The Issue Whether a final order dismissing the Petitioner's rule challenge should be entered because Respondent, United Safety Council, Inc., doing business as Florida Safety Council (United Safety Council), is not an "agency" within the Florida Administrative Procedures Act (APA), and there is no claim challenging a rule enacted by Respondent, Department of Highway Safety and Motor Vehicles (Department). HOLDINGS United Safety Council is not an “agency” within the definition of section 120.52(1), Florida Statutes (2010); thus Project Refocus' rule challenge against United Safety Council is not subject to the APA. Consequently, United Safety Council's Motion for Summary Final Order is Granted. Project Refocus' petition in the instant case does not challenge a Department rule or action, and the Department was never added or served as a party. Therefore, the Department's motion to remove it as a party is Granted.
Findings Of Fact The Petitioner is Barbara Clark and Company, a CPA firm. Barbara Clark owns and operates the company. The Respondent issued a Request for Proposal, RFP Number 7112, for CPA audit services. The Petitioner responded to the RFP along with four other proposers. The award for RFP Number 7112, CPA audit services, was to be made to the two (2) companies who received the highest number of points based on individual evaluations by four (4) people selected for the RFP review committee. The evaluation criteria to be used by the review committee members was specified in Section 1.16 of the RFP and involved review of the management and technical aspects of a given proposal. The committee members for the RFP were instructed by the FAMU Purchasing Director to use the criteria as outlined in Section 1.16 in the process of evaluating the management and technical plans of the respective proposals and that each member should evaluate and score each proposal independent from the other committee members. The evaluations by each member were placed in a sealed envelope. The proposals submitted in response to RFP Number 7112, CPA audit services, were reviewed by the evaluation committee members. After the members completed their review, they met as a group with the Purchasing Director. The sealed envelopes which contained the individual committee members' evaluation sheets for each proposal were opened and the points for each proposer were determined by adding the points for each respective proposal. The evaluation of RFP Number 7112, CPA audit services, occurred pursuant to the evaluation criteria in RFP Number 7112, CPA audit services. No committee member testified. There was absolutely no evidence submitted by Petitioner which demonstrated that the committee members did not follow the specifications of the RFP. Likewise, there was a lack of evidence that the evaluation process established in the RFP was arbitrary or capricious. The two (2) proposers that received the highest number of points were recommended for the award of RFP Number 7112, CPA audit services. Petitioner's proposal was not evaluated as having either of the highest point totals for RFP Number 7112, CPA audit services and therefore did not receive an award of the contract. The FAMU Purchasing Director, Oscar Martinez, sent to each proposer by certified letter, return receipt, notification of the intended award of RFP Number 7112, CPA audit services, to the two proposers with the highest number of points. The FAMU Purchasing Director, Oscar Martinez, discussed the results of RFP Number 7112, CPA audit services, with Barbara Clark after he mailed the intended award notification to the proposers. A mathematical error in the calculation of points for one of the proposers was discovered and corrected. The error had no effect on the rankings of the proposers and was therefore an immaterial discrepancy in the award of the RFP. Petitioner utterly failed to establish that the intended award pursuant to RFP Number 7112, CPA audit services, was not in good faith and not the result of a fair, full and honest exercise of the agency's discretion in making such an award. Likewise Petitioner utterly failed to establish that Respondent acted arbitrarily or capriciously in its intended award of RFP Number 7112, CPA audit services. After a review of the evidence Petitioner's protest of the intended award of RFP Number 7112, CPA audit services, was clearly without merit and lacked factual or legal support and was therefore frivolous and improper. Indeed the barest attempt was made by Petitioner to prepare or pursue evidence for the hearing in this matter. Although Respondent consulted with Petitioner and provided Petitioner information regarding RFP Number 7112, CPA audit services, Petitioner persisted in pursuing its protest of the intended award of the RFP. Petitioner continued its protest of RFP Number 7112, CPA audit services, long after it was or should have been aware that it had no factual or legal grounds for such a protest causing Respondent's attorney to spend 13 hours in preparation for this case. However, Respondent did not submit an affidavit from another attorney who reviewed the file and number of hours spent by Respondent's attorney and attested to the reasonableness of the hours spent or the fee charged. Therefore, Respondent's motion for attorney's fees is denied.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the protest be dismissed. DONE and ENTERED this 29th day of May, 1996, in Tallahassee, Leon County, Florida. DIANNE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1996. APPENDIX CASE NO. 96-1371 1. The facts contained in paragraphs 1-28 of Respondent's proposed findings of fact are adopted, in substance, in so far as material. COPIES FURNISHED: George W. Butler, Esquire Florida Agricultural and Mechanical University Office of the General Counsel 300 Lee Hall Tallahassee, Florida 32307 Barbara A. Clark Barbara A. Clark and Company 270 First Avenue South, Suite 101 St. Petersburg, Florida 33701 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400 Michael Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Bishop Holifield, Esquire Florida Agricultural and Mechanical University 300 Lee Hall Tallahassee, Florida 32307-3100
Findings Of Fact Respondent, Fred H. White, was licensed as a registered general contractor in Florida under License Number RG 0005082 in February, 1968. Thereafter, in April, 1970, Respondent was issued his license to qualify BUILDINGS BY WINCHESTER, INC. His license went delinquent on July 1, 1973, however, it was reinstated and placed on active status in July, 1977 when Respondent qualified CAPITAL STONE COMPANY under that license. The license was to expire on June 30, 1981. In July 1982, it was again issued to Respondent qualifying as an individual and was, at all times pertinent to the issues alleged herein, active. On December 2, 1982, Respondent entered into a contract with Mr. and Mrs. E.M. Powell, of Lot 10, Shell Harbour, St. George Island, Florida, to build a 1736 square foot home for them for the contract price of $74,120.00. The plans and specifications for this construction were listed by number on the hand written contract signed by Respondent and the Powells and witnessed by Ronald Jones. This contract was signed after Mr. Powell procured the issuance of a building permit to build a 1668 square foot residence, estimated to cost $52,500.00 on his Shell Harbour property. Mr. Powell-indicates that the application for the building permit was made by his architect, Mr. Clayton Anderson, however, the application and permit itself reveals no place thereon where Mr. Anderson's signature appears. In fact, the signature of the applicant, undated, is that of Mr. Powell, but the permit, number 4512, was issued on November 11, 1982. Both Mr. Powell and the Respondent attribute the difference in size of the building and the price to changes made and agreed upon by the parties subsequent to the issuance of the permit and prior to the signing of the contract. The contract in question is what could be best described as a "bare bones" contract. The basic legal requirements of a contract are present in that the parties are identified, consideration is reflected, there is a specific legal purpose, and obviously an offer and acceptance with, at the time of signing, an apparent meeting of the minds. This document is, however, an invitation to dispute, as there is no estimated time of completion or any other detail which might serve to more clearly identify the rights and obligations of the parties. Mr. Powell indicates that the Respondent estimated three months would be necessary to complete the project and that Mr. White indicated he would be on the site just about every day. Mr. White tells a substantially different story, however, in that he contends he had other projects under construction at the time, projects with which Mr. Powell was totally familiar, and that he, Respondent, was present when necessary, to supervise as necessary. Mr. White denies that he was the general contractor for Mr. Powell on this job. He contends that he was the framing contractor and that Mr. Powell served as his own general contractor. He contends, and Mr. Powell admits, that much of the building material purchased was picked out by Mr. Powell. On the other hand, much was also ordered by Respondent. Neither side could give a detailed accounting of who bought what and no evidence was presented to show who did what in any detail. Certain of the subcontractors were arranged for by Respondent. Others were arranged for by Mr. Powell. All bills were paid by Mr. Powell. According to Respondent, he signed the contract as general contractor only so that Powell could get a Veterans' Administration loan and issued the completion certificate as general contractor because "that's the way it was done." Be that as it may, the house was subsequently completed, and at the closing on or about October 31, 1983, Mr. White, as general contractor, presented Mr. Powell with a contractor's affidavit in which he indicated that all subcontractors, laborers and material suppliers had been paid in full; that all building codes had been complied with; that all installed equipment including roofing, ventilators, windows, skylights, fireplaces, insulation, etc., were installed according to building code and manufacturers' instructions and that all manufacturers' guarantees and warranties were thereby validated by the proper installation of the product. Respondent orally warranted he would stand behind his work for one year. Mr. White, as was indicated above, denies he was the general contractor but insists that he was properly supervising those portions of the project which it was his responsibility to supervise. Mr. Powell, on the other hand, insists that Respondent was frequently absent and there were several periods when he did not appear on the site to supervise construction of the property for extended periods of days. There was no detailed evidence, however, as to which days were involved, but it is clear from all the evidence, including the contract and the certificate as well as Mr. White's testimony, that he was the general contractor and had a responsibility to adequately supervise the construction regardless of whether the subs in question were directly hired by him or were hired by Mr. Powell. It is inconceivable that Respondent would have continued to perform under the contract if he did not feel that he had a responsibility to do so and that, for the most part, matters were going as they were envisioned to go under the terms of the agreements between the parties. After installation and from the very beginning, Mr. Powell noticed a problem with the upper outside fixed windows on the land side of the house which had been picked out by Respondent. It appears that water was leaking in the vicinity of these triangular windows and ran down the interior walls under the two outermost windows into the light fixture over the sink and down onto the counter tops. Water also ran down the wall over the entrance door and damaged a closet ceiling near that area. As a result, part of the ceiling fell in the closet the counter top in the kitchen began to swell and pull away from the wall and the drawers in the closets began to bind. When these leaks first occurred, even before the house was completed, Mr. Powell notified the Respondent both orally and in writing. Respondent promised to repair the windows and did, on several occasions, come out and attempt repairs by caulking around the windows. However, these repairs were ineffective and each time it would rain, water would again come in. Respondent never inspected right after a rain, however. Consequently, on December 19, 1983, Mr. Powell wrote a letter of complaint to Respondent which he sent by Registered Mail to that address utilized by Respondent--Route 8, Box 85B, Tallahassee, Florida, 32301. Respondent was left several notices by postal authorities but failed to claim the letter from the post office and it was returned to the sender undelivered. Mr. Powell, on February 15, 1984, hand-delivered a similar letter outlining the discrepancies in the house to Respondent on the steps of the county courthouse in Apalachicola, Florida, but Respondent denies ever having received the letter. Respondent attempted to explain why he did not receive notice of the letter sent to him by Registered Mail. His explanation was so convoluted and involved as to be incomprehensible and not capable of belief. By the same token, Mr. Powell has a faulty memory of many of the things recited by Respondent. This is obviously a situation where both parties see the matter in the light most favorable to them and, unfortunately for the resolution of this dispute, there is little independent evidence of what happened. However, in resolution of the matter, it is found that though the first letter was not received, the second letter was, and Mr. White was given ample notice, aliande the letters, of the defects in the installation of these windows as well as the chimney cap through which, reportedly, water was entering the chimney and rusting the firebox of the fireplace. With regard to this chimney, Respondent agreed to install a new chimney cap, just to keep the peace, even though he did not feel there was anything wrong with the installation of the original one. Mr. Powell was to get it, but did not do so, however, claiming that he was never instructed by Respondent as to what kind to get or when to get it. As to the allegedly deficient cap, Respondent describes it as a tubular piece of metal perforated all around so that the smoke can get out but hot ash is retained. Since there are holes in the device to let the smoke out, water can get in through those holes when it rains. Respondent claims that what is needed, if a total absence of water is desired, is to place a cover over the cap. Respondent contends that all fireplaces built that way with an uncovered cap, admit water to some degree. There was no evidence presented by the Petitioner to contradict Respondent's assertion or to show that Respondent improperly installed the chimney cap. With regard to the windows, however, after Mr. Powell had made the repeated efforts to have Respondent repair the windows so that the leakage would stop, he subsequently contracted with another builder to replace them. When this second builder examined the windows, it was determined that they were too small for the opening in which they were placed and that they were improperly installed. This left a large area around the window which Respondent had attempted to fill with caulking, but the space was so large that caulking itself was insufficient to correct the problem. The second contractor determined it would be necessary to remove the windows and install appropriate sized windows in a proper fashion and this was done at a cost of in excess of $500.00. The windows have not leaked since. Respondent contends that the windows were properly installed and caulked and that the leak did not come from the space around the windows. Instead, he contends, the leak was caused by improper caulking of the batting above the window below the soffit which was the responsibility of the painter who was, in fact, Mr. Powell's son-in-law and hired by him. Even the builder who replaced the windows agrees that caulking of the batting would be the responsibility of the painter, but he contends that this leak was not caused by this deficient caulking but by the improperly sized and installed windows. This was Respondent's responsibility and it is so found. There is no evidence, aliunde that described above which in any way shows that Respondent made any misleading, deceptive, or fraudulent misrepresentations in the practice of contracting. Though no detailed information was presented regarding the actual number of days Respondent was absent from the job site, there was some substantial evidence on the part of Mr. Powell, who had no reason to lie, that Respondent was absent from the job site quite frequently.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that Respondent be found guilty of imcompetence in the installation of the windows in question in Mr. Powell's house, as alleged in the Administrative Complaint that the remaining allegations be dismissed that Respondent be reprimanded that his license be placed on probation for a period of two years under such terms and conditions as the Construction Industry Licensing Board shall determine appropriate, and that he make restitution to Mr. Powell in the amount of $577.23. RECOMMENDED this 11th day of June, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1986. Copies furnished: Fred Seely Executive Director Construction Industry Licensing Board P. O. Box 2 Jacksonville, Florida 32201 Errol H. Powell, Esquire Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Fred H. White, pro se Route 8, Box 85-B Tallahassee, Florida 32301 Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 APPENDIX 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 Petitioner herein. 1. Adopted in Finding of Fact 1. 2-4. Adopted in Finding of Fact 2. 5-6. Adopted in Finding of Fact 6. Adopted in Finding of Fact 3. Adopted in Finding of Fact 5. Adopted in Finding of Fact 14. Adopted in Finding of Fact 5. Adopted in Finding of Fact 7. lla. Irrelevant. Subordinate to the finding that Respondent was the general contractor. Adopted in Finding of Fact 8. Irrelevant. 15-16. Adopted in Finding of Fact 8. 17. Adopted in Finding of Fact 12. 18-19. Adopted in Findings of Fact 9 and 10. 20-21. Adopted in Finding of Fact 12. 22-25. Adopted in Finding of Fact 9. 26-27. Adopted in Finding of Fact 13. 28. Irrelevant. 29-31. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Subordinate to Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Adopted in Finding of Fact 12.
The Issue The issue is whether Respondent should pay Petitioner's attorney's fees and costs, and, if so, the amount.
Findings Of Fact Mayor Osborne was the Mayor of Beverly Beach, Florida, during 1999 through 2001. Dr. Milanick was a dentist who owned property immediately north of Beverly Beach, Florida. Dr. Milanick desired that the property be annexed into the town and initiated annexation proceedings before the City of Beverly Beach. Mayor Osborne did not facilitate the requested annexation during the time he served as Mayor of Beverly Beach. Dr. Milanick alleged to the Commission that Mayor Osborne opposed the annexation for personal, financial gain. In order to defend himself against these false allegations, Mayor Osborne retained Robert J. Riggio, Esquire, of the Riggio and Mitchell firm of Daytona Beach. The Original Award of Attorney's Fees An award of attorney's fees and costs in favor of Mayor Osborne was recommended in Division of Administrative Hearings Case No. 04-4110E. The Recommended Order stated that the amount of attorney's fees and costs for Mayor Osborne to defend against Dr. Milanick's allegations was $4,976.00. The Commission did not address the amount of attorney's fees and costs in its Final Order, but instead held that Mayor Osborne was not entitled to any award. Subsequently, the Fifth District Court of Appeal found the Commission's Final Order to be erroneous and remanded the matter ". . . for entry of an order making the awards recommended by the ALJ." A Mandate with regard to the Fifth District Court of Appeal issued April 11, 2007. The award recommended by the ALJ was, as stated above, $4,976.00, and that amount should be awarded by the Commission in a Final Order. Appellate Attorney's Fees Mayor Osborne filed a Motion for Petitioner's Appellate Attorneys' Fees and Costs before the Commission on May 10, 2007, noting the Fifth District Court of Appeal, in its Order dated February 16, 2007, stated that, "Appellant's Motion For Attorney's Fees, filed May 16, 2006, is granted and the above- styled cause is hereby remanded to the Commission . . . to determine and assess reasonable attorney's fees for this appeal." The Fifth District Court of Appeal addressed only attorney's fees. However, because Mayor Osborne's Motion sought both attorney's fees and costs, and because the Commission sent that Motion without special directions to the Division of Administrative Hearings for resolution, it is found that the Administrative Law Judge has jurisdiction to recommend awards of both attorney's fees and costs expended in prosecuting the appeal. David C. Robinson, an attorney in Daytona Beach, Florida, testified as an expert on attorney's fees in Volusia County, Florida. He has practiced law in Daytona Beach for 26 years and has testified in other attorney's fees cases. He is familiar with the fees charged by attorneys in the Daytona Beach and Volusia County area. He knows Attorney Robert Riggio, of Daytona Beach, Volusia County, and Attorney Martin Pedata, of Deland, a town that is also located in Volusia County. Mr. Robinson is found to be an expert on the subject of reasonable attorney's fees and costs in Volusia County. Mr. Robinson reviewed the bills and records relating to the fees charged to Mayor Osborne as to the appellate filings made by Mr. Riggio. In doing so he considered the Lodestar approach as described in Florida Patients Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Mr. Robinson opined that the services performed by Mr. Riggio in the appellate proceeding were provided in a manner that an attorney would be reasonably expected to provide. He reviewed the hourly rate charged by Mr. Riggio and stated that the reasonable rate should be $250.00 per hour, but that Mr. Riggio only charged $150.00 per hour. Mr. Riggio's law firm, Riggio and Mitchell, billed Mayor Osborne for 95 hours. A small portion of the work was accomplished by his partner Jerome D. Mitchell. Other work in the amount of 9.4 hours was billed for paralegal work at $40.00 per hour. The 95 hours of attorney work was billed at $150.00 per hour for a total of $14,250.00, and the paralegal work totaled $376.00. Costs amounted to $859.70. This resulted in a total of $14,626.00 for fees and $859.70 in costs. Mayor Osborne paid these charges in full. Mr. Robinson opined that the rate charged and hours expended by Mr. Riggio in the appellate proceeding were appropriate, as were the costs incurred. His testimony is found to be credible. As a result of Mr. Riggio's efforts, Mayor Osborne prevailed in the appeal. It is found that Dr. Milanick caused Mayor Osborne to pay attorney's fees and costs in the amount of $15,485.70. Proving Entitlement to Fees and Costs Subsequent to Dr. Milanick's allegations of misconduct before the Commission, and after an investigation, the Commission, in a Public Report dated September 8, 2004, dismissed the complaint on a finding of no probable cause in the case of Mayor Osborne. Pursuant to Subsection 112.317(8), Florida Statutes, Mayor Osborne was entitled to be reimbursed for the attorney's fees and costs associated with defending himself against Dr. Milanick's allegations. Because Dr. Milanick did not voluntarily remit the fees and costs expended, a hearing was required. A hearing was held in this matter in Daytona Beach, Florida, on May 11, 2005. The hearing in Division of Administrative Hearings Case No. 04-4110FE, lasted an entire day. Prior to the hearing, Mayor Osborne engaged the services of Attorney Martin Pedata in addition to those provided by Mr. Riggio. The agreement for representation by Mr. Pedata was reduced to writing on April 6, 2005. The agreement provided that Mayor Osborne would pay Mr. Pedata $250.00 per hour for his services and $75.00 per hour for paralegal services. Mr. Robinson reviewed the bills and records relating to the fees charged to Mayor Osborne for the preparation for and the conduct of the hearing of May 11, 2005. Mr. Robinson stated that the hourly rate of $250.00 was a reasonable one for the type of services provided by Mr. Pedata. He stated that the number of hours expended by Mr. Riggio and Mr. Pedata in connection with this hearing was reasonable. In analyzing this claim he used the Lodestar approach set forth in Rowe. Mr. Riggio and his partner Mr. Mitchell, expended 160.6 hours proving entitlement to fees and costs. Mr. Pedata, as lead attorney in the entitlement case, expended 107 hours. In addition, 54.2 paralegal hours were expended in proving the entitlement case. These hours include the time up to the filing of the appeal with the Fifth District Court of Appeal. These hours also include the time spent before the Commission. As a result of the efforts of Mr. Riggio and Mr. Pedata, Mayor Osborne prevailed in the entitlement hearing, which resulted in a Recommended Order in his favor. Mayor Osborne paid Mr. Riggio and Mr. Pedata a total of $50,840.00 for their services in proving entitlement to attorney's fees. He also paid $2,168.00 for paralegal services. Total costs amounted to $3,764.73, which Mayor Osborne paid. The total fees and costs to Mayor Osborne was $56,772.73. Mr. Robinson opined that the rate charged and hours expended by Mr. Riggio in the appellate proceeding were appropriate, as were the costs incurred. His testimony is found to be credible. It is found that Dr. Milanick was responsible for Mayor Osborne having to pay attorney's fees and costs in the amount of $56,772.73. Additional fees and costs Mr. Riggio presented Mayor Osborne with an invoice in the amount of $2,370.00 for the cost of the current proceeding. However, the Administrative Law Judge is without jurisdiction to address this claim in this proceeding.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics award attorney's fees and costs as follows: The original award of attorney's fees in the amount of $4,976.00. Attorney's fees and costs for appellate attorney's fees and costs in the amount of $15,485.70. Attorney's fees and costs for proving entitlement to fees and costs in the amount of $56,772.73. DONE AND ENTERED this 14th day of November, 2007, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2007. COPIES FURNISHED: Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Kaye Starling Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Dr. Alexander J. Milanick 7250 A1A South St. Augustine Shores, Florida 32080 Phillip C. Claypool, Executive Director and General Counsel Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James Peterson, Esquire Linzie Bogan, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
The Issue Whether Petitioner waived its right to protest the Supplemental Notice of Intent to Award issued by the Department on December 1, 2020.
Findings Of Fact On March 17, 2020, the Department issued Request for Proposals Number 06-80101500-J (the RFP) seeking vendors to provide services through state term contracts in two categories (Service Categories): (1) management consulting services (MCS) and (2) financial and performance audit services (FPA). The awarding of state term contracts resulting from the RFP does not guarantee the awarded vendors business; instead, being selected for award under a state term contract merely allows the awarded vendors to further compete for business from state agencies and certain defined eligible users who require the services offered under the contract. After vendors are selected for a state term contract, a state agency or eligible user who requires the services issues a request for quotes from the state term contract vendors. The vendors decide whether they want to compete for the specific services solicited by submitting a quote, and the procuring agency or user then selects from the contracted vendors the vendor that can best fit its unique needs based on the quotes. Accordingly, the purpose of the RFP is simply to pre-qualify the vendors for the future possibility of obtaining work from state agencies and eligible users. Consequently, the Department’s award to multiple vendors for each Service increases competition and gives the users significant choice in selecting a vendor, with each additional award having the effect of increasing the competition and choice available to state agencies and other eligible users who utilize the state term contract. The Department separately evaluated proposals submitted in the two Service Categories and made separate awards for each Service Category. Integrity Group submitted proposals for both Service Categories. Petitioner’s Protest concerns only the actions of the Department in conducting the procurement for the MCS Service Category and does not implicate the FPA Service Category. As part of the evaluation for the MCS Service Category, each vendor submitted a summary of its experience and a separate proposal for each individual Service (Services a through l) within the MCS Service Category. Integrity Group submitted a response summarizing its experience and an individual proposal for each of the MCS Services (Services a through l). Five evaluators appointed by the Department were tasked with scoring each vendor’s response with respect to experience, as well as separately evaluating and scoring each Service proposal submitted for Services a through l. The vendor with the highest score for each Service was awarded a state term contract for such Service, and the RFP reserved to the Department the right to make additional awards to vendors that scored within 25% of the highest score for each Service. The Department initially posted its Notice of Intent to Award and a list of the vendors that were awarded contracts in each Service on September 29, 2020. While the Department awarded Integrity Group state term contracts for the FPA Service Category, it did not make any awards to Integrity Group for the MCS Service Category. The Notice of Intent to Award for the MCS category posted by the Department on September 29, 2020, stated: State of Florida Notice of Intent to Award Management Consulting Services RFP No: 06-801 01500-J Date: September 29, 2020 As to the Management Consulting Services (MCS) category of the above-mentioned Request for Proposals, pursuant to sections 287.057(1)(b) and 120.57(3), Florida Statutes, the Department of Management Services hereby posts its Notice of Intent to Award a contract to the vendors listed in the MCS Award List attachment. Vendors who submitted proposals but were not awarded a Contract are listed in the MCS No Award attachment. Vendors who have submitted proposals deemed non-responsive are listed in the MCS Non-responsive attachment. Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under chapter 120, Florida Statutes. Any protest concerning this agency decision or intended decision must be timely filed with the Agency Clerk. Protests may be filed by courier, hand delivery, or U.S. mail at Department of Management Services, Office of the General Counsel, Attention: Agency Clerk, 4050 Esplanade Way, Suite 160, Tallahassee, FL 32399-0950. Protests may also be filed by fax at 850-922-6312 or by email at agencyclerk@dms.fl.gov. It is the filing party’s responsibility to meet all filing deadlines. From October 9 to 12, 2020, the Department received formal protests from four vendors not initially selected for award: Intervenor, MGT; TEK Systems Global Services, LLC; Slalom, LLC; and Tidal Basin Government Consulting, LLC. Integrity Group did not file a notice of protest within 72 hours of the Department’s posting of its September 29, 2020, Notice of Intent to Award, and did not file a formal written protest within ten calendar days from the filing of a notice of protest. On December 1, 2020, and after having engaged in resolution conferences with each of the protesting vendors, the Department issued a Supplemental Notice of Intent to Award, which awarded contracts to the four protesting vendors. Thereafter, on December 4, 2020, Integrity Group filed a notice of intent to protest related to the Department’s Supplemental Notice of Intent to Award, and on December 14, 2020, filed Petitioner’s Protest. Petitioner’s Protest alleges that “the Integrity Group is substantially and adversely affected by the Department’s improper and fundamentally flawed procurement process and erroneous decision to exclude the Integrity Group from receiving any awards.” However, as explained in the Conclusions of Law below, Petitioner’s Protest is untimely, has been waived, and should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner lacks standing and dismissing Petitioner’s Protest with prejudice. DONE AND ENTERED this 22nd day of January, 2021, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2021. COPIES FURNISHED: Rebekah Davis, Esquire Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399 Marion Drew Parker, Esquire Radey Law Firm Suite 200 301 South Bronough Street Tallahassee, Florida 32301 Mia L. McKown, Esquire Holland & Knight LLP Suite 600 315 South Calhoun Street Tallahassee, Florida 32301 Benjamin J. Grossman, Esquire Foley & Lardner LLP Suite 900 106 East College Avenue Tallahassee, Florida 32301 Christopher Brian Lunny, Esquire Radey Law Firm Suite 200 301 South Bronough Street Tallahassee, Florida 32301 Karen D. Walker, Esquire Holland & Knight, LLP Suite 600 315 South Calhoun Street Tallahassee, Florida 32301 Mallory Neumann, Esquire Foley & Lardner LLP Suite 900 106 East College Avenue Tallahassee, Florida 32301 William D. Hall, Esquire Dean Mead & Hall Suite 1200 106 East College Avenue Tallahassee, Florida 32301 James A. McKee, Esquire Foley & Lardner LLP Suite 900 106 East College Avenue Tallahassee, Florida 32301 William Chorba, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Jonathan Satter, Secretary Department of Management Services 4050 Esplanade Way, Suite 285 Tallahassee, Florida 32399-0950 Daniel R. Russell, Esquire Dean Mead & Hall Suite 1200 106 East College Avenue, Tallahassee, Florida 32301
The Issue Whether Petitioner's "change of status" application should be denied for the reasons set forth in the Notice of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner has an undergraduate and master's degree in civil engineering from the Georgia Institute of Technology (received in 1962 and 1964, respectively) and a law degree from Emory University (received in 1980). In 1968, Petitioner went into the consulting business, and he has had his own business ever since. Since 1968, Petitioner has been licensed as a professional engineer, at one time or another, in approximately 20 different states, including Florida. He has held his Florida license since 1970. The other states in which he is currently licensed are Georgia, Alabama, New York, and Maryland. Petitioner is licensed to practice law in Georgia, but is on inactive status. Petitioner has been licensed as a real estate broker in Florida since 2001 or 2002. Petitioner has been certified as a general contractor in Florida since 1980. He was the qualifier for McKinney Drilling Company from 1980 until 1994. Since 1994, he has been the qualifier for Pressure Concrete, Inc. (Pressure), which approximately a year ago was purchased by Proshot Concrete, Inc. (Proshot). Petitioner has never received any discipline in connection with any of the professional licenses he has held over the years, including the certification allowing him to engage in general contracting in Florida; nor does he have any criminal record. Petitioner has not undertaken any construction or consulting project that has resulted in a lawsuit, judgment, or lien being filed. Petitioner has not been involved in any project where there has been a default triggering a claim against a payment or performance bond. All of the vendors and suppliers he has used on construction projects have been paid. Petitioner has never filed for bankruptcy. There are no lawsuits now pending against Petitioner. In or around September 2006, Petitioner completed and submitted an application to the Board seeking a "change of status" in his certification to enable him (as a general contractor) to qualify Proshot instead of Pressure. Petitioner used a Board-generated form, DBPR CILB 4363-Change of Status Application From One Business Entity to Another (Form), to apply for such a "change of status." The "Financial Responsibility" section of the Form contained the following questions and accompanying instructions: NOTE: If you answer "Yes" to any of the questions below, you must provide an explanation on DBPR 0060-General Explanatory Description form and attach legal documentation, i.e., satisfaction of lien, judgment, payment schedule, etc. If you have been convicted of a felony, you must submit proof of reinstatement of civil rights. The following persons must answer the financial responsibility questionnaire: Qualifying Agent All Owners/Partners Have you, or a partnership in which you were a partner, or an authorized representative, or a corporation in which you were an officer or an authorized representative ever: Undertaken construction contracts or work that a third party, such as a bonding or surety company, completed or made financial settlements? Had claims or lawsuits filed for unpaid past-due bills by your creditors as a result of construction operations? Undertaken construction contracts or work which resulted in liens, suits, or judgments being filed? (If yes, you must attach a copy of Notice of Lien and any payment agreement, satisfaction, Release of Lien or other proof of payment.) Had a lien filed against you by the U.S. Internal Revenue Service or Florida Corporate Tax Division? Made an assignment of assets in settlement of construction obligations for less than the debts outstanding? Been charged with or convicted of acting as a contractor without a license, or, if licensed as a contractor in this or any other state, been subject to any disciplinary action by a state, county, or municipality? (If yes, you must attach a copy of any state, county, municipal or out- of-state disciplinary order or judgment.) Filed for or been discharged in bankruptcy within the past five years? (If "yes," you must attach a copy of the Discharge Order, Order Confirming Plan, or if a Corporate Chapter 7 case, a copy of the Notice of Commencement.) Been convicted or found guilty of or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction? Note: If you, the applicant/licensee, have had a felony conviction, proof that your civil rights have been restored will be required prior to Licensure. Petitioner answered "No" to all of these questions, believing, in good faith, that such information was accurate. The final page of the Form contained the following "Attest Statement," which Respondent signed: I have read the questions in this application and have answered them completely and truthfully to the best of my knowledge. I have successfully completed the education, if any, required for the level of licensure, registration, or certification sought. I have the amount of experience required, if any, for the level of licensure, registration, or certification sought. I pledge to comply with the applicable standards of practice upon licensure, registration, or certification. I understand the types of misconduct for which disciplinary proceedings may be initiated. As part of the application process, Petitioner made the necessary arrangements with Advantage Information Services, LLC (Advantage) to directly provide the Board with a credit report. On or about October 26, 2006, Advantage sent the Board a two-page Transunion credit report (Transunion Report) containing Petitioner's "credit profile," along with a one-page report of the results of a "check[]" of public records at the "local, statewide, and national level" (Records Check Report). The Transunion Report revealed a federal tax lien in the amount of $35,100.00 that had been filed against Petitioner in 1997 for unpaid personal income taxes. Petitioner was aware of this lien at the time he filled out the Form, but did not report it in response to Question 4 of the "Financial Responsibility" section because he did not understand the question to ask about liens such as this one which were unrelated to his business activities. The Internal Revenue Service is withholding 15% of Petitioner's monthly Social Security benefit and applying it to reduce the amount Petitioner owes for his unpaid personal federal income taxes. The Records Check Report read as follows: Public records have been checked on a local, statewide, and national level and are incorporated within the report. Additional records are as follows: Cheatham Register of Deeds, TN - Federal Tax Lien Release, 01/11/2005, Case #74147 - Book/Page 131/552 - $30,908.00 - Not Paid. Plaintiff: IRS Walton County Superior Court GA - County Tax Lien, 03/12/1998, $387.00 - Not Paid. Case Number - B3P253C, Book/Page - 3/253 Plaintiff: County Tax Assessor Dekalb County State Court, GA - Civil Judgment, 05/01/1991, $49,283.00 - Not Paid. Case Number - 814497 Plaintiff: Bank South The 1998 Walton County Tax lien noted in the Records Check Report concerned an assessment made on tangible personal property in the form of an airplane owned, not by Petitioner, but by a corporation of which he was the president. The lien did not arise out of any activities in which Petitioner was engaged as a general contractor. The 1991 Dekalb County civil judgment noted in the Records Check Report required Petitioner to repay a bank loan Petitioner had co-signed for a friend. It too had nothing to do with his activities as a general contractor. It was only after the Board had provided Petitioner with a copy of the Records Check Report that Petitioner first became aware of the existence of the 1998 Walton County Tax lien and the 1991 Dekalb County civil judgment.2 As noted above, on April 18, 2007, the Board issued its Notice of Intent to Deny Petitioner's "change of status" application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board find Petitioner qualified for the "change of status" for which he has applied. DONE AND ENTERED this 1st day of November, 2007, 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 November, 2007.
