification [paragraph G. of the General Requirements of the RFQ] prohibits a proposer from having as a part of its Design-Build team an Architect/Engineer (A/E) firm who is under contract with the Board for a specific project and General Contractor for the same project. The specification provides that the Board considers this a conflict of interest and such proposals would not be considered for award of the contract. MCM submitted a proposal which has LIVS [and] Associates, an A/E firm under contract for the Westview Middle School project as part of its team. MCM is the General Contractor on the Westview Middle School project under a contract with the surety company to complete the project as the completing contractor. MCM contends that in view of the fact that they are the completing contractor and are not in direct contract with the Board for the project, this particular provision should not apply. We disagree. The particular specification in question does not specify or require that the general contractor for the same project be under contract with the Board. Conflict exists by virtue of the fact that the A/E, acting on behalf of the Board for the Westview Project, has to inspect and review the work of MCM and, with this proposal, will be in business with MCM on another Board project. Accordingly, MCM's proposal should not have been considered for award. While it is true that, in paragraph G. of the General Requirements of the RFQ, the School Board did not include the words "under contract with the Board" after "General contractor," if it intended that "General contractor," as used in paragraph G., have the same common meaning as the term has in the construction industry (and there is no language in the proposal/bid solicitation documents in evidence compelling the conclusion that it did not have such an intent), these additional words would have been redundant because, as noted above, a "General contractor," as that that term is typically used in the construction industry, is necessarily one who is "under contract" with the owner. Furthermore, contrary to the suggestion made by the School Board Attorney in his March 4, 2003, memorandum, under MCM's proposal, MCM and LIVS would not have a direct business relationship22; rather, LIVS would be doing business with PJB.23 While LIVS' participation (as a third-tier contractor) in the Instant Project with MCM may create a potential "conflict" for LIVS, this potential "conflict," at least arguably, is not the type that is prohibited by paragraph G. of the General Requirements of the RFQ. On March 11, 2003, MCM and PJB sent the following letter to the School Board: This letter will serve as our formal request to replace the engineering firm of LIVS originally selected for State School MMM [with] SDM Consulting Engineers in which MCM's architect of record, PJB Associates, P.A., had entered LIVS as their mechanical and electrical consultants for the above referenced project [the Instant Project]. Even though we consider LIVS to be an excellent engineering firm, d[ue] to an alleged conflict of interest that is said to exist, we are respectfully requesting replacement to prevent controversy.[24] We also request that you submit this to M- DCPS's Legal Department to verify if there is any conflict; and if so, we respectfully request a written reply. In the absence of a reply within the next three working days, we will assume that this issue has been resolved. Thank you in advance for your attention. Also on March 11, 2003, MCM, anticipating that it would not be awarded the contract for the Instant Project, sent the School Board another letter, which read as follows: This letter will serve as notice of the intent of Magnum Construction Management Corporation (MCM) to protest any decision of the Miami-Dade County School Board to reject all bids on the Miami-Coral Park Project. Based on information obtained to date, MCM will assert that the decision to reject all bids is based on the false assumption that under the terms of the Request for Qualifications, MCM was disqualified to bid on the Miami-Coral Park Project and that bids on the project were over budget. MCM will assert that it was qualified to bid on the project and that its bid was responsive and within the budget. MCM subsequently filed a formal written protest and an amended formal written protest. On March 12, 2003, the Design Criteria Professional for the Instant Project sent a letter to Ms. Bazan advising her that the three lowest bids submitted for the Instant Project "were within the budget of $17,473,891.36," and that the two lowest bids, those submitted by MCM and SBR, were "substantially below the State of Florida allowable cost per student station under the Smart Schools Clearinghouse." On March 26, 2003, the School Board referred SBR's and MCM's formal written protests to DOAH. A day later, it referred MCM's amended formal written protest to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order rejecting SBR's protest and awarding the contract for the Instant Project to MCM. DONE AND ENTERED this 1st day of August, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2003.
The Issue This is a bid protest proceeding arising from the School Board's notice that it intends to reject all bids. The Petitioner, one of the bidders on the subject project, asserts that rejection of all bids would be illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact 1. In their Joint Pre-Hearing Stipulation the parties stipulated to the following facts, which they agreed could be taken as established without the need for further proof.? School Board Policies and Approved Design-Build Evaluation Procedures 1. A true and correct copy of School Board Policy 3320 concerning "Purchasing Policies" is submitted as Joint Exhibit 1. School Board Policy 3320 was adopted by SBBC's [the School Board of Broward County] governing board in the exercise of its rule-making authority and was last revised on September 7, 1993. 2. A true and correct copy of School Board Policy 7009 concerning Award of Design-Build Contracts is submitted as Joint Exhibit 2. School Board Policy 7009 was adopted by SBBC's governing board in the exercise of its rule-making authority on January 17, 1995. 3. A copy of SBBC's typical Document 00100 "Instructions - Request for Proposal" is submitted as Joint Exhibit 3. Invitation to Bid No. 21-174T 4. On or about September 15, 2000, SBBC advertised Invitation to Bid No. 21-174T ("IM") entitled "Concession Building (Design-Build) for Coral Springs High School." A copy of the ITB is submitted as Joint Exhibit 4. 5. Invitation to Bid No. 21-174T was not submitted by district staff to SBBC's governing board for approval prior to its issuance to the public. 6. SBBC had an open contract with Williams Engineering. Joint Exhibit 33. Williams was authorized by an SBBC project manager to proceed under its open contract with schematic design, design development, construction documents, construction contract administration and warranty services under the open contract for "Project 1151-99-03" which had the Project Title "Track Drainage, Grading, Concession Building Water, Sewer & Walkways, Driveway Relocation; Campus Site Master plan." Said project was to occur at Coral Springs High School- Joint Exhibit 32. 7. %ITB No. 21-174T contained the design criteria package prepared by Williams Engineering. The design criteria package for the subject project was not submitted to or approved by SBBC's governing board prior to issuance of ITB No. 21-174T. 8. No request for proposals (RFP) was issued by SBBC to solicit competitive proposals from qualified design-build firms for the design criteria package for the subject project. Instead, SBBC issued an ITB containing the design criteria package. The SBBC did not revise the ITB by addendum to become a RFP at any time prior to the opening of bids for this procurement. 9. The SBBC's governing board never approved the criteria, procedures and standards for the evaluation of ITB No. 21- 1741. 10. ITB 21-1741 did not include provisions for award that would require the Superintendent of Schools to recommend to SBBC's governing board not less than three design-build firms as the most qualified for this procurement. 11. ITB 21-1741 did not include provisions for award under which SBBC's governing board would interview the three finalists for the project and to award a contract for the project to one or more of said firms. Addenda 1, 2 and 3 12. Three addenda were issued by SBBC regarding Bid 21-1741. Addendum No. 2 was labeled as "RFP 21-1741." Addendum No. 3 was issued on September 28, 2000 and changed the reference in Addendum No. 2 from "RFP 21-1741" to that of "Bid 21-1741" and changed the bid posting date to October 11, 2000 at 3:00 pm. Joint Exhibits 5, 6 and 7. Post-Submittal Activities. 13. Pursuant to the ITB, SBBC opened bids for Bid 21-1741 on October 10, 2000. Joint Exhibit 4 at Page 1. Responses to the ITB were submitted by Petitioner BT Builders, Inc.; C.G.R Construction Company, Incorporated; and R.L. LaRoche, Inc. Joint Exhibits 8, 9 and 10. 14. The bid proposal submitted by C.G.R Construction Company, Inc., at the bid opening consisted of a cost proposal and was not accompanied by any drawings or specifications. Drawings for the project were presented to SBBC by C.G.R Construction Company, Inc., during SBBC's Meeting of November 9, 2000. 15. On or about October 11, 2000, SBBC posted an intended recommendation under the ITB for award of a contract to Petitioner BT Builders, Inc. The posted recommendation also recommended rejection of the bid of C.G.R. Construction Company, Incorporated for a failure to submit a package comprised of documents (including drawings, specification materials, narratives and other materials) responding to the Design Criteria Package. Joint Exhibit 11. 16. At the time of the October. 11, 2000 posting, the proposals submitted under Bid 21-174T had not been submitted to SBBC's governing board for evaluation or to SBBC's Consultant's Review Committee ("CRC'). Any review of the proposals made at this point was conducted by staff within SBBC's Facilities Department. 17. On or about October 13, 2000, C.G.R. Construction Company, Incorporated notified SBBC that the procedures being followed in this procurement were not in compliance with Section 287.055(10), Florida Statutes. This notification was presented to SBBC by C.G.R. in a document that characterized itself as "a formal written protest." Joint Exhibit 12. 18. On or about October 16, 2000, SBBC’'s Purchasing Department notified the proposers that the Recommendation/Tabulation that had been posted on October 11, 2000 had been withdrawn. Proposers were notified that a new date for posting a recommendation would be November 10, 2000 at 3:00 pm. Joint Exhibit 14. A subsequent notice informed the proposers that the new date for posting a recommendation would be November 13, 2000 at 3:00 pm. Joint Exhibit 15. 19. On or about October 19, 2000, SBBC's Facilities and Construction Management Department ("the Department") notified proposers under Bid No. 21-174T that SBBC's Consultant's Review Committee ("CRC') would consider the proposals for short-listing on November 2, 2000 at 3:00 pm. Proposers were further notified that, if a firm was short-listed by the CRC, the firm would make a presentation to SBBC's governing board on November 9, 2000 and that SBBC's governing board would make the final selection of proposers at that meeting. Joint Exhibit 13. 20. On November 2, 2000, SBBC's Consultant's Review Committee ("CRC") met and short-listed the proposals submitted for Bid No. 21-1-74T. A binder of materials regarding the project was delivered to SBBC staff by C.G.R Construction Company, Inc. on November 2, 2000, but was not distributed by SBBC staff to the CRC. The CRC short-listed all three proposers for consideration by SBBC's governing board. 21. The Department notified the proposers that interviews of the short-listed proposers would be conducted by its governing board on November 9, 2000. Each proposer was able to be present for each of the presentations made before SBBC's governing board. Joint Exhibit 16. 22. At a public meeting conducted on November 9, 2000, the governing body of SBBC considered the proposals submitted in response to Bid No. 21-174T and selected C.G.R. Construction Co., Inc., for award of a design-build contract. Joint Exhibits 17, 18 and 19. 23. On November 13, 2000, SBBC posted an intended recommendation under the ITB for award of a contract to C.G.R. Construction Co., Inc. Joint Exhibit 20. 24. On November 13, 2000, Petitioner BT Builders, Inc., filed with SBBC's Purchasing Department a notice of intent to protest regarding the proposed award of a contract to C.G.R. Construction Co., Inc., under Bid No. 21-174T. Joint Exhibit 21. 25. On or about November 20, 2000, Petitioner BT Builders, Inc., filed with SBBC's Purchasing Department its formal written protest of the proposed award of a contract to C.G.R. Construction Co., Inc., under Bid No. 21-174T. Joint Exhibit 22. 26. On December 4, 2000, a Committee designated by SBBC conducted a meeting with the Petitioner BT Builders, Inc. in order to provide an opportunity to resolve the protest by mutual agreement in accordance with Section 120.57(3) (d), Florida Statutes and School Board Policy 3320. During this meeting, it was argued by SBBC's staff that the terms and conditions of Bid No. 21-174T were not in material compliance with the procedures described in Section 287.055(10), Florida Statutes, and Rule 4.1(7) of the State Regulations for Educational Facilities ("SREF") or with School Board Policy 7009 ("Awarding of Design-Build Contracts"). The Committee voted that the recommendation to award a contract to C.G.R. Construction Co., Inc., should be rescinded and that a new recommendation should be posted for the rejection of all bids. Joint Exhibit 23. 27. On or about December 12, 2000, SBBC posted a Revised Recommendation/Tabulation that "the award to C.G.R. Construction be rescinded, and that all bids received be rejected, in accordance with School Board policy and procedures." Joint Exhibit 28. 28. SBBC notified BT Builders, Inc., that the school district considered the formal written pretest filed on or about November 20, 2000 to have been rendered moot by the Revised Recommendation/Tabulation which rescinded the former intended action and stated that a recommendation for rejection of all bids would be made. Joint Exhibit 24. 29. On December 15, 2000, BT Builders, Inc. filed with SBBC's Purchasing Department its notice of intent to protest regarding the proposed rejection of all bids. BT Builders also continued to protest the prior recommendation to award to C.G.R. Construction Co., Inc. Joint Exhibit 29. 30. On January 2, 2001, BT Builders, Inc. filed with SBBC's Purchasing Department its formal written protest regarding the proposed rejection of all bids. The formal written protest also continued to protest the earlier recommendation to award to C.G.R. Construction, Co., Inc. Joint Exhibit 30. Due to the closure of the school system for winter holiday recess, the filing of the formal written protest on January 2, 2001, was timely and occurred on the first business day following winter holiday recess. 31. SBBC scheduled a meeting with BT Builders, Inc., for January 12, 2001 to provide an opportunity to resolve the protest by mutual agreement in accordance with School Board Policy 3320 and Section 120.57(3) (d), Florida Statutes. That meeting was cancelled upon notification from BT Builders' attorneys that the protest was withdrawn. BT Builders subsequently informed SBBC that their attorneys had not been authorized to withdraw the protest or cancel the meeting. A new meeting date was then scheduled by SBBC. 32. On January 17, 2001, SBBC conducted the rescheduled meeting with Petitioner BT Builders, Inc. in order to provide an opportunity to resolve the protest by mutual agreement in accordance with Section 120.57(3) (d), Florida Statutes, and School Board Policy 3320. During this meeting, the parties were unable to resolve the protest by mutual agreement. Joint Exhibit 31. 33. On January 22, 2001, BT Builders, Inc. requested the referral of its formal written protest to the Florida Division of Administrative Hearings. 34. SBBC is proceeding to build the improvements that were the subject of this procurement through the use of its own personnel instead of seeking construction services from an outside vendor.
Conclusions For Petitioner: Thomas J. Ricci, Vice-President BT Builders, Inc. 1773 Blount Road, Suite No. 303 Pompano Beach, Florida 33069 For Respondent: Robert Paul Vignola, Esquire Broward County School Board K.C. Wright Administrative Building 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board issue a final order in this case dismissing the petition and denying all relief requested by the Petitioner. 18 DONE AND ENTERED this 24 “aay of June, 2001, in Tallahassee, Leon County, Florida. co yy Lllidtt ; Sue MICHAEL M. PARRISH 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 2 q day of June, 2001.
The Issue The issue is whether Petitioner is entitled to an award of attorney's fees and costs under Section 57.111, Florida Statutes, as a prevailing small business party in DOAH Case No. 02-2230BID.
Findings Of Fact Based upon the pleadings, affidavits, stipulations, and the matters officially recognized, the following findings are made: Parties Petitioner is an engineering firm whose principal office is located in Tampa, Florida. Petitioner is certified as a minority-owned business by the State of Florida and the School Board. Petitioner’s majority owner and president is an African-American male. At all times material hereto, Petitioner had less than 25 full- time employees or a net worth less than $2 million. Respondent is a local school district of the State of Florida. Respondent is responsible for the construction, renovation, management, and operation of the public schools in Hillsborough County. To fulfill those responsibilities, Respondent is often required to obtain the services of architects, engineers, and other professionals through competitive procurement under Section 287.055, Florida Statutes, the Consultants’ Competitive Negotiation Act (CCNA). DOAH Case No. 02-2230BID On May 21, 2002, the School Board published a notice in the Tampa Tribune announcing its need for professional architectural and/or engineering services to supplement its in- house staff of architects and inspectors in order to provide increased on-site supervision, management, and inspection on ongoing school construction projects. The notice is a request for qualifications (RFQ), and is subject to the provisions of the CCNA. A report prepared by the Ernst & Young consulting firm based upon its “forensic evaluation and analysis of the District’s construction and maintenance policies, practices, and procedures” had recommended augmenting the District’s staff in the manner described in the RFQ. At the time the RFQ was advertised, the only adopted policy governing the School Board's acquisition of professional services was Section 7.14 of the Hillsborough County School Board Policy Manual (Policy Manaual). Section 7.14 did not specifically reference the CCNA and simply included a general authorization for the Superintendent of the District or his or her designee to “contract for professional or educational services to complete projects or activities authorized or approved by the school board.” The only other description of Respondent’s procurement process under the CCNA in existence at the time the RFQ was advertised was a document entitled "Capital Projects Standard Procedures" which was presented to but never adopted by the School Board. That document references the CCNA in connection with the selection of architects and construction managers, but not engineers, and it only provided a general outline of the selection process. The RFQ did not specifically reference or otherwise incorporate Section 7.14 of the Policy Manual or the “Capital Projects Standard Procedures” document, nor did the RFQ explain the criteria or factors upon which the responses to the RFQ would be evaluated or the weight that would be given to each factor. The RFQ did not specifically inform potential Respondents of their right to file a protest challenging the specifications, nor did it include the language provided in Section 120.57(3)(a), Florida Statutes. Petitioner timely filed a notice of protest and formal written protest challenging the specifications in the RFQ pursuant to Section 120.57(3)(b), Florida Statutes. Among other things, Petitioner challenged the absence of evaluation criteria in the RFQ and the absence of a formally-adopted policy governing the procurement process. Petitioner’s protest was referred to the Division, where it was assigned DOAH Case No. 02-2230BID. A formal administrative hearing was held on the protest, and on September 6, 2002, a Recommended Order was issued in DOAH Case No. 02-2230BID (hereafter “Specification Protest Recommended Order”). The Specification Protest Recommended Order agreed with Petitioner that the specifications in the RFQ were deficient and, more specifically, concluded that: the School Board's current selection process is deficient because neither the RFQ or the School Board's existing policies and procedures specify in advance the factors upon which the responses will be evaluated nor do they identify the weight which the School Board will give to each criteria. The process is also deficient because the selection committee members do not utilize a uniform method of evaluating the respondents. These deficiencies affect the integrity of the School Board's selection process and subvert the policies underlying Section 287.055 and competitive procurement generally. Accordingly, Petitioner met its burden of showing that the RFQ specifications are arbitrary and contrary to competition. Specification Protest Recommended Order, at 36 (paragraph 85) (emphasis in original). That conclusion was consistent with the report prepared by Ernst & Young, the following excerpts from which are pertinent here: [W]e have identified significant shortcomings related to ranking the professional service providers that have submitted bids for either architectural design, engineering, or construction management services. * * * [T]he architects and construction managers within the [architectural/ engineering/construction (A/E/C)] community do not understand how vendors are evaluated or ultimately rank ordered [sic] by the District to arrive at a list of the three highest ranked respondents. As a matter of fact, the District has moved away from using a score sheet or "score card" with pre-established evaluation criteria and a weighted point structure, and toward a rather subjective process whereby a selection committee simply appoints professional service providers either based upon past performance on a similar type of project (i.e. replicate design) or based upon the District's desire to equitably distribute work amongst the A/E/C community. This type of evaluation and selection process, as currently utilized by the District, while effective at distributing work amongst the A/E/C community, does not ensure that the best or most qualified vendor will be selected for each of the proposed school district projects. The current vendor selection process could permit abuse and favoritism as the selection committee could be influenced by School Board input, personal relationship [sic] and lack of objective criteria. Although we found no evidence of undue influence, the subjective nature of the process offers the District little credibility. * * * E&Y [Ernst & Young] found that the vendor selection process being utilized by [the District] lacks credibility in that it remains highly subjective as new projects are allocated without respect to numerical analysis of prior performance, company financial condition, proposed project management team, etc. Moreover, the selection committees do not rotate sufficiently to eliminate the possible influence from senior [District] Administrators or Board Members. * * * Upon comparison to each of the peer and contiguous school districts, Ernst & Young found that only [the District] engages in a vendor selection process in the absence of pre-established or pre-determined evaluation criteria and a numerically-based scoring system which permits a numerical ranking of each interested professional service provider. E&Y found that the vendor selection process being utilized by [the District] lacks credibility in that it remains highly subjective as new projects are allocated without respect to numerical analysis of proper performance, company financial condition, proposed project management team, etc. . . . * * * The District's vendor selection process can be more objective and better understood within the A/E/C community by developing standard evaluation criteria and a numerically-based scoring system. Such a system will permit the District to numerically rank each interested professional service provider and thus eliminate bias and potential favoritism of the [District] selection committee. Evaluation criteria should include, among other things, prior performance, company financial condition, proposed project management team, etc. . . . E&Y Report, at 27-29, 107, 117. The Ernst & Young report was formally transmitted to the School Board on May 17, 2002, which is four days prior to the date that the RFQ was published in the Tampa Tribune. The Specification Protest Recommended Order and the Ernst & Young report were not critical of all aspects of Respondent’s procurement process. Both concluded that the procedural elements of the evaluation process utilized by the School Board were consistent with the procedural requirements in the CCNA. Specifically, the Ernst & Young report stated “[o]ur review of [the District’s] vendor’s [sic] selection process indicates in many respects, that the process follows traditional requirements established by SREF [State Requirements for Educational Facilities] and Florida Statute[s] . . . [and], in many instances, the procedures mirror those utilized by peer and contiguous school districts” (E&Y Report, at 27), and the Specification Protest Recommended Order similarly concluded that: the School Board's current selection process, although not detailed in a formally-adopted rule or policy, is consistent with the procedural requirements of the CCNA. The only material difference is that the School Board has consolidated the second and third steps in the process -- i.e., qualification and competitive selection -- by interviewing every respondent and not just three pre-qualified firms as required by Section 287.055(4)(a). Accordingly, Petitioner failed to show that specifications of the RFQ are contrary to the School Board's governing statutes (i.e., Section 287.055) or its rules or policies. Specification Protest Recommended Order, at 35-36 (paragraph 84). Nevertheless, based upon the deficiencies in the RFQ described above, the Specification Protest Recommended Order recommended that: the School Board issue a final order that rescinds the request for qualifications published May 21, 2002, and reformulates the specifications of the request in a manner that, at a minimum, advises potential respondents in advance of the factors upon which the responses will be evaluated and the weight that will be uniformly given to each factor by the selection committee. Id. at 37. The School Board adopted the Specification Protest Recommended Order at its meeting on October 1, 2002, and consistent with the recommendation therein it rescinded the RFQ. DOAH Case No. 02-3138RP In response to the Ernst & Young report and Petitioner’s challenge to the RFQ specifications (and while DOAH Case No. 02-2230BID was pending), the School Board initiated the rulemaking process under Chapter 120, Florida Statutes, to adopt new policies and summaries of procedures to govern the acquisition of professional services pursuant to the CCNA. Petitioner timely challenged the proposed new policies and summaries of procedure pursuant to Section 120.56(2), Florida Statutes. The challenge was assigned DOAH Case No. 02- 3138RP. A formal administrative hearing was held, and on October 11, 2002, a Final Order was issued in DOAH Case No. 02-3138RP (hereafter “Rule Challenge Final Order”). The Rule Challenge Final Order dismissed Petitioner’s challenge to all of the proposed new policies and summaries of procedures except for that portion of proposed Section 7.31 of the Policy Manual which provided that interviews are optional for projects costing less than $1 million. The procedural aspects of the new policies and summaries of procedure are essentially the same as the practice followed by the School Board in the past pursuant to Section 7.14 of the Policy Manual and the unadopted “Capital Project Standard Procedures” document. However, the new policies and summaries of procedure addressed the deficiencies in the substantive elements of the School Board’s procurement process. In this regard, the Rule Challenge Final Order included the following observation: [T]he Proposed Rules address the fundamental deficiencies in the School Board's procurement process that were identified in the Ernst & Young report and the Recommended Order in DOAH Case No. 02-2230BID. The Proposed Rules require the factors/criteria upon which the applicants will be evaluated and the weights [sic] that will be given to each factor to be formulated and provided to the applicants in advance of each solicitation, and they require uniformity in the evaluation and scoring of the applicants by the Committee. The Proposed Rules also provide the necessary framework for the preparation of the project-specific forms and materials which will be prepared in connection with each RFQ/RFP, and they provide a discernable standards against which to judge those materials in the event of a Section 120.57(3) protest of the specifications of the RFQ/RFP or the award of the contract arising therefrom. Rule Challenge Final Order, at 57-58 (paragraph 145). The Rule Challenge Final Order was not appealed. Attorney’s Fees and Costs Incurred by Petitioner Petitioner was represented in DOAH Case No. 02-2230BID by attorney George Kickliter. Mr. Kickliter spent 25 hours on Petitioner’s behalf in DOAH Case No. 02-2230BID, and he charged Petitioner a fee of $200.00 per hour. Accordingly, Petitioner incurred a total of $5,000.00 in attorney’s fees in DOAH Case No. 02-2230BID. Petitioner incurred costs in the amount of $563.00 in DOAH Case No. 02-2230BID. That amount is attributable to the cost of the Transcript of the final hearing in that proceeding. Respondent stipulated that the attorney’s fees and costs incurred by Petitioner in DOAH Case No. 02-2230BID were reasonable.
Findings Of Fact At all times pertinent to the allegations contained in the Notice of Charges, Williams was employed by the School Board in a variety of capacities. With the exception of paragraph 22, which, to preserve continuity, will be consolidated with paragraph 2 of the Notice of Charges, the allegations shall be considered seriatum. That during the 1965-1966 school year, the Respondent did receive an overall unsatisfactory rating. That the Respondent in the 1965 and 1966 school years received a poor rat- ing in the following area: "Relation- ship with others," and "Is healthy and emotionally stable;" and further received an unsatisfactory rating in the category of "works well with others," end "demon- strates professional attitude and imple- menting school policy." The evidence indicates that for the school year 1965-1966, Williams received an average score of 3.3 on his Dade County evaluation form. According to the form an average rating below 3.5 indicates unsatisfactory work in Dade County schools. On that same evaluation form Williams received a 3.0 rating for the category "Works well with others." There was no rating for "Is healthy and emotionally stable." Williams received a 2.8 rating for the category "Understands and supports school policies aid demonstrates a professional attitude in implementing them." From the 1965-1966 school year until the present Williams has consistently received satisfactory overall ratings for his work in the Dade County schools. That on or about January 16, 1968, the Respondent, while a visiting teacher with the School Board of Dade County, and more particularly assigned to Gladeview Ele- mentary School, the Respondent, did without reason or authority demanded [sic] of the principal, Mr. Leonard Wollman, his reason for having a child stand outside and perform a task signed by the principal. Said demand made by the Respondent was made in a loud, rude and unprofessional manner, and was over- heard by numerous persons located within the confines of the school. On or about January 16, 1968, Mr. Leonard Wollman was principal of Gladeview Elementary School and at that time observed a student throw an apple out a school window. When the student refused to pick up the apple, Mr. Wollman made the student pick it up along with other trash. At that time, Williams criticized the handling of the incident by Wollman and claimed that the child was being mistreated. There was a lack of competent substantial evidence to establish that Williams' inquiries as to the handling of the incident were made in a loud, rude and unprofessional manner. There was a complete absence of evidence to establish that Williams' comments were overheard by numerous persons located within the confines of the school. That during the 1969-1970 school year, the Respondent, Charles Williams, did receive an unsatisfactory evaluation in the area of personal characteristics and leadership, notwithstanding an overall average of 4.2. The Dade County evaluation form for school year 1969-1970 reflects that Williams received a score of 3.0 in each of two categories of personal characteristics and leadership. The remarks section indicates "Needs improvement in human relations and group processes, which hopefully he will develop within the year. Otherwise, performance this year has been outstanding." That during the year 1970, more particularly, during the month of October, 1970, the Respondent was required by the Director of the North Central District to submit to the district office a plan for gifted children to participate in a program as outlined by the District Office. Further, as a result of the Respondent's failure to comply with the directive of the District Office two deserving children from the Respondent's school were left out of the program. There is no evidence in the record to establish that Williams was required to submit a plan for gifted children. There was evidence to establish that Williams was required to submit the names of students in his school who qualified for the gifted child program by October 30, 1970, and that such names were submitted late. Notwithstanding the late submission, the names were still considered for the gifted child program. Furthermore, there is an absence of competent substantial evidence to establish that at deserving children were left out of the program because of the actions of Williams. In the final analysis, Williams is charged with failing to submit a plan when the evidence shows that he was not required to submit a plan. Accordingly, the charge is not supported by the evidence. That on or about November 23, 1970, the Respondent did berate and make sarcastic and provocative remarks to Mrs. Carol Kleinfeld because said teacher had sought a transfer from the school where the Respondent served as principal. On Motion of Williams at the hearing, the undersigned ruled that there was a complete absence of evidence to support this charge. That on or about March 1, 1971, the Respondent did berate Mrs. Carol Kleinfeld who [was a] teacher at the school where the Respondent is principal and further did scream and shout at [her] in a violent and threatening manner further threatening that he would fire all parties concerned. During the 1970-1971 school year, Carol Kleinfeld worked for Williams at Primary C Elementary School. From time to time, Williams and Mrs. Kleinfeld engaged in discussions concerning Mrs. Kleinfeld's performance of her duties. The evidence establishes that Williams was displeased with the performance and gave Mrs. Kleinfeld the lowest possible performance rating. The evidence also establishes that Williams pointed his finger at Ms. Kleinfeld on one or more occasions. However, there is an absence of competent substantial evidence to establish that Williams berated Ms. Kleinfeld or that he screamed and shouted at her in a violent and threatening manner. That during the 1970-1971 school year, the Respondent acted in such an unprofes- sional fashion towards teachers assigned to his school, that numerous teachers requested transfers to other schools as a result of the humiliating and threaten- ing attitudes of the Respondent. There was no competent substantial evidence to establish that Williams acted in an unprofessional manner toward his teachers or that numerous teachers requested transfers because of Williams' conduct. That on or about April 4, 1975, the Respondent did, in front of children and custodians, harass, threaten and berate one Franklin Clark, Coordinator of Primary C Elementary School, con- cerning an event which did not happen. On April 4, 1975, Franklin Clark was Community School Coordinator for Primary C Elementary School. Clark's working hours were from 2:00 to 10:00 P.M. On several occasions, prior to that date, Clark had taken extended supper without informing Williams. When Williams discovered this practice, he had occasion to correct Clark and reiterate the requirement that Clark be present at the School for the appropriate period of time. On the day in question, Williams confronted Clark with an accusation that Clark had not been present during his proper working hours the night before. Clark denied the accusation. While Williams was angry during that conversation, there was no evidence to establish that he harassed, threatened or berated Clark during the encounter. That during the year 1975, the Respondent did fail to cooperate with other school principals, more particularly Ms. Della A. Zaher, principal at Edison Park Elementary School, in that he failed to cooperate with a fellow school principal in establishing and coordinating the articulation plans for the second and third grade students. While the evidence shows that Williams did not in fact work with Ms. Zaher in establishing articulation plans for second and third grade students, the record is devoid of any evidence which would establish that Williams was required to do so. In fact, inter school cooperation was necessary only as desired by participating principals. The evidence does establish that Williams followed prescribed procedure for articulation plans and that there would have been no real benefit in deeling with Ms. Zeher as she had requested. That on or about November 19, 1976, the Respondent did leave a meeting early without authorization which meeting was for the purpose of the area superintendent to explain the alternative plans for attendance. The evidence establishes that on November 19, 1976, Williams attended a meeting of principals, directors, and area office personnel, called by the area superintendent. Williams left the meeting early. However, the evidence affirmatively establishes that no permission was required for any of the participants of the meeting to leave early. That during the month of November, 1976, the Respondent did fail to observe and follow the purposes outlined by Robert Little Supervisor of the attendance office, in his memorandum entitled, "Pro- cedures and Calendar for the Development of the 1977-78 Attendant Zone Changes," dated November 4, 1976. That by failing to follow the plan as outlined by the memorandum, the Respondent's actions created the potential for negative parent/community reaction. That the Respondent did not provide a written plan to the area office for con- sideration until February 8, 1977, and said report was scheduled to be rendered to the area office and the area superintendent on November 19, 1976. All other principals met this deadline. The evidence affirmatively establishes that the memorandum in question did not require Williams to do anything. The alternatives available in the memorandum were optional on the part of principals. On Motion of Williams, the Hearing Officer declared that there was insufficient evidence to establish the allegations of the foregoing charges. That on or about July 11, 1977, the respondent failed to be a witness for the School Board of Dade County which involved the suspension of an employee who was under the direction and control of the Respondent while he was principal at the Primary C Elementary School [sic]. That his refusal to be a witness was without foundation and further, was his duty and responsibility as an employee of the School Board of Dade County. On July 11, 1977, Williams was called to a conference regarding a hearing that was to be held that afternoon, involving another employee of the School Board. Williams went to the conference and became upset because he believed certain questions propounded to him were improper. Williams, however, was neither requested nor directed to be a witness at the hearing to be held later that day. No subpoena was issued to compel Williams' attendance at that hearing. That during the 1978-1979 school year, numerous teachers at the Primary C Elementary School, where the Respondent was assigned as principal, have sought reassignment because of the open criticism and un- warranted harassment by the Respondent. This charge is not substantiated by competent substantial evidence. While the evidence does indicate that Williams had a small number of disagreements with one or two teachers during that school year, the evidence further establishes that the overwhelming majority of the teachers at that school during that school year hold Williams in high regard. There is am absence of evidence to establish that numerous teachers sought reassignment. That on or about November 8, 1978, a principal's meeting was held for the purpose of assisting administrator's review procedures used to remediate professional personnel where performance is deficient and at said meeting, the Respondent acted in a negative and disruptive manner, so as to make the meeting ineffective for all persons concerned. This charge is unsupported by the evidence. The evidence does establish that at the meeting in question, Williams fully participated and asked pertinent, incisive questions of those conducting the meeting. That on or about January 9, 1979, the area superintendant [sic] attempted to have a conference with the Respondent con- cerning specific recommendations for improvement, and at said conference the Respondent was insubordinate, disruptive, hostile and negative toward the area superintendant [sic], in such a manner as to make the meeting an ineffective one, and thus the meeting had to be terminated because of the behavior of the Respondent. At the hearing in this cause, there was made available a complete transcript of the conference held on January 9, 1979, with Williams and the area superintendent. The document, received as Respondent's Exhibit "Y", demonstrates that Williams was neither insubordinate, disruptive, hostile or negative. In fact, the area superintendant terminated the meeting after ascertaining that Williams had no further questions regarding the recommendations for improvement which were given to Williams at the meeting. That in the school year 1969-1970 it was further noted that the Respondent needed improvement in "Human relations" and "Group processes." (As amended at the hearing in this cause.) The Dade County evaluation form for school year 1969-1970 reflects that Williams received an overall score of 4.2 for that school year. This constitutes a satisfactory rating in the Dade County School System. The remarks section says "Needs improvement in human relations and group processes which hopefully he will develop within the year. Otherwise his performance this year has been outstanding." 25. Evaluations for school years 1970-1971, 1971-1972, 1972-1973, 1973- 1974, 1974-1975, 1975-1976, 1976-1977 and 1977-1978, all show satisfactory performance ratings in the areas in question. Furthermore, these ratings reflect that while Williams is not a perfect individual, he is an outstanding educator who has made continued significant contributions to the Dade County School System and to the students under his care.
