The Issue The issue is whether Petitioner is entitled to credit for his answer to Question 74 on the July 2003 Electrical Contractor's Examination.
Findings Of Fact Petitioner took the July 2003 Electrical Contractor's Examination and ultimately earned a 74 after a subsequent adjustment to his grade. A passing score is 75, so Petitioner needs to obtain credit for an answer to one question, if he is to pass the examination. Question 74 required the candidates to calculate the maximum sign load, in amperes, for a 120-volt, 20-amp circuit in an industrial occupancy. The examination allowed candidates to use the 2002 National Electrical Code codebook (NEC). Petitioner's answer was 20 amps, but the answer for which Respondent gave credit was 16 amps. NEC Article 210.23(A)(1) provides that the rating of any one cord-and-plug-connected utilization maximum permissible load for a 20-amp circuit shall not exceed 80 percent of the branch-circuit ampere rating. This authority suggests that the correct answer to Question 74 is 16 amps. NEC Article 210.20(A) provides that the rating of the overcurrent device on a branch circuit supplying continuous loads, which are elsewhere defined as any load expected to continue more than three hours, such as a sign, shall be 125 percent of the continuous load. An overcurrent device of 20 amps thus would be required for a continuous load of 16 amps. Thus, whether a cord-and-plug or continuous-load circuit, the maximum sign load on a 20-amp circuit is 16 amps, as is consistent with the trade knowledge in the electricians' profession. Petitioner relied on NEC Article 600.5(B)(1), which specifies that branch circuits for signs with incandescent and fluorescent forms of illumination shall be rated not to exceed 20 amps. This is the rating of the circuit, as described in Question 74, which proceeds to ask the maximum sign load for this 20-amp circuit. Question 74 does not seem to have been confusing. It was answered correctly by 58 percent of the well-performing candidates and 52 percent of all candidates taking the examination in July 2003. Question 74 was a difficult question, but useful in discriminating between levels of competence of candidates taking the examination.
Recommendation It is RECOMMENDED that the Department of Business and Professional Regulation enter a final order dismissing Petitioner's challenge to the scoring of his July 2003 Electrical Contractor's Examination. DONE AND ENTERED this 12th day of April, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 12th day of April, 2004. COPIES FURNISHED: Tim Vaccaro, Director Construction Industry Licensing Board Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Paul Moloy Hall 2035 Southeast Harding Street Port St. Lucie, Florida 34952
The Issue The issues to be resolved in this proceeding concern whether the Respondent should be subjected to disciplinary sanctions based upon alleged violations of Sections 489.127(1) and 489.531(1), Florida Statutes, by engaging in the business or capacity of a general contractor, and as an electrical or alarm system contractor, without being certified or registered.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating and enforcing the statutes and rules pertaining to the licensure and practice of contracting, including construction contracting and electrical contracting. The Petitioner is also charged with regulating and enforcing statutes concerning the unauthorized practice of such contracting, including practicing without proper certification or registration. At all times material hereto the Respondent, Kevin Davidson, d/b/a Wise and Davidson Construction and Davidson Contracting and Construction (Davidson or Kevin Davidson) was not licensed, certified or registered to engage in construction contracting or any electrical or alarm system contracting in the State of Florida. On or about December 21, 2004, the Respondent, doing business as Davidson Contracting and Construction, contracted with Mr. Hanson, a witness for the Petitioner, to install and erect a 50-foot by 60-foot by 17 and one-half foot airplane hanger on a concrete foundation. He also contracted to install a 200 amp electrical panel box on Mr. Hanson's property in conjunction with construction of the building. The property was located in Morriston, Florida. The contracted price for the work described was $47,597.30. Mr. Hanson paid the Respondent the total of $20,514.30 as part of the contract price. The Respondent never finished the project, but only laid the concrete foundation. At the insistence of the Respondent, Mr. Hanson rented a backhoe which the Respondent agreed to operate in constructing a driveway. The work was never finished, and Mr. Hanson had to obtain other help in constructing the driveway. The Respondent also damaged the rented backhoe while he was operating it. These factors caused Mr. Hanson an additional economic loss of $4,830.38. On or about December 13, 2004, the Respondent, doing business as Wise and Davidson Construction, contracted with Ms. Crowell, a Petitioner witness, to install and erect a 50- foot by 60-foot by 17 and one-half foot steel building on a concrete foundation, also in Morriston, Florida. The Respondent also contracted to install a 200 amp electrical panel box in conjunction of construction of that building. The total amount of the contract price was $47,047.30. Ms. Crowell paid the Respondent at least $35,251.35 in partial payment for the contract. After laying the foundation, however, the Respondent abandoned this project as well. The Respondent's abandonment of the project cost Ms. Crowell $29,943.00 in additional economic damage in order to obtain completion of the project by another contractor. The Department incurred certain investigative costs in prosecuting these two cases. It was thus proven by the Petitioner that the Department expended $510.06 for the prosecution of DOAH Case No. 06-2308. The Petitioner also established that it spent the sum of $944.13 in costs for Case No. 06-2307. This represents total investigative costs expended by the Agency of $1,454.19, for which the Petitioner seeks recovery. The Petitioner is not contending that any attorney's fees are due.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Department of Business and Professional Regulation enter a final order determining that the Respondent has violated Sections 489.127(1)(f) and 489.531(1), Florida Statutes (2004), as alleged in the earlier-filed Administrative Compliant in Case No. 06-2308, and impose an administrative fine in the amount of $5,000.00 for the violation of Section 489.127(1)(f), Florida Statutes (2004), and an administrative penalty of $5,000.00 with regard to the electrical contracting violation, as provided for by Section 455.228, Florida Statutes (2004). It is further recommended that the final order determine that the Respondent is guilty of violating Sections 489.127(1)(f) and 489.531(1), Florida Statutes (2004), as alleged in the later-filed Administrative Complaint in Case No. 06-2307 and that an administrative fine in the amount of $10,000.00 for the violation of Section 489.127(1)(f), Florida Statutes (2004), and that an administrative penalty of $5,000.00 be imposed for the electrical contraction violation, as provided for by Section 455.228, Florida Statutes (2004). It is further recommended that costs be assessed against the Respondent for investigation and prosecution of both cases, not including costs associated with attorney's time and efforts, in the total amount of $1,454.19, payable to the Petitioner Agency. DONE AND ENTERED this 15th day of November, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 15th day of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Kevin Davidson Post Office Box 131 LoveJoy, Georgia 30250 Nancy S. Terrel Hearing Officer Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues to be resolved in this proceeding concern whether Petitioner materially failed to comply with certain state contract conditions and whether, pursuant to pertinent rules, the Petitioner should be removed from the approved "vendor's list" and thereby precluded from bidding on proposed procurements of the Respondent agency.
Findings Of Fact Southern Communications Group was a partnership consisting of Mr. Daus, Timothy Barfield and another individual as general partners at the time Southern's bid for the telephone procurement in question was submitted. Southern is on the approved vendor's list maintained by DGS and is a qualified State contractor. Some time in early January 1988, after the subject contract was awarded to Southern, Tabco Enterprises, Inc. acquired Southern Communications Group, at which approximate time Mr. Barfield assumed management of the operation of Southern Communications. The Division of Purchasing of the Department of General Services is the state agency responsible for preparation and administration of state contracts for various commodities. State agencies are obligated to use these contracts. The Division of Purchasing of DGS is responsible for maintaining a list of approved vendors and has authority under Rule Chapter 13A-I, Florida Administrative Code to remove vendors who failed to perform as obligated under State contracts. One of the State wide commodities contracts prepared and administered by the Division of Purchasing is for "telephone instruments - not installed". Ms. Cherrie McClellan is a Purchasing Specialist with the Division who is responsible for the administration of this contract. She prepared the bid packets for the telephone instrument contract underlying the dispute in this case, contract No. 482-730-030-W (the contract). She prepared the bidding documents involved based upon general conditions promulgated by the Division, certain special conditions she prepared herself and technical specifications supplied by DGS's Division of Communications. She then issued the bid package to vendors who were on the previously existing mailing list, including the Petitioner. General condition Four E of the Invitation to Bid (ITB) states in pertinent part: It is understood and agreed that any item offered or shipped as a result of this bid shall be new (current model at the time of this bid) Prior to the bid award DGS had already interpreted and expressed the policy to the effect that the term "new" meant unused, never before installed, telephone equipment which is an acceptable current production model. The agency received a number of bids including one from Southern. During the bid evaluation Ms. McClellan noted that one bidder's price seemed unusually low based upon her experience with new telephone prices. She examined that bid and learned that the low prices were for re-manufactured as opposed to new telephone equipment. This bidder was notified of this fact and was thereafter disqualified from the bid award process for its failure to offer new equipment. Thereafter Ms. McClellan also noticed that prices in the bid submitted by Southern were unusually low and similar to those of the disqualified bid. Consequently, she attempted to contact Mr. Norris Daus who had submitted the Southern bid. After a number of unsuccessful efforts, she reached Mr. Daus by telephone on October 3, 1987 and inquired whether his quoted prices were for new as opposed to re- manufactured or refurbished instruments. Mr. Daus verbally confirmed that the prices were for new equipment. Mrs. McClellan's supervisor, Mr. John Fain, was also aware of the unusually low prices submitted by Southern in response to the ITB and he too conversed with Mr. Daus by phone. According to Mr. Fain, Mr. Daus confirmed that he understood that the bid called for new equipment. Mr. Daus, however, at hearing, testified initially that he had not spoken with Mrs. McClellan and then later said that he had no recollection of speaking with her. He contended that she had called him in January of 1988, after the contract was entered into. His testimony is somewhat equivocal and is not deemed as accurate as that of Mrs. McClellan and Mr. Fain and therefore, based upon the totality of the corroborating circumstances in evidence, including Mrs. McClellan's handwritten memo recording her efforts to contact Mr. Daus, is rejected in favor of her testimony and that of Mr. Fain. In any event, in December of 1987, Southern was awarded the contract based in part on the verbal representations of Mr. Daus to the effect that the telephones to be supplied were to be new instruments and not re-manufactured or re-furbished ones. The contract term commenced on January 20, 1988 and should have run through January 19, 1989. Early in the contract period, Mrs. McClellan received a complaint from a State agency reporting that Southern had supplied telephones under the contract which were not new instruments. She telephoned Mr. Barfield with Southern to inquire about this matter and requested that he come to her office to discuss the agency's complaint. Mr. Barfield testified, however, that the visit to her office was at his own instigation in order to learn more about his obligations under the contract and that only general issues about his obligations under the contract were discussed. Mrs. McClellan, however, discussed specifically her prior conversation with Mr. Daus, her concerns that the contract called for new equipment only and that they had reports that re- manufactured equipment was being supplied in some instances. She further testified that Mr. Barfield agreed to stop shipping re-manufactured instruments and to supply only new equipment thereafter. In view of the fact, established in evidence, that DGS had already expressed concerns to Mr. Daus about the provision of re-manufactured equipment instead of new before the conversation with Mr. Barfield, Mrs. McClellan's testimony is accepted concerning the subject matter of and the communications made during the meeting in question over that of Mr. Barfield. Later, in early 1988, Mrs. McClellan received other agency complaints concerning Southern's performance under the contract to the same effect, that is, that re-manufactured telephones instead of new ones were being supplied. After reviewing a number of these complaints, she again telephoned Mr. Barfield and confronted him with the complaints, directing him in March, 1988, to ship only newly manufactured equipment. Neither Mr. Daus nor Mr. Barfield had outwardly disagreed with Mrs. McClellan's interpretation of the word "new" and neither requested any written interpretation of that term. Mr. Barfield admitted that Mrs. McClellan directed him, in March 1988, to ship only newly manufactured equipment. Mrs. McClellan forwarded the complaints from the agencies which had received non-compliant instruments from Southern to Mr. Barfield. At least one non-compliant telephone instrument had been delivered to the University of North Florida. Non-compliant ten button telephones were delivered to the Palm Beach Detention Center, two non-compliant six button DTMF telephones were delivered in Crestview, Florida on behalf of the Apalachee Correctional Institution and two non-compliant telephones were supplied through the Apalachee Correctional Institution for delivery to DeFuniak Springs. Additionally, a non-compliant telephone instrument was delivered to District 11 of the Department of Health and Rehabilitative Services. DGS' Exhibits 6-10 relate to these complaints. Mr. Barfield received all of these complaint letters from Mrs. McClellan but only replaced telephone instruments at the University of North Florida with new, unused ones. Mrs. McClellan received certain telephones from the agencies which were allegedly non-compliant, re-manufactured ones which had been supplied these agencies by Southern. She forwarded these to Florian "Sam" Houston, the Supervisor of the Access Systems Section, Division of Communications. She requested that he examine the telephones in question to determine if they were in compliance with the contract requirements, that is, new and unused telephones, or alternatively, whether they were re-manufactured telephones. Mr. Houston is a telecommunications expert with over 17 years experience in the communications and aerospace telecommunications industry. His section is responsible for all telephone systems supplied to the State agencies. His staff prepared the technical specifications for the contract in question and he himself reviewed those specifications. He and his staff examined the three telephones submitted for inspection and determined that they contained used parts and were therefore not new telephones as required by the contract. Mr. Houston sent Don Daniels of his staff to perform field inspections of certain telephones supplied by Southern. Mr. Daniels thus found four non- compliant telephones in West Palm Beach, two in Crestview and two more in DeFuniak Springs, referenced above. DGS Exhibit 6 is the notification from the agency to Southern that a sample telephone instrument had been found to be non-complaint with the contract specifications and DGS thereby gave Southern Communications ten days to correct that situation or to be found in default on the contract. DGS Exhibits 7-10 are similar letters informing Southern of similar failures to perform with reference to the other non-compliant telephones referenced above. Each letter gives Southern ten days to comply or be found in default. A re-manufactured telephone involves a previously used instrument which is taken out of service, disassembled, thoroughly cleaned with any broken or unserviceable parts being replaced. It is then re-assembled to certain standards. When a re-manufactured phone is resold for further use, it must meet Federal Communications Commission standards. Those standards refer, however, to the transmitting and receiving capability and do not relate to the durability of the instrument itself. "Refurbishing" generally involves a less detailed re- juvenation process involving cleaning and placing in serviceable working order. Both terms describe the process of creating a finished product which contains used original parts. Mr. Michael Johnson, whose company supplied the re- manufactured instruments to Southern Communications which are in dispute here established that those terms are in reality interchangeable. In any event, DGS uses a ten year life expectancy for telephones on State contracts assuming those are new telephones. Ten years is the normal life expectancy accepted in the industry for new telephones. The life expectancy for re- manufactured instruments is significantly less and in some cases only five years. A decreased life expectancy of such instruments is due to the re-use of used components, some of which may already surpass the original life expectancy in the original condition instruments. In fact, according to Mr. Johnson, his company might even use twenty year old parts in some re-manufactured phones. While it is true that re-manufactured phones carry identical one year warranties as do new phones, the re-manufactured phones are not the service equals of new phones because re-manufactured instruments will not last as long and any telephone is used much longer than the warranty period itself. Re-manufactured phones appear to the casual observer and to the layman to be new phones. Casual inspection of such a telephone will not reveal any differences from a new telephone. The difference between new and re-manufactured instruments only becomes obvious when their covers are removed and they are disassembled and inspected. When State agency telephones are no longer needed for whatever purpose, they are declared surplus and sold or traded in. When they are traded in, re-manufactured phones have a significantly lower value than new phones, largely due to their used life expectancy versus that of new telephones. It is also true that re-manufactured telephones cost both the supplier and the purchaser significantly less than new instruments. Southern does not dispute that it supplied re- manufactured telephone instruments to users of the State contract in question. It maintains, however, that re-manufactured phones are the equivalent of new phones and that the specifications in the ITB documents regarding new phones was not specific enough to show any indication that re-manufactured phones were non- compliant and that since re-manufactured phones meet "FCC" specifications and carry the same warranty as a new telephone that they are no different than new telephones. In view of the above findings, however, re-manufactured phones are not the functional equivalent of new telephones because of their shortened useful life. In any event, Southern is belatedly disputing the nature of the specification regarding new telephones in the ITB and in the contract. It accepted without protest the provision in the Invitation to Bid documents and in the contract concerning "new" telephones, quoted above. Moreover, through communication by Mrs. McClellan to Mr. Daus before the contract was actually awarded, Southern was verbally informed of the Department's policy concerning what it deemed new phones to mean and that policy was proven by the testimony of Mrs. McClellan concerning her conversation by phone with Mr. Daus, as well as the fact that she had previously stricken the bid proposal of another vendor because that vendor was proposing to supply re-manufactured telephones. Southern should have known at the time that it was awarded the contract that re-manufactured equipment was not acceptable. Mr. Fain and Mrs. McClellan had provided adequate notice of this by their verbal contact with Mr. Daus. Clearly Southern knew that re-manufactured equipment would not be acceptable well before it cancelled the contract at any rate. Mr. Barfield admitted that Mrs. McClellan directed him to ship only newly manufactured equipment in March, 1988. Neither he nor Mr. Daus, before or after award of the contract, ever disagreed openly with the agency's interpretation of the word "new" in the specifications. Neither of them, nor any person on behalf of Southern, requested any written interpretation or clarification of that word in the specifications prior to bidding or at any time thereafter. The exact number of telephones supplied as re- manufactured by Southern is unknown. Southern supplied a total of 1723 telephones. The only way to determine the exact number of re-manufactured instruments would be through field examination of each phone sold by Southern or possibly through records that Southern may maintain concerning orders from its suppliers, and its inventory, if such exist. They are not in evidence however. In any event, Southern continued to ship re- manufactured instruments even after the March 9, 1988 conversation between Mr. Barfield and Mrs. McClellan wherein she instructed him to cease that practice. Mr. Barfield's testimony is indefinite on the question of when Southern ceased shipping re- manufactured instruments under the contract, if at all. Mr. Barfield testified at one point that only originally manufactured equipment was shipped after his March, 1988 conversation with Mrs. McClellan, but he later testified that he continued to ship re-manufactured equipment after that conversation, but stopped at some point thereafter. He did not establish when that was. Although directed by the Department to replace those re-manufactured instruments with new telephones, Southern replaced no re-manufactured instruments other than those supplied to the University of North Florida. Mr. Barfield stated in his testimony that he did not intend to replace any more re- manufactured telephones. DGS has not followed a policy or practice of accepting re-manufactured equipment pursuant to such a contract. Mr. Herman P. Barker is an expert in State procurement. He has been employed in that field since 1967. He was unaware of any instance where refurbished or re-manufactured telephones have been accepted when a contract calls for new equipment. Agencies using the State contract for such purchases typically deal directly with the approved contractor. The agencies receive the items which are the subject of such a contract and determine themselves whether the proper models have been delivered. The agencies, however, do not have the necessary expertise to perform technical evaluations of each instrument received and are not required under the terms of such contracts, including this one, to disassemble goods in order to make inspections and evaluations before acceptance upon the delivery of the instruments. If an agency cannot resolve a problem with a vendor, the agency then refers the matter to DGS and the DGS Purchasing Agent for the commodity in question gathers information about the dispute and contacts the contractor. Two contract users contacted Southern directly, Mr. McMullen of the University of North Florida and William A. Walker. Mr. Walker asked Southern to supply new instruments and agreed to return the re- manufactured ones upon receipt of the new instruments. Southern did not respond to Mr. Walker's request for new telephones nor did it replace other telephones as directed by DGS. Southern has taken the position that the agencies are precluded from challenging any purported nonconformance with the contract after they have accepted delivery of the instruments. Southern maintains that the agencies had an opportunity to inspect the instruments upon receipt, and if no complaint was registered with the contractor upon that initial inspection and acceptance, then title to the instrument passed and no complaint of non-performance of the contract with regard to those instruments may be thereafter asserted. The Petitioner contends that the place and method of inspection was fixed by the contract between the parties here as being the place of destination.1/ The fact remains, however, that the purchasers or recipients of the goods under the contract here, the agencies, did act within a reasonable time after delivery to complain of the nonconformance of the instruments. That is, the defects in the instruments were latent defects, not readily discernible upon delivery of the instruments to the purchasers and users because the instruments did operate as specified. The fact that they contained used parts and were re- manufactured instruments was not readily discernible without disassembling each unit. Thus, under the circumstances of this case, involving the latent nonconformance of the instruments, the rejection of the instruments by the agencies who happened to learn, at some time after delivery, that they were previously used instruments, must be deemed to have come within a reasonable time after delivery or tender. Notification of that fact by the agency to Southern was therefore seasonable./2 The defects involved in these instruments are not such that the personnel of the agencies should have discovered the nonconformance upon delivery because the nonconformance with the contract specification was not readily discernible to anyone who had no expertise in the manufacture and assembly of telephone instruments. The seller, Southern, was informed within a reasonable time after personnel of DGS, who did have expertise in such matters, discovered the nonconformance (when Mr. Houston's employee performed the inspections and evaluations of the instruments about which the agencies had raised questions.) Thus it is found that the "buyers", the agencies, did notify Southern within a reasonable time after they should have discovered the "breach".3/ Southern did not replace any other telephones as directed to by DGS except for those supplied to the University of North Florida. In response to some of DGS' letters, Southern did issue United Parcel Service "call tags" or "pick up orders" to some of the agencies. Southern provided no explanation of the purpose of these call tags to the agencies. It was not shown that all these agencies had knowledge that they had been supplied re-manufactured, as opposed to new telephones, upon the point of the receipt of these call tags. Southern received one telephone to exchange in response to these call tags. The agencies needed to have phones available to them and could not relinquish the nonconforming telephones and then be forced to wait on supply of new ones without phone service during the interim. Ultimately, DGS determined that Southern Communications should be held in default for failure to supply compliant equipment under the contract and noticed Southern of its intent to remove it from the approved bidders' list.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the Department of General Services removing Southern Communications Group, a division of Tabco Enterprises, Inc. from the State approved vendor list, until such time as that entity identifies and replaces all re-manufactured instruments which it sold under the subject contract or reimburses the Respondent for the costs of cover and re-procurement. DONE and ENTERED this 23rd day of October, 1989, at Tallahassee, Florida. P. MICHAEL RUFF 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 23rd day of October, 1989.
The Issue The issue presented is whether Respondent is guilty of the allegations in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent is a registered mechanical contractor, having been issued license number RM 14016953 by the Florida Construction Industry Licensing Board. He is licensed to do business as PRT Cool Service, Inc., license number QB 45554. The Miami-Dade County Building Code Compliance Office (hereinafter "Compliance Office") is responsible for licensing construction contractors who work within Miami-Dade County, Florida. To engage in a particular type of construction trade within Miami-Dade County, an individual is required to apply for and be issued a competency card from the Compliance Office. That Office has employees who can assist applicants with questions concerning the application and application process, including persons who speak Spanish. The Compliance Office licenses approximately 40 to 50 types of construction trades. These trades fall into two categories: "tested" or "non-tested." For trades within the tested category, an applicant must take and pass a written examination in order to be licensed. The refrigeration and air conditioning mechanical contractor trade falls within the tested category, and an applicant for licensure in that trade in Miami-Dade County must take an examination as part of the application process. The Code of Miami-Dade County does not permit substituting experience for that examination. To obtain a competency card in the refrigeration and air conditioning trade in Miami-Dade County, an applicant must first submit a completed application, a $315 application fee, personal identification, letters of experience, and a W-2 form to the Compliance Office. Upon receipt of those documents, the Compliance Office creates a physical file for the applicant, and the application is reviewed for deficiencies. If none are found, the applicant will be approved to take the examination. The Compliance Office then places the applicant's name on a roster as being exam-eligible, which roster is then sent to a private exam school to administer the examination. The Compliance Office also sends the applicant a letter advising that the applicant can take the exam and providing the applicant with contact information for the private school. The applicant is required to contact the private exam school to schedule and then sit for the exam. If the applicant passes the exam, the private exam school notifies both the applicant and the Compliance Office by letter. Upon being notified that an applicant has passed the exam, the Compliance Office then contacts the applicant to determine if the applicant chooses to work in an individual capacity or as a business. If as a business, the applicant is required to fill out a business application, provide the necessary forms to identify the business, and pay a $250 fee. The Compliance Office then reviews the business application and supporting documents and obtains a credit report directly from a reporting company. If the business application is approved, the Compliance Office notifies the applicant by letter and instructs the applicant to provide proof of liability insurance and worker's compensation coverage. Upon receipt of that proof, the Compliance Office issues to the applicant a competency card. In approximately August 2004, Respondent contacted the Compliance Office by telephone and requested an application for a refrigeration and air conditioning competency card and a State of Florida application for a registered mechanical contractor license. In that conversation he made specific inquiry regarding the examination he knew he was required to take to obtain the competency card. Respondent made no further contact with the Compliance Office concerning the application or the application process for the refrigeration and air conditioning competency card. Rather, Respondent went to a private business which advertised in Spanish that it could obtain licenses and insurance and gave an individual named Daniel the application forms he received from the Compliance Office for both the County's competency card and the State's registration thereafter. Daniel requested Respondent to bring him various financial documents and asked Respondent about his work experience. He did not translate the questions on the application forms for Respondent or go over the information in those forms. Daniel completed the applications. He did not go through the questions and answers with Respondent, but simply gave Respondent the documents to sign. Respondent did not inquire as to the contents of the applications or the information provided. He merely signed the applications and gave Daniel $2,000 in cash, the form of payment required by Daniel. When Daniel informed Respondent his competency card was ready, Respondent picked it up from Daniel. Respondent never submitted his application for the refrigeration and air conditioning competency card to the Compliance Office. Respondent never took the required examination for the refrigeration and air conditioning competency card. The Compliance Office has no record of Respondent applying for a competency card. The competency card Respondent received from Daniel was not issued by the Compliance Office. Respondent's refrigeration and air conditioning competency card is fraudulent. Following receipt of the competency card from Daniel, Respondent never contacted the Compliance Office to verify that he had satisfied all the requirements for the issuance of the card or that the card was valid. Rather, he submitted to Petitioner Department of Business and Professional Regulation his application for registration of that competency card in December 2005. A registration issued by the Department to an individual formally registers the competency card issued to that individual by a local government licensing board. An individual must be issued a registration by the Department before engaging in contracting services in the jurisdiction where that individual received a competency card. A registration will not be issued by the Department without a valid competency card from a local government licensing board. The competency card informs the Department that the individual has demonstrated the appropriate competence to engage in a particular construction trade as deemed by the local government licensing board through examination, experience, or a combination of those two requirements. A copy of an individual's competency card from a local government licensing board must be included with an application for registration. The Department has personnel who can assist applicants with questions concerning the application and registration process, including personnel who can assist persons who speak Spanish. Along with his application for registration, Respondent submitted a copy of his fraudulent refrigeration and air conditioning competency card. Included within the application for registration is a statement by the applicant attesting that the applicant has successfully completed the requisite education and experience. Because of the number of local government licensing boards in Florida and the varying requirements each imposes on the issuance of a competency card, the applicant has the burden of verifying his or her successful completion of all the requirements for the particular construction trade with the particular local government licensing board. The attest statement must be acknowledged, read, signed, and notarized. Respondent signed the attest statement, and his signature was notarized. At the time the Department received and processed Respondent's application, the Department had no knowledge that Respondent's refrigeration and air conditioning competency card was fraudulent and not issued by the Compliance Office. The Department, therefore, approved Respondent's application, and Respondent was issued a registration. Had the Department known Respondent's competency card was fraudulent, the Department would not have approved his registration. The total investigative costs, excluding costs associated with any attorney's time, incurred by the Department in this case are $32.66.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered revoking Respondent's registration, imposing an administrative fine of $5,000, and requiring Respondent to pay the Department's costs in the amount of $32.66 by a date certain. DONE AND ENTERED this 6th day of September, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 6th day of September, 2007. COPIES FURNISHED: P. Brian Coats, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2022 Yehuda D. Bruck, Esquire Law Offices of Schwartz & Associates 200 Southeast 1st Street Miami, Florida 33131 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether just cause exists to terminate the employment of Respondent with the Escambia County School Board (School District or School Board).
Findings Of Fact At all times material to these proceedings, Respondent was employed as a leaderman mechanic assigned to the Transportation Department. In this position, he was responsible for ensuring that mechanics properly completed their work and their records. Respondent's direct supervisor was Terry Orso. The Transportation Department is responsible for maintaining and operating the School District's fleet of school buses, as well as the support vehicles which are generally known as the "white fleet." The Transportation Department, including the garage for the maintenance of Petitioner's vehicles, is within the same building as the Parts Department. The Parts Department, however, is separated from the garage by a wall to ensure the security of the stocks of parts until these parts are turned over for installation in and the maintenance of Petitioner's vehicles. As a leaderman mechanic, Respondent initiated "Repair Orders," which were also known as "Work Orders," and completed part of a "Request for Materials," also known as a "chit" so that parts could be ordered from outside vendors and installed in Petitioner's vehicles requiring repair. The School District form known as a "Repair Order" requires information, including the vehicle number assigned by Petitioner, mileage of the vehicle, and the vehicle make and year. The form includes a section to identify the repairs to be made. The practice within the School District is to complete the top portion of the Repair Order when the vehicle is brought in for repairs with the identifying information. Each Repair Order has an identification number. The person completing the Repair Order is usually, but not always, a leaderman mechanic. Once the vehicle is repaired, the leaderman mechanic initials the form to confirm the correct repairs have been made and that the vehicle has been inspected. The initials of the leaderman mechanic are also written next to the identification number when all repairs are completed. When a vehicle has been brought to the Transportation Department for repairs, the Parts Department issues a chit. Once the chit is issued, an employee from the Parts Department, which is usually a leaderman mechanic, completes the upper left portion of the chit. This section identifies the vehicle, the date the request for materials is submitted, the initials of the mechanic submitting the request, the work order number, and the year and make of the vehicle brought in for repair. A Parts Department employee completes the upper right hand portion of the chit with information identifying the date the request for materials is received, the vendor that is contacted, the name of the person from whom the part is ordered at the vendor, and time of the estimated delivery of the parts. In 2007, Petitioner received information from one of its employees, John Bodie, that parts had been ordered from a vendor at the School District's expense for installation in a private vehicle. Mr. Bodie delivered a letter to the superintendent with copies of Transportation Department records attached. Petitioner initiated an investigation based upon the allegations of Mr. Bodie and the records he provided. Mr. Bodie alleged that he had been approached by Garage Manager Terry Orso to repair a vehicle owned by another employee, Ms. Diana Archer. Mr. Bodie claimed that, at Mr. Orso's request, he took Ms. Archer's vehicle, which was a 1988 Chevrolet Blazer, to his home to assess the needed repairs. He made a list of the parts that were needed to repair the Blazer's front end. Mr. Bodie alleged that, after he agreed to make the repairs, Mr. Orso told him the parts were on Lanny's (Respondent's nickname) desk. Mr. Bodie needed two additional brake calipers and alleged he was told by Mr. Orso that the parts would be ordered. Mr. Bodie received the additional parts and completed the repairs on Ms. Archer's Blazer. Ms. Archer paid Mr. Bodie for his services. Ms. Archer's statement was admitted into evidence without objection. She stated that Mr. Bodie repaired her Blazer and that she paid him for the work. She alleged that Mr. Orso told her "not to worry about the parts" and that the cost of the repairs would be $300.00-$350.00. Since Mr. Bodie admitted to being untruthful in an earlier investigation, Petitioner took extra care when attempting to corroborate his allegations. The investigation revealed that through Repair Order #22721 for School District vehicle #8667, a Chevrolet C-10 pick-up truck, parts were ordered for that vehicle, including parts for "front end repair." A chit was then completed for vehicle #8667 with a request for materials received June 2, 2005. The chit ordered "front end parts." The parts were ordered from a vendor First Call and received at Petitioner's Parts Department the same day. The parts ordered through Repair Order #22721 for vehicle #8667, the C-10 pickup, would not fit that vehicle. Those parts did fit a 1988 Blazer owned by Ms. Archer and repaired by Mr. Bodie. Repair Order #22721 bears the initials of Respondent as confirmed by Ms. Karen Nobles, a forensic document examiner. She noted that Respondent has a distinctive style of handwriting and that there was no question that he had initialed the Repair Order in question. To further corroborate Mr. Bodie's testimony, the School Board Auditor David Bryant was directed to check Petitioner's records to verify whether Mr. Bodie ordered the two calipers after initially receiving the parts to complete the repairs to Ms. Archer's vehicle. Mr. Bryant first checked the service records on vehicle #8667. Finding no calipers ordered in June 2005 for that vehicle, he checked a similar vehicle, #8691, another Chevrolet C-10 pick-up truck. Mr. Bryant located Repair Order #24674 dated June 7, 2005, indicating that brake repairs were needed, specifically "R and R both front brake calipers--flex lines." Respondent's initials were found on Repair Order #24674 indicating that the work was requested, inspected, and completed. The Repair Order corresponds with a chit for vehicle #8691, and the work order corresponds with the purchase order for the parts. Ms. Nobles, through forensic examination of these initials, verified that they too belonged to Respondent. The chit, however, was not completed in the normal manner. It was completed by a Parts Department employee identifying "Lanny" as the person requesting materials and that the "parts were ordered by White Fleet direct." The parts that were ordered were two calipers. As was the case with vehicle #8667, the parts that were ordered would not fit vehicle #8691, a Chevrolet C-10 pick-up truck, but would fit Ms. Archer's Blazer. Dr. Alan Scott, Assistant Superintendent, received a call from a mechanic telling him that Respondent and another mechanic, Robert Hutto, were planning to bring the C-10 pick-up truck into the garage to make it look as though repairs had been done to the front end of the truck. Dr. Scott and Mr. Bryant moved the truck into an area covered by surveillance cameras and then called the Sheriff's Department. The truck was secured by the Sheriff's Department and removed to its impound yard to be inspected by Sheriff's Department mechanics. Sheriff's Department employee, Louie Kemp, inspected Petitioner's C-10 pick-up truck and found that no new parts had been installed on its front end. Mr. Bryant's investigation concerning vehicle #8691 demonstrated not only that the brake parts ordered would not fit the C-10 pick-up truck, but that the same brake repairs had been reported as completed on the same C-10 pick-up truck three times in 2005: on February 16, June 7, and October 20. The State Attorney's Office reviewed the same evidence and determined not to further prosecute the case against Respondent, entering a Nolle Prosequi in the matter of State of Florida v. Andrew L. Mardesich, Circuit Court Case No. 1707CF005289B, for the reason that insufficient evidence existed to prove the charge beyond a reasonable doubt. Respondent does not know nor does he have any relationship with Ms. Archer. Respondent never spoke with Ms. Archer or anyone else about parts or repairs for her Blazer. Mr. Bodie acknowledged that he never spoke with Respondent about parts he needed to perform the work on Ms. Archer's Blazer; nor did Mr. Bodie obtain any parts from Respondent; nor was Respondent present when Mr. Bodie allegedly got the parts from Respondent's desk to repair Ms. Archer's vehicle. Mr. Bodie testified via deposition that he never personally observed Respondent involved with the purchase and installation of parts in Ms. Archer's car in any way. Mr. Bodie was not aware of any benefit Respondent may have received as a result of the work being performed on Ms. Archer's Blazer. Mr. Bodie's only involvement with the parts was through Mr. Orso, Respondent's supervisor, who told him about the job to be performed on Ms. Archer's vehicle and where to find the parts on Respondent's desk. Petitioner relied upon Mr. Bodie's statement to take action against Respondent and Mr. Orso for the ordering and installation of parts in Ms. Archer's vehicle. Respondent denies that he ordered or was ever asked to order parts that were installed in Ms. Archer's vehicle or any other non-School District owned vehicles. He denies ever ordering parts at the School District's expense and approving or installing them on vehicles not owned by the School District. Based upon Respondent's long work history with Petitioner, as well as his demeanor and candor in responding to questions at the hearing, the undersigned finds Respondent's testimony to be credible. Petitioner's records establish that parts were ordered using one vehicle number and installed in other vehicles owned by the School District. Petitioner's investigation documents establish that parts were not always ordered using the correct vehicle numbers. Respondent acknowledged that the ordering of parts using one vehicle number and installed in another vehicle owned by the School District was done when budget constraints forced a department to reimburse at a later date for services needed right away. Mr. Bryant, as well as other School District employees who looked into Transportation Department practices, expressed concern about this practice. Respondent acknowledged that as a leaderman mechanic, due to the busy work schedule in the garage, sometimes he took other mechanics at their word that the repairs had been performed and he would initial the work orders without a thorough, or even any, inspection of the work performed. Respondent never completed any work documents using the name "Lanny" or ordering any parts directly. Parts were ordered by the Parts Department. Respondent's usual way of initialing repair orders was with "A.M." The preponderance of the evidence presented at the hearing demonstrates that a scheme existed to order parts and perform work on non-District owned vehicles, in this case, a 1988 Chevrolet Blazer owned by one of Petitioner's employees, Ms. Archer. Mr. Bodie performed the repairs on Ms. Archer's vehicle using the parts ordered under the School District's account. Respondent did not knowingly sign repair orders or order parts for repairs on non-District owned vehicles, such as the Blazer owned by Ms. Archer. Prior to the investigation and notice of termination, Respondent had voluntarily entered the Deferred Retirement Option Program (DROP). Once he received notice from Petitioner that his employment would be terminated effective October 17, 2007, Respondent advanced his DROP exit and regular retirement to be effective October 17, 2007.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner, Escambia County School Board, rescind Respondent's termination and compensate him for his lost salary and benefits, including accrued retirement benefits, since the date of his termination on October 17, 2007. DONE AND ENTERED this 6th day of November, 2008, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2008. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Tom Wazlavek Union of Escambia ESP 6551 North Palafox Pensacola, Florida 32503 Emily Moore, Esquire Florida Education Association 300 East Park Avenue Tallahassee, Florida 32301-1700 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 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502-5782
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Lisa Shearer Nelson, an Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Respondent's notice of withdrawal. Accordingly, it is hereby ORDERED that this case is CLOSED and a license may be issued to Gas Sippers, LLC to sell motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG) at 6480 20th Street, #106, Vero Beach (Indian River County), Florida 32966 upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed October 15, 2009 3:39 PM Division of Administrative Hearings. DONE AND ORDERED this ;J? ay of October, 2009, in Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this _/;JJJ day of October, 2009. . 0..- .t.dmlnlstrallo NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF:vlg Copies furnished: John Dikov Valley Scooters, LLC 1687 Blythe Island Drive Brunswick, Georgia 31523 2
Findings Of Fact Findings regarding the ITB and its Addendums On or before May 11, 1995, the Department of Transportation issued ITB- DOT-95/96-9002, seeking a contractor to provide Statewide Full Service Repair and Support Under the Classifications of PC Maintenance, LAN Server Maintenance, and Novell LAN Support including All Parts and Labor Required for Inspection, Repair/Replacement of Defective, Missing or Worn parts. The ITB contained, inter alia, the following requirements in sections 1.5.1 and 1.5.2 regarding technical qualifications: GENERAL Bidders should meet the following minimum qualifications: Have been actively engaged in the type of business being requested for a minimum of two years. Be a certified Novell OEM Dealer, maintaining a certified Novell Support Center, and have at least three (3) certified Novell Engineers. RESPONSIVENESS OF BIDS When submitting the bid, each bidder should submit a written statement (FORM "E"), detailing their qualifications which demonstrate they meet the minimum qualifications contained in Subparagraph 1.5.1.1. Bidders failure to provide the above item(s) will constitute a non-responsive deter- mination. Bids found to be non-responsive shall not be considered. The ITB also contained the following requirements regarding the qualifications of key personnel in section 1.5.3: QUALIFICATIONS OF KEY PERSONNEL Those individuals who will be directly involved in the project should have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Department's Project Manager. Where State of Florida registration or certification is deemed appropriate, a copy of the registration or certificate should be included in the bid package. Form "E", referred to in the above-referenced portions of the ITB, provided, in pertinent part, the following: When submitting the bid, each vendor must furnish proof that he/she is capable of performing the work described in the attached specifications in a satisfactory manner. * * * The vendor shall provide the State with documented proof that the vendor is a certified Novel OEM dealer, maintains a certified Novell support center, and has at least 10 Certified Novell Engineers. On or about May 9, 1995, Bell Atlantic submitted certain questions to the Department, including the following: Bell Atlantic Business Systems intends to participate in the subject ITB. The following is a list of questions that need further clarification. * * * 2. FORM E: a. What form of documentation is the Department requiring as written proof that vendor is a certified Novell OEM dealer, Novell support center and has ten (10) Certified Novell Engineers? * * * c. Are the ten (10) required CNE's to be located in the state of Florida? In response to the questions raised by Bell Atlantic, the Department issued Addendum #1 to the ITB, which provided, in pertinent part, the following: FORM E Where it reads: The vendor shall provide the State with documented proof that the vendor is a certified Novel OEM dealer, maintains a certified Novell support center, and has at least 10 Certified Novell Engineers. Shall be changed to read as follows: The vendor shall provide the State with documented proof that the vendor is a certified Novell Authorized Service Center (NASC), maintains a certified Novell support center, and has at least 3 Certified Novell Engineers available in the State of Florida. At least one of the Certified Novell Engineer[s] must be available in the Tallahassee area. The terms "available in the State of Florida" and "available in the Tallahassee area" are not defined in the ITB or in the Addendums. Addendum 1 also affected the description of scope of services contained in Exhibit A to the ITB. This description is contained in Section 2.4.4.2, LAN Server Maintenance and Novell LAN Support. As initially issued, this section read: Novell certified personnel must respond within thirty minutes. If deemed necessary by the Department, vendor must dispatch adequately trained personnel to the site of reported problems within one hour of notification. The quoted section was changed by Addendum 1 to read as follows: Novell certified personnel must respond within thirty minutes by telephone. If deemed necessary by the Department, vendor must dispatch adequately trained personnel to the District Office sites (see Attachment A) of reported problem within one hour of notification. Vendor must dispatch adequately trained personnel to all remote locations not listed in Attachment A within four hours of notification. Attachment A, as referenced in this paragraph, identifies DOT district offices and other key offices at 14 locations in nine cities in Florida: Tallahassee, Lake City, Fort Lauderdale, Miami, Bartow, Chipley, Deland, Tampa, and Boca Raton. Section 2.4.4.2 does not specify that the "adequately trained personnel" who must be dispatched by the vendor to district office sites within one hour of notification must be CNE's. "Adequately trained personnel" does not necessarily mean CNE's, and CNE's are not necessarily required to perform LAN maintenance. DOT has used non-CNE's to service its LAN's. Section 1.15.1 of the ITB provides that the Department intends to award the subject contract "to the responsible and responsive bidder who bids the lowest cost. " To be responsive, bidders had to complete Form E, as stated in Section 1.5.2 of the ITB. The ITB did not require the bidders to include in the bid the residence addresses of any of the three required CNE's. One of the Departments main reasons for requiring bidders to demonstrate that they had at least three CNE's available in the State of Florida was the Department's belief that a bidder who met that requirement would probably be qualified to perform the subject contract. Facts regarding Kennsco's bid Kennsco submitted the lowest bid of the seven vendors bidding: $163,600.00. Kennsco's bid included the following language in the transmittal letter submitted as part of its bid: Kennsco has read, understands and accepts the terms and conditions of the Department's ITB. Kennsco currently has 4 CNE's, 1 of which is in his final phase of becoming a ECNE. Kennsco is a authorized service center and is a authorized Novell Dealer. In response to the requirements of sections 1.5.1, 1.5.2, and Form E, Kennsco attached to is bid the CNE certificates of the following individuals: Steve Deal Allan Sellers C. Mark Robinson David R. Dremann, Jr. Kennsco did not include any information in its bid regarding where these four individuals lived or worked. Messrs. Deal, Sellers, and Dremann are residents of St. Louis, Missouri, and work out of Kennsco's offices there; Mr. Robinson is no longer employed by Kennsco, but at the time of the submission of Kennsco's response Mr. Robinson was a resident of Minnesota and worked out of Kennsco's offices in that state. On June 14, 1995, the Department posted its decision of intent to award the contract to Kennsco, and Bell Atlantic timely filed its Notice of Intent to Protest. On June 26, 1995, Bell Atlantic timely filed its Formal Written Protest regarding the instant ITB alleging, inter alia, that the CNE's whose certificates were attached to Kennsco's bid were not available in Florida and not even one was available in Tallahassee as required by the ITB. Shortly after receipt of Bell Atlantic's Formal Written Protest, a conversation occurred between Mr. Oscar Arenas, of the Department, and Greg Blanc, representative of Kennsco. That conversation resulted in correspondence of June 26, 1995, which provided as follows: As per our telephone conversation on June 26, 1995, regarding the availability of Novell Certified Network Engineers (CNE). Kennsco Engineering Services, Inc. has a minimal of one CNE available to serve the Department of Transportation on-site in Tallahassee within one hour of notice, and has four CNE's that are available to work in any area of Florida. In addition to this Kennsco has two other engineers that will be certified within the next 60 to 90 days, and one of our current engineers is one test away from becoming a ECNE. The names and location of these CNE are as follows: Mr. Mark Hansel - Tallahassee Mr. John Strobel - Tallahassee Mr. Mike Deshazo - Tallahassee, also a Banyan Certified Engineer Mr. Orlando Cone - Orlando The names submitted by Kennsco in its conversation and correspondence of June 26, 1995, (Hansel, Strobel, Deshazo, and Cone) are different from those submitted with the bid documents (Deal, Sellers, Robinson and Dremann). Messrs. Hansel, Strobel, Deshazo and Cone do not work for Kennsco, but work for other companies. Kennsco proposes to arrange for their services through subcontract agreements. Kennsco has never submitted any certificates evidencing the qualifications of Messrs. Hansel, Strobel, Deshazo and Cone. Facts regarding Bell Atlantic's bid Bell Atlantic submitted the second-lowest bid, $301,180.00. Bell Atlantic's bid included the following language as part of its response to the requirements of Form E: Bell Atlantic understands and will comply with the above requirements [the requirements printed on Form E] throughout the contract period. As requested above, we have provided the proof of our capabilities of performing the work described in the ITB document in a satisfactory manner on the following pages. In further response to the requirements of Form E, Bell Atlantic also included the following language in its bid: Bell Atlantic has included herein documented proof that Bell Atlantic a certified Novell Authorized Service Center (NASC), maintains a certified Novell support center, (please reference Exhibit A, letter from Novell Corporation); and has at least 3 Certified Novell Engineers available in the State of Florida. At least one of the Certified Novell Engineers is available in the Tallahassee area, (please reference Exhibit B for the Novell Certificates/letter/Identi- fication Number of certified field engineers.) All Bell Atlantic personnel represented herein, have been actively engaged in the type of business being requested for a minimum of two years. These individuals, who will be directly involved in the project, have demonstrated experience in the areas delineated in the scope of work. These individuals whose qualifications are presented herein will be committed to the project for its duration unless otherwise excepted by the Department's Project Manager. Bell Atlantic also included with its bid four CNE certificates of CNE's available in Florida, at least one of which was also available in the Tallahassee area. Facts regarding other matters After opening the bids, the Department reviewed Kennsco's bid and concluded that it was responsive. Among the factors that influenced the Department's conclusion in this regard was the language in the Kennsco bid reading: "Kennsco has read, understands and accepts the terms and conditions of the Department's ITB." Kennsco's use of CNE's other than those identified in its bid would not affect the price the State would pay for Kennsco's services. The ITB did not prohibit the use of subcontractors, nor did it require that the CNE's who perform services under the contract be employees of the contractor. The CNE's who were to be available in Florida were the only personnel for whom the bidders were required to submit evidence of qualifications.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Transportation issue a Final Order in this case concluding that the bid submitted by the Intervenor Kennsco Engineering Services, Inc., was not responsive to the requirements of ITB-DOT-95/96-9002 and either awarding the subject contract to the lowest responsive bidder or rejecting all bids and readvertising for bids with improved bid specifications. DONE AND ENTERED this 28th day of November 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of November 1995. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties. Proposed findings submitted by Petitioner: Paragraphs 1 through 5: Accepted. Paragraph 6: Rejected as unnecessary summary of testimony or as subordinate and unnecessary details. Paragraphs 7 through 16: Accepted in whole or in substance, with some small modifications in the interest of clarity. Paragraph 17: Rejected as subordinate and unnecessary details or as irrelevant to the dispositive issues in this case. Paragraph 18: Accepted. Proposed findings submitted by Respondent: Paragraphs 1 through 5: Accepted. Paragraph 6: Rejected as not supported by persuasive competent substantial evidence. While there was testimony to the effect proposed in this paragraph, that testimony was not persuasive, largely because it is illogical in view of the manner in which the word "available" is used in Addendum #1. Paragraph 7: Rejected as not completely accurate. The Department's witnesses testified to the effect that the Department interpreted the ITB as not requiring the CNE's to reside in Florida at the time the bids were submitted. That interpretation is inconsistent with the plain language of the ITB and Addendum #1. Paragraph 8: Accepted, but with additional facts to put this fact into proper context. Paragraph 9: Accepted in substance. Paragraph 10: Rejected as either subordinate and unnecessary details or as irrelevant to the issues in this case. Paragraphs 11 through 19: Accepted in whole or in substance. Paragraph 20: Rejected as not completely accurate. While Bell Atlantic did not state the addresses of its CNE's, it did state that they were all available in Florida and that one was available in Tallahassee. Paragraphs 21 and 22: Rejected as subordinate and unnecessary details or as irrelevant to the issues in this case. Paragraphs 23 through 31: Accepted in whole or in substance. Paragraph 32: Rejected because it reflects a Department interpretation of the ITB and Addendum #1 that is contrary to the plain language of those documents. Proposed findings submitted by Intervenor: Paragraphs 1 through 3: Accepted. Paragraph 4: First sentence is accepted in substance. Second and third sentences rejected as argument about the meaning of language in the ITB and Addendum #1. Last sentence rejected as subordinate and unnecessary details or as irrelevant to the issues in this case. Paragraphs 5 through 8: Accepted in substance. Paragraph 9: Rejected as subordinate and unnecessary details or as irrelevant to the issues in this case. Paragraph 10: First three sentences accepted in substance. Last sentence rejected as constituting a "non-fact" based on the absence of evidence. (Absence of proof of inability is not evidence of ability.) Paragraph 11: Rejected as a combination of subordinate and unnecessary details and argument. Paragraph 12: First and second sentences rejected as contrary to the language of the ITB and its Addendums. Third and fourth sentences rejected as subordinate and unnecessary details or as irrelevant to the issues in this case. Paragraph 13: Rejected as argument about subordinate details, some of which argument is inconsistent with the language of the ITB and its Addendums. Paragraph 14: Accepted in part and rejected in part. Accepted that Kennsco's use of other CNE's would not affect the price to the State. However, exempting Kennsco from requirements of the ITB and its Addendums would give Kennsco an advantage over other bidders and would be adverse to the State's interest in maintaining the integrity of the bidding process. COPIES FURNISHED: Gregory P. Borgognoni, Esquire Ruden, Barnett, McClosky, Smith 701 Brickell Avenue, Suite 1900 Miami, Florida 33131 Thomas H. Duffy, Esquire Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0458 M. Christopher Bryant, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building Attn: Diedre Grubbs, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
