The Issue The issue is whether Petitioner is entitled to credit for the answer given in the General Contractor Examination, Contract Administration, Question No. 3, thus improving his grade and allowing him to pass the examination.
Findings Of Fact Petitioner, a candidate to be licensed as a general contractor in Florida, took the General Contracting Examination on June 29 and 30, 1993. The examination instrument was prepared by the National Assessment Institute through an agreement with Respondent to prepare and deliver the examination to determine minimal competence of candidates as a perquisite to licensure in the field of general contracting in Florida. The examination that was given was constituted of two parts. Part I was Contract Administration. Part II was Project Management. To be a successful candidate one must have scored a minimum grade of 70 on each part. Petitioner received a score of 67 in the Contract Administration part of the examination. Petitioner has challenged the score received on Question No. 3 within that part. If his challenge is successful he will have passed that part and the overall examination. Respondent's Exhibit No. 1 contains the examination question, possible answers, correct answer and solution to the problem. To assist Petitioner and other candidates in preparing for the examination Respondent provided a candidate information booklet. The candidate information booklet explained the subject matter about which the candidates would be examined, the purpose of examination and the method of grading the examination. In addition Petitioner and other candidates were provided a general building and residential building reference list to assist in answering the questions in the examination instrument. Finally, the candidates were reminded that some questions were based upon field experience and knowledge of trade practices within the construction business. Having in mind the preparatory information, Petitioner believes the correct answer to Question No. 3 is (D), whereas the answer called for in the examination instrument is (C). Petitioner places emphasis on the belief that field experience and knowledge of trade practices would have caused the candidate to conclude that (D) was the proper answer. Moreover, Petitioner has placed emphasis on the means the Respondent employs to ascertain the propriety of the examination challenge. Those factors are in turn: Was the item clearly and unambiguously worded? Was enough information presented to allow you to select the correct response? Did approved reference materials support the correct response? Were all current techniques taken into account when the correct response was determined? Did responding correctly to the item require knowledge which was beyond the scope of knowledge that should be expected of the candidate for licensure? With this information as the background Petitioner has also included his drawings within Petitioner's Composite Exhibit No. 1, which Petitioner describes as "what went on in Petitioner's mind after reviewing said examination question", considered in the context of associated examination drawings and specifications provided to assist in the solution and as found in Respondent's Exhibit No. 2. The examination question at issue referred the candidate to the drawings and specifications found in Respondent's Exhibit No. 2. The candidate was then directed to prepare formwork to substitute concrete for concrete masonry in elevator shaft walls depicted in the drawings and specifications. The candidate was told the labor cost per square foot for erecting forms for the "concrete contact surface area". The candidate was reminded of the dimensions of the formed openings for the elevator door. The candidate was told to assume that the form work abutted boxed columns located at the intersections of certain grid lines and to deduct measurements for door openings and to include forms for door jams and headers. With these assumptions in mind the candidate was provided four possible answers as the labor costs to erect the forms for the elevator shaft wall between the finished second and third floor elevations. To arrive at the solution the candidate need only perform mathematical calculations consistent with the instructions. The correct answer is depicted in the solution to Question No. 3 found in Respondent's Exhibit 1. By performing the proper calculation, the correct answer is (C). The question was unambiguous and the solution obvious. Nothing in the question or the pre-examination explanations made from Respondent to Petitioner called for reference to the fire code in arriving at the answer to Question No. Therefore, it was inappropriate for Petitioner to try and calculate the answer by attempting to ascertain the appropriate material for boxing the column associated with the elevator shaft taking into account fire code requirements. Petitioner assumed the necessity to utilize fire retardant materials to encase the boxed column located at the intersection of grid lines D and 3 as the column abutted the formwork that was described in the problem. Placement of fire retardant material around the column was not necessary and contributed to Petitioner's miscalculation of the answer to the question. Moreover, in Petitioner's calculation, contrary to the instructions which said to assume that the form work abutted the boxed column at the intersection of grid lines D and 3, Petitioner made his calculations along the centerline and not as these surfaces abutted. This meant that the lineal footage determination should have been 35 and not 36 as calculated by the Petitioner. Petitioner also calculated by using two headers and two jams pertaining to the doorway on the second floor to the elevator. Only one header was required in that the bottom of the doorway was not an area where concrete was being poured which would require a form to hold the concrete in place while it was being poured. This caused the Petitioner's measurement to be 23 feet instead of the anticipated 19 foot measurement. In summary, it is the attempt to try and develop an answer which takes into account the fire code in boxing the column and the other errors in calculation specifically referred to here that led the Petitioner to obtain the incorrect answer.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which dismisses the Petitioner's challenge to the examination results and upholds the determination that Petitioner did not pass the General Contractor's Licensing Examination given on June 29 and 30, 1993. DONE and ENTERED this 24th day of March, 1994, in Tallahassee, Florida. CHARLES C. ADAMS 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 24th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6616 The following discussion is given concerning the proposed findings of fact: Petitioner's Facts: Paragraphs 1 through 9 are subordinate to facts found. Paragraphs 10 through 57 are rejected as they attempt to justify the Petitioner's choice of answers to Question No. 3 in the examination instrument. Respondent's Facts: Paragraphs 1 through 5 are subordinate to facts found. Paragraph 6 constitutes legal argument. Paragraphs 7 and 8 are subordinate to facts found. COPIES FURNISHED: Thomas A. Centola, Jr. 532 Ponte Vedra Boulevard Ponte Vedra Beach, Florida 32082 Vytas J. Urba, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard Hickok, Executive Director Construction Industry Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The primary issue for determination is whether the bid of Intervenor, in response to Respondent's invitation to bid, is non-responsive. Secondary issues to be resolved include Petitioner's legal standing to protest all recommended awards to Intervenor in all the bid's categories where intervenor was deemed the successful bidder; whether Intervenor is an operational division of a corporation authorized to conduct business within the State of Florida; whether Intervenor satisfied bid requirements for submission of a valid manufacturer's certificate; and whether intervenor satisfied bid requirements involving identification of a service coordinator and provision of a list of service representatives in the State of Florida for the computer equipment which is the subject of the bid.
Findings Of Fact Respondent issued an Invitation To Bid (ITB) for microcomputers, Bid No. 129-250-040-B, on February 19, 1990. The ITB was revised by a March 22, 1990 addendum which established April 9, 1990, as the date for opening bid responses with bid tabulations to be posted on May 7, 1990. The purpose of the ITB was to establish a twenty-four (24) month contract for the purchase of microcomputers and equipment by all State of Florida agencies and other eligible users. Political subdivisions of the State of Florida, as well as state universities, could exercise the option of purchasing from the contract, if they so desired. The ITB invited bids in several categories of microcomputer equipment. Petitioner's timely filed written protestaddresses 17 of those categories where Intervenor was determined by Respondent to be the successful bidder. Those categories are numbered 255, 256, 257, 258, 259, 260, 266, 267, 268, 269, 271, 272, 273, 275, 276, 277, and 278. However, the bid tabulation posted by Respondent on May 7, 1990, establishes that Petitioner was the next lowest bidder in only four of the 17 categories. Those four categories are 266, 267, 268, and 269. In accordance with Paragraph 13 of the ITB general conditions, all corporations responding to the ITB were required to be registered with the Florida Department of State and authorized to transact business in the state in accordance with requirements of Chapter 607, Florida Statutes. Further, such bidders were required to insert their corporate charter number, resulting from that registration, in the appropriate space in the bidder acknowledgement form provided by Respondent for inclusion in responses to the ITB. Intervenor provided the Department of State Corporate Charter No. 822327 in the bidder acknowledgement form submitted with its response to the ITB. That charter number is assigned by the Department of State to VGC Corporation d/b/a VGC Corporation of Delaware, a corporation organized under laws of Delaware and authorized to transact business in the State of Florida since 1969. Intervenor mistakenly listed, in its bid, the federal employment identification (FEID) number of another subsidiary corporation of VGC Corporation (VGC). The FEID number submitted by intervenor was that of Graphic Arts Supply, Inc., (GAS), acquired by VGC in December of 1986. GAS became a wholly owned subsidiary of VGC at that time and remains such at the present time. At the time of its acquisition, there existed within GAS a particular segment of that business which dealt primarily with computer products. This computer segment of GAS was set up by VGC as a separate division of the parent corporation in November, 1988. The formation of the new division within VGC was announced at that time by the VGC president in an interoffice memorandum which stated in pertinent part: The Computer Products Group of Graphic Arts Supply has grown significantly in the last several years, accounting for approximately 10% of the total corporation's sales. The growth opportunities in this area are enormous and our long term goal is to become one of the major material distributors of computer products in the United States. Accordingly, I am pleased to announce that we will make this operation a separate division, reporting to Tom Mclaughlin. At the time of the issuance of the November 1988 interoffice memorandum, Tom Mclaughlin was a vice-president and subsidiary manager of VGC corporation. Another individual, Pat Mclaughlin, was a VGC vice-president and general manager of the new division, the intervenor in this cause. Another memorandum issued by the VGC president on September 14, 1989, further emphasized that VGC's Business Systems Division, which is also intervenor, was an operating division of VGC. That memorandum stated that the company comprising the Business Systems Division was known as "GA Computer Systems" and further provided in pertinent part that: The Business System Division is an operating unit and not a subsidiary. The Business Systems Division relies on VGC-Rochester for financial and administrative support, and VGC-Florida for all other support and reporting. On the date of Intervenor's response to the ITB, GAS and Intervenor continued to maintain a business relationship. Pursuant to that relationship, GAS provides certain administrative services to Intervenor in the form of certain record keeping and payment of various taxes in the state of New York. Intervenor pays a fee to GAS for these services. Other administrative functions, such as federal and state tax return preparation, are performed by VGC-Rochester and VGC-Florida, other components of VGC. Intervenor's response to the ITB was submitted and signed by John J. Piseck, an employee of VGC who serves as the eastern regional sales manager for Intervenor's computer products. Another of the ITB's general conditions requires that bids from non manufacturers to provide microcomputers must be accompanied by a certification from the manufacturer that the bidder is an authorized representative of the manufacturer. The certification submitted by Intervenor with its bid response was executed by a representative of Hewlett-Packard Corporation, the computer manufacturer, certifying that GA Computer Products is an authorized dealer/representative. On the date of Intervenor's response to the ITB, adealer/representative contract existed between Intervenor and Hewelett-Packard. The agreement was signed on Intervenor's behalf by Patrick Mclaughlin, VGC vice- president and general manager of Intervenor. Page 12 of the ITB special conditions provides in pertinent part that: The bidder shall name a service coordinator and provide a complete list of in-state representatives, and manufacturer's authorized service repair centers on page 19 as part of the bid response. In the course of fulfilling its responsibility to evaluate each vendor's response to the ITB, Respondent accepted either a list of the bidders' own in-state representatives or a list of the manufacturer's in-state representatives as meeting this service requirement of the ITB. Respondent does not, and is not required to, verify information supplied by vendors relating to service locations. Intervenor has fully complied with the ITB requirement relating to naming a service coordinator and providing a list of service representatives and repair centers. Specifically, Intervenor named one of its employees as the service coordinator, provided a toll-free telephone number for communication with the coordinator, and listed five Hewlett-Packard service locations within the State of Florida. These service locations honor the warranties of the manufacturer, Hewlett-Packard, without regard to which Hewlett-Packard dealer sold the product. Intervenor was responsive in all material respects to Respondent's ITB No. 129-250-040-B.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that upon Intervenor's submission of a corrected FEID number, a Final Order be entered denying Petitioner's claims and confirming the award of the contested 17 categories of Respondent's ITB No. 129-250-040-B to GA Computer Products, a division of VGC Corporation. DONE AND ENTERED this 23rd day of July, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 July, 1990. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. Petitioner's proposed findings consisted of 32 pages encompassing unnumbered paragraphs dealing with an intertwined mixture of legal conclusions, argument and proposed factual findings. Therefore, Petitioner's submission cannot be treated by the Hearing Officer in this appendix on an individualized basis for each proposed finding. However, Petitioner's submission has been reviewed and addressed, where possible, by the findings of fact set forth in this recommended order. Otherwise, all disputed issues of material fact have been addressed by the evidence adduced at the hearing held in this cause. Intervenor's Proposed Findings. 1.-32. Adopted in substance. Respondent's Proposed Findings. 1.-2. Adopted in substance. 3.-4. Rejected, unnecessary. 5.-24. Adopted in substance. 25.-27. Rejected, unnecessary. 28. Adopted in substance. COPIES FURNISHED: Thomas F. Morante, Esq. One Biscayne Tower Suite 3750 Two S. Biscayne Boulevard Miami, FL 33131 Susan Kirkland, Esq. Jim Bennett, Esq. Office of General Counsel Department of General Services Suite 309 Knight Building 2737 Centerview Drive Koger Executive Center Tallahassee, FL 32399-0950 Lowell L. Garrett, Esq. 5300 Southeast Financial Center 200 S. Biscayne Boulevard Miami, FL 33131 Ronald W. Thomas Executive Director Knight Building Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950
The Issue This matter is a bid protest filed by STATEWIDE challenging the DEPARTMENT's decision to award a contract for service of process services to All American Legal Service, Inc., (herein after All American). The DEPARTMENT's position was chat a company could meet the two years of experience in serving legal process requirement if key personnel had at least two years of experience. All American was the lowest bidder on ITB-DOT-95/96-9003. STATEWIDE was the second-lowest bidder. STATEWIDE protested, claiming the DEPARTMENT should have rejected All American's bid on the grounds that All American did not have two years of experience and had not identified its key personnel or provided the DEPARTMENT with copies of circuit court issued certifications to serve process. During the formal hearing on October 23, 1995, testimony was received that All American is the corporate successor of a firm that was formed approximately 23 months prior to the bid being submitted and had as part of its organization an independent contractor, Robert Simmons, who was a licensed process server and who lacked two years of experience in serving process at the time the bid was submitted. All American also retained the services of the founder and former owner, Jon C. Martin, to act as an advisor. Mr. Martin lacked two years of experience in serving civil process at the time the bid was submitted. The DEPARTMENT offered testimony that it did not require the bidding entity to have been in existence for more than two years so long as the company had employees (either direct employees or independent contractors) with the requisite experience. DEPARTMENT officials also testified that no personnel were considered key personnel by the DEPARTMENT. DEPARTMENT'S EXCEPTIONS TO RECOMMENDED ORDER The DEPARTMENT's first exception is rejected as irrelevant. The DEPARTMENT's remaining exceptions are rejected and need not be individually reached inasmuch as the conclusion of this Order is chat a decision to waive the two years of experience requirement in the bid documents would be an abuse of discretion. To describe a requirement as so essential as to require no consideration of the bid when it is not met, and later construe the bid documents as allowing waiver of the requirement is, by definition, without reason and arbitrary
Findings Of Fact The DOT issued ITB-DOT-95/96-9003 (the ITB) soliciting bids from contractors to provide for one year on an as-needed-basis to its General Counsel all services necessary to effectuate service of process, service of subpoenas, and service of other papers statewide in accordance with the applicable laws to be submitted on August 16, 1995. AALSI submitted the lowest bid for the ITB. Statewide submitted the second lowest bid for the ITB. Section 1.5 of the ITB, Joint Exhibit 1, stated as follows: 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. When submitting the bid, each bidder shall submit a written statement, (FORM D), detailing their qualifications which demonstrate they meet the minimum qualifications contained in Subparagraph 1.5.1.1. Bidders' failure to prove the above item(s) will constitute a non-responsive determination. Bids found to be non-responsive shall not be considered. (Emphasis in original.) A representative of the DOT testified and both parties agree that the word "should" in the provision above is mandatory and in context means "shall." It was important to DOT that bidders have at least two years experience in the business of serving process, and DOT intended to reject any bids which did meet this requirement. Exhibit "A" to the ITB, "Scope of Services," Section B.1, "Services Required," and B.5, "Who Shall Provide Services," provided respectively that: B.1 Services Required The contractor shall provide all services necessary to effectuate service of process, subpoenas and other papers throughout the state of Florida, and shall provide such services in accordance with the laws of the state of Florida. . . B.5 Who Shall Provide Services Services shall be provided by individuals in compliance with Chapter 48, Florida Statutes, and other applicable law. Section 48.29, Florida Statutes, requires that persons serving process be certified by the chief judge of each judicial circuit. The business being requested, as the term is used in the ITB, is all services necessary to effectuate service of process, subpoenas, and other papers throughout the State of Florida for civil actions in accordance with the laws of the State of Florida. No evidence was received that the DOT is involved with the service of arrest or search warrants. Paragraph 1.5.2, "Qualifications of Key Personnel," provides that: 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 of certificate should be included in the bid package. The ITB required that a bidder demonstrate that its key personnel had experience in providing all services necessary to effectuate service of process, subpoenas, and other papers throughout the State of Florida in accordance with the law. Form D asked bidders to answer the following questions: How many years has your business been serving process? In what counties are your currently serving process? Describe your current capabilities to serve process in the State. If you do not have the current capability to serve process in all counties of the State of Florida, describe the changes that you will make in order to be able to serve process in all counties. Describe the means by which your business would accomplish routine services of process on a statewide basis under the Scope of Services of the Invitation to Bid. Describe the means by which your business would accomplish priority service of process on a statewide basis under the Scope of Services of the Invitation to Bid. The ITB contained a provision which permitted it to waive minor informalities or irregularities in bids received which were a matter of form and not substance. The requirement that the bidder have two years experience is not, under the terms of the ITB, a waivable provision, but was part of the essential minimal requirements which the bidder must have. In response to the first question on Form D, AALSI responded: All American Legal Service, Inc. and its predecessor firm, Jon C. Martin & Associates, have been in business over two years and provides nationwide service for its existing clients. DOT accepted the representation of AALSI in evaluating whether it possessed the required two years of experience, and concluded AALSI was qualified. DOT also evaluated the other responses by AALSI to Form D to assess its approach to providing the scope of work required by the ITB, and concluded it was qualified. Evidence presented at hearing revealed that Jon C. Martin, a former law enforcement officer, had begun a private investigation business as a sole proprietorship in September, 1993. Mr. Martin, who testified at hearing, found that it was more profitable to serve process than to conduct investigations, and changed the emphasis of the business; however, Mr. Martin was not personally authorized to serve process nor did he serve any process until May, 1994, although he had served arrest warrants as a law enforcement officer. Mr. Martin used the services of qualified process servers to serve process in the central Florida region; however, these personnel were not employees of Martin. Mr. Martin was a member of the National Association of Professional Process Servers (NAPPS), whose members are qualified to serve process; and Mr. Martin used this service to find the names of persons qualified to serve process in those counties and jurisdictions in which he did not have employees or contract personnel. Mr. Martin changed the name of his business to All American Process, and ultimately incorporated under that name. Mr. Martin sold All American Process in May, 1995 to Andrew Forness and Forness' father, who changed the name of the corporation to All American Legal Service, Inc. Mr. Martin agreed to be an unpaid advisor/consultant to Mr. Forness after the sale. Mr. Forness has virtually no experience as a process server, and had never been qualified to serve process or served process until after May, 1995. Mr. Forness is dependent upon Robert Simmons, an independent contract process server, for daily advice on service of process. Mr. Forness has continued to use the network of personnel used by Mr. Martin, who are not employees of the business, and NAPPS to serve process. The business does employ two full-time, paid certified process servers, who reside and work in central Florida area. One of these employees, Noah Medeiros, was first authorized to serve process in Orange County in September 1995, and is not authorized to serve process in any other county in Florida. No information was provided on the other employee. Mr. Forness did not identify anyone as a key individual in the bid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That DOT not award the bid to AALSI which was determined to have been a nonresponsive bidder, and that it consider awarding the bid to the next lowest, responsive bidder, Statewide. DONE and ENTERED this 18th day of December, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 18th day of December, 1995. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-5035BID Both parties submitted proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Recommended Order Findings Paragraphs 1,2 Paragraph 1 Paragraph 3 Paragraph 2 Paragraph 4 Paragraph 3 Paragraph 5 Paragraph 4 Paragraphs 6,7 Paragraph 5 Paragraph 8 Paragraph 6 Paragraph 9 Paragraph 8 Paragraph 10 Paragraph 9 Paragraph 11 Paragraph 6 Paragraph 12 Conclusion of Law Paragraphs 13,14 Subsumed in Paragraph 13 Paragraphs 15-20 Subsumed in Paragraphs 16-18 Paragraphs 21-26 Subsumed in Paragraphs 18-19 Paragraph 27 Subsumed in Paragraphs 7,8 Paragraph 29 Ultimate finding Paragraph 30 Paragraph 14 Paragraph 31 Irrelevant Paragraph 32 Ultimate finding Respondent's Recommended Order Findings Paragraph 1,2 Subsumed in Paragraph 1 Paragraph 3 Paragraph 4 Paragraph 4 Paragraph 5 Paragraph 5 Paragraph 11 Paragraph 6 Subsumed in Paragraph 5 Paragraph 7 Subsumed in Paragraph 12 Paragraph 8 Not necessary Paragraph 9 Paragraph 13 Paragraph 10,11 Subsumed in Paragraph 14 Paragraph 12-16 Irrelevant or argument Paragraph 17 Paragraph 9 Paragraph 18-25 Irrelevant or argument Paragraph 26,27 Subsumed in Paragraphs 2,3 Paragraph 28-33 Subsumed in Paragraph 16 Paragraph 34-41 Subsumed in Paragraph 19 COPIES FURNISHED: J. Layne Smith, Esquire 2804 Remington Green Circle, Suite 4 Tallahassee, FL 32308 Thomas H. Duffy, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
Findings Of Fact The Petitioner, James Ilardi, was an unsuccessful candidate for the June, 1989 General Contractor's Construction Examination in the State of Florida. He is an experienced contractor and is licensed in the State of South Carolina. He is the past President of the Charleston Contractor's Association in South Carolina. He has experience with most types of building construction, including office buildings, military facilities, hospitals, factories and other large projects. He served as Chief Executive Officer for a design and construction firm for a period of ten years. The Respondent is an agency of the State of Florida charged with administering the certified general contractor's examination and with regulating the licensure and practice of construction contractors in the State of Florida. The Petitioner sat for the certified general contractor's examination in June, 1989. He has challenged the scoring of his answers to questions 2, 11, 12, 17, 19 and 33 on that examination. During the course of the hearing, he abandoned his challenges to questions 2, 17, 19 and 33. If he were accorded correct answers to either of the remaining challenged questions, numbers 11 or 12, he would have a sufficient score to obtain a passing grade of 70 on that examination. Both questions 11 and 12 used a "critical path network diagram" for use in working out the correct answer to the questions. The Petitioner criticized the diagram as being obscure, difficult to read and containing error. He maintained that it was not supported by the representations found in the reference materials recommended by the Respondent, in its "Instructions to Candidates", as being the material to use to arrive at answers to the questions. The Petitioner contends that the size of the diagram, "the multiple fonts, the difference in the intensity of the print, and the use of symbols all contribute to the obscurity and illegibility of the diagram, itself". In particular, he complains that the symbol listing includes a symbol which he did not find on the diagram. That is, the symbol for "structural steel" and "steel bar joists, which is two straight vertical parallel lines. He also complains that general practice in the construction industry, in his experience, and as indicated in the reference work "Construction Contracting", pages 325-326, one of the references listed for candidates to use in answering these questions, recommends against the use of symbols in lieu of abbreviated notations for description of activities on such a diagram. The main complaint he had concerning the use of symbols, however, was the fact that use of symbols, and having to constantly defer to the symbol legend on the exam materials, was time-consuming and was not generally accepted industry practice or procedure. He contends that the diagram contains error or is obscure and does not conform to the Respondent's recommended reference materials nor to industry standards and. is deficient in format, design and reproductive quality. Thus, he maintains that questions 11 and 12 do not adequately test the knowledge or skills necessary for licensure as a general contractor. The Petitioner acknowledged that the questions at issue had been reviewed twice by the Respondent's examination content specialist and that an "item analysis and review process" by the Respondent's expert resulted in the Respondent maintaining its position that the two questions and supporting materials were valid in fairly testing the knowledge of general contractor licensure candidates. In summary, the Petitioner contends that as to question 11, the symbol for steel bar joists, the two parallel vertical lines, does not appear on the diagram; therefore, he was unable to determine whether his answer was correct or not. As to question number 12, he maintains, in essence, that the use of symbols instead of brief abbreviated descriptions of the activities involved, accompanying the arrows in the diagram which indicate the critical path for the activity in question (paint work), render answering the question confusing and time consuming in having to constantly refer to the symbol legend and look for the symbols. He states that, in his 20 years of construction industry experience, he has not had to use symbols in working with a critical path diagram. The Petitioner did not demonstrate, however, that the use of symbols was incorrect procedure as delineated in the reference materials supplied to the candidates and which they were instructed to use in answering the questions on the examination. The Respondent produced the testimony of Mr. Olson, a Florida certified general contractor, who is also employed with the National Assessment Institute which developed this examination. Mr. Olson, however, did not, himself, have a hand in developing the examination. Mr. Olson did, however, review the Petitioner's challenges to the questions at issue and his responses, reviewed questions 11 and 12, as well as the Respondent's asserted correct answers to those questions and the methodology used in reaching those answers. Mr. Olson established that this was an "open-book" examination and the candidates were informed of and supplied all necessary reference materials to answer these two questions. The only optional consideration was that candidates could have used a calculator to speed up their calculations and were informed that it was permissible to use a calculator. Question 11 required candidates to calculate the total time necessary to install structural steel and steel bar joists in interpreting the activity network represented by the diagram in question. They were asked to calculate whether the installation was ahead of schedule or behind schedule and by how much. Mr. Olson established that the correct response was "C", which is two days behind schedule. Mr. Olson demonstrated that it was quite possible for a candidate to make this calculation and track this in formation on the diagram provided the candidates, through reading the path with the symbols, which alphabetically represent the activity, and which are numerical in representing the time in days. He established that this is very typical of the construction industry, related to the preparation, reading and interpreting of blueprints. A tremendous amount of symbols and legends are typically used in preparing and interpreting blueprints. Mr. Olson established that the pertinent number, 85 days, could be calculated for installation of structural steel and steel bar joists, based upon the information supplied to the candidates. By using the diagram and the information supplied with the question, the candidate can calculate that the actual number of days that were taken for the job was 87 days and therefore, that the project, at that point, was two days behind schedule. Mr. Olson performed this calculation by using the actual diagram the Petitioner used and reference information the Petitioner was given to use in answering the actual examination question at issue. He also established that the two parallel lines representing steel bar joists and structural steel on the diagram, and in the symbol legend supplied with the diagram, were indicated on the diagram supplied to Mr. Ilardi at the examination. Mr. Olson also established that the reference quoted for question number 11 was walkers Building Estimator's Reference Book, which, indeed, listed the type of activity network depicted in the diagram used by candidates for question number 11 and 12. Mr. Olson also established that question number 12 requires a candidate to work through an activity network diagram to find the amount of days necessary from the beginning of a project to the time the painting activity begins. He established that the answer could be obtained without the use of any other reference materials other than the information depicted on the diagram, itself, associated with the question. He established that the only correct answer from that information on the diagram could be "D" or 153 days. The Petitioner did not establish that his answer to question number 12, nor to question number 11 for that matter, was a correct answer and did not establish that there was any misleading quality or ambiguity in the wording of the questions and the associated information which would mislead a candidate into calculating the wrong answers or that there was erroneous information depicted in the reference materials or the diagram which would result in the candidate being misled into giving a wrong answer to questions 11 and 12.. Mr. Ilardi challenged the examination as to the testing environment, as that relates to the ambient light level in the examination room and to the acoustic qualities of the room. He also asserted that the test was not standardized throughout the State and was biased due to age, because of the perceived hearing and vision difficulties which he believed were caused by the acoustics in the examination room and the light available. Other than stating his opinions in this regard, he produced no testimony or evidence concerning these alleged qualities of the testing environment. It was demonstrated by she Respondent that, indeed, the test is standardized throughout the State and is the one given to all candidates in Florida, regardless of the test location.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered denying Petitioner's request to receive a passing grade on the certified general contractor's licensure examination. DONE and ENTERED this 4th day of May, 1990, in Tallahassee, Leon County, 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 4th day of May, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-3784 Petitioner's Proposed Findings of Fact Rejected. The Petitioner was not qualified as an expert witness. Other than that, this finding is accepted. Rejected, as not in accord with the preponderant weight of the evidence. Rejected, as not supported by the preponderant weight of the evidence. 4.A.-4.C. Accepted. 4.D. Rejected, as not in accordance with the preponderant weight of the evidence. Accepted, but not itself materially dispositive. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected, as not constituting a finding of fact, but rather a quotation from the transcript of the proceedings. Rejected, as not in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected, as immaterial and not probative of the issues of whether the questions were ambiguous or misleading or whether the Petitioner's answers were correct. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence, and as not materially dispositive. 4.1. Rejected, as not materially dispositive. Rejected, as immaterial. Rejected, as immaterial. Accepted, but not a matter of factual dispute and immaterial. Respondent's Findings of Fact 1-10. Accepted. COPIES FURNISHED: Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 Kenneth D. Easley, Esq. General Counsel Department of Professional Regulation 1940 N. Monroe Street, Ste. 60 Tallahassee, FL 32399-0792 E. Harper Field, Esq. Deputy General Counsel Department of Professional Regulation 1940 N. Monroe Street, Ste. 60 Tallahassee, FL 32399-0792 Mr. James Ilardi P.O. Box 8095 Jacksonville, FL 32239
Findings Of Fact Donald A. Moyant, Petitioner, operates a contractors' exam school in Brandon, Florida, at which he preps builders to take the CILB exam for licensure as contractors. Petitioner took the exam given in June 1985 and received a score of 58.60. A score of 70.00 is required to pass this examination. The only answer that Petitioner questions is the answer he supplied to question No. 2, which related to the number of reinforcing bars required in a concrete slab of given dimensions and spacings of the bars. In Petitioner's solution to the problem he dropped the fractional bar that resulted from dividing the length of the slab by the spacing between bars. The correct solution requires the addition of a bar for this fractional spare. Petitioner's purpose in pursuing this proceeding is to obtain information to use in his Contractors Exam School, Inc. Since he would not have passed the examination even if his solution to question No. 2 had been marked correct, Petitioner is without standing to bring this action because he is doing so on behalf of the school he runs and not to allow him to receive a passing grade.
Findings Of Fact 1. Mrs. Dunham began her employment with the Respondent School Board in 1959. When she began her first position was Accounting Clerk, Pay Grade 12. Presently, she holds the position of Accountant, Pay Grade 23. In August of 1972 the Petitioner was promoted to the position of Accounting Contract Specialist. The individual who had held this position, Mr. Ray Groseclose resigned and Petitioner was promoted to that position. While Mr. Groseclose was in that position it was classified as Pay Grade 26 with a salary of $3.90 per hour. When the Petitioner was promoted to that position she had been classified as Pay Grade 15. Shortly after the Petitioner's promotion to the Accounting Contract Specialist the position was downgraded from a Grade 26 to a Pay Grade Actually, the Petitioner was never paid at the Grade 26 level and her first increased pay check reflected the Grade 21 classification. The Petitioner contends that the failure to promote her into this position at the same pay grade that was enjoyed by her male predecessor indicates sexual discrimination against her for which she should be granted relief in the form of back pay due. The Accounting Contract Specialist position required one holding that position to monitor contracts entered into by the school board and determine that payments were made when required and that a bookkeeping system was maintained to keep track of the status of school board contracts. Ray Groseclose, who held the position prior to the Petitioner's appointment, had no formal education in the field of accounting or bookkeeping, however, he did receive some training in that area while with the Armed Forces. Likewise, the Petitioner had no accounting background, but her experience and initiative were enough for her to perform very satisfactorily in this position. All witnesses who testified regarding the Petitioner's ability stated that she did equally well, if not better, than Mr. Groseclose and assumed more duties than he had in that position. The Petitioner testified that she did not learn until September of 1973, a year after her promotion, that the position was previously classified as a Grade 26. However, when receiving her appointment papers in September of 1972, the Petitioner did sign a notice of reclassification for which indicated that the job was being downgraded. On behalf of the Respondent, testimony was received from Dr. D.J. Harrison, who was now the superintendent of the Savannah-Chatham School Board, Savannah, Georgia. Previously, between 1971 and 1973, he was employed by the Brevard County School Board and among his duties he was supervisor over the Accounting Contract Specialist. Dr. Harrison testified that while Ray Groseclose held that position he had intended to downgrade it, but had not done so before Ray Groseclose resigned. He stated that the position as originally assigned, included the administration of contracts. After Groseclose resigned it was decided to limit the job to accounting and that a Mr. Campbell would handle the administration of contracts. Other testimony, however, indicated that Ray Groseclose never handled the administration of contracts and that the Petitioner actually performed more responsibilities than were assigned to Ray Groseclose. In any case, it appears that the school board came to a realization that the Accounting Contract Specialist position could be filled by a competent individual at a Pay Grade 21 rather than Pay Grade 26 and that when Ray Groseclose resigned it appeared to be a convenient opportunity to downgrade the position. The evidence presented at this hearing does not affirmatively establish discrimination against the petitioner. It is possible the position in question was downgraded because of the petitioner's sex, but a finding of fact cannot be based on a mere possibility. All the evidence presented at this proceeding is consistent with valid administrative practiced on the part of the school board. No evidence was presented on behalf of the petitioner to indicate other examples of possible sexual discrimination on the part of the School Board which could establish a coarse of conduct. In fact, evidence was presented that the U.S. Department of Labor investigated the respondent school board and concluded, with the possible exception of the petitioner, there were no examples of sex discrimination evident. If there was any sexual discrimination practiced against the Petitioner, none was proven. All that is indicated by the evidence taken in this case is that the Petitioner was promoted from a position with the Brevard County Board from a Grade 15 to a Grade 21. The position to which she was promoted was downgraded at approximately the time of her promotion but it does not appear that the Petitioner's sex had anything to do with the downgrading of this position.
The Issue The issue for determination at the final hearing was whether Respondent committed the allegations contained in the Administrative Complaint, specifically: (1) misconduct in the practice of architecture, and/or; (2) violation of a rule adopted pursuant to Chapter 481, Florida Statutes (1983).
Findings Of Fact At all times material to this proceeding, the Respondent, John H. Vongunten, has been a registered architect in the State of Florida, having been issued license number AR- 0006074 which expires on January 31, 1987. The Respondent graduated third in a class of 600 from the University of Pennsylvania. While attending the University of Pennsylvania, Respondent received several honors, including the John Stewardson Memorial Scholarship, was runner-up for the Rome prize, and was Phi Beta Kappa in architecture. Respondent first registered as an architect in Kansas in 1949 and in Florida and Ohio in 1956. Respondent is a member of the American Institute of Architects, the American Registered Architects, and the Guild for Religious Architecture. During his career, Respondent has worked as an assistant on a project with Frank Lloyd Wright, completed 56 churches, 23 automobile agencies, 15 industrial projects and 4 health care facilities. Respondent's background also includes a brief military career where he served as a carrier based fighter pilot, flew with the Blue Angels and received the Navy Cross for service during World War II. The Respondent was employed by Hunton, Shivers, Brady, Associates, P.A. from 1981 until his termination in September of 1984. The Respondent was assigned to provide services to the joint venture of Medical Facilities Consultants (MFC), of which Hunton, Shivers, Brady Associates, P. A. took part. MFC is an architectural firm under contract with the Florida Department of Health and Rehabilitative Services (HRS) to review design plans for health care facilities. Pursuant to its contract with HRS, MFC was required to provide consultative services and perform detailed analysis of proposed medical facilities construction projects and to determine compliance with state licensure standards with respect to architectural, mechanical, electrical and structural engineering disciplines. MFC is a joint business venture which combined the efforts of the architectural firm of Hunton, Shivers and Brady Associates, P.A. and Tilden, Lobnitz and Cooper, Inc. Consulting Engineers. Tom R. Hunton was designated as the representative of the firm to act as contract administrator with HRS for non-technical matters related to administration and work flow. Mr. Hunton was the only individual with complete authority to sign documents and bind the firm in matters relating to the contract. MFC is business operations consisted solely of its work for HRS. The Respondent was employed by MFC as senior architect in charge of the review process. Respondent reviewed the architectural portion of all plans that came in the office; other employees reviewed mechanical and electrical aspects of the plans. Respondent, as senior architect, was the coordinator between mechanical, electrical and architectural. The review process consists of three (3) primary stages of plan submittal to HRS. The first stage is the furnishing of schematic plans. Schematic plans are not very detailed and may consist of single line drawings of the proposed facility. The second stage is much more detailed and is called the submission of preliminary plans. Walls with elevations and other details are shown in this second stage of review of the "design development drawings." The third and final phase is the construction documents review stage. At this stage, there is a full list of plans, including architectural, engineering, landscaping and civil engineering portions of the project. Under a typical review, the design professionals seeking to build the project submit the plans to HRS through the plans and construction section of the Office of Licensure and Certification located in Jacksonville. The plans are thereafter passed on to MFC for their review of the plans pursuant to the previously mentioned contract. MFC provides assistance in all these stages of the review process. MFC then reviews the plans and submits a report to HRS which recommends approval or disapproval and may contain comments about the project. The Office of Licensure and Certification then decides to approve the project or to disapprove it. HRS receives plan review fees as a part of the plan review process. Requests for official plan review fees are made in writing by Mr. Rosenvold. MFC principals and employees generally do not have direct contact with the design professionals. However, at the schematic plans stage, often a meeting is held at the HRS office in Jacksonville between HRS officials, MFC and the design professionals. MFC officials were instructed by Richard Rosenvold, administrator for the Plans and Construction Section, not to contact the design professionals without prior approval of the Office of Licensure and Certification. During the summer of 1984, MFC was employed to review the design documents for a health-care project known as "The Cloisters of Deland" to be built in Deland by the firm of MacMahon-Cajacob Associates. The Cloisters of Deland is planned as a retirement community on an eleven and one-half acre site in downtown Deland. A multi-story building is projected to house general-use facilities on the first floor including administration, food service and activity areas, and a 60-bed skilled nursing facility on the entire second floor. The remaining 6 floors are projected to contain apartments. HRS is required to review the nursing home portion of the project. When HRS submits plans for review to MFC, MFC generally has 30 days in which to respond. An architectural review, a mechanical review, an electrical review and a fire protection review is completed. After these reviews are completed, Tom Hunton reviews the comments, if any, and signs off on a package which is sent to HRS recommending approval or disapproval and including comments. The Cloisters project was scheduled to be returned to HRS by MFC on or before August 31, 1984. Tom Hunton signed off on the The Cloisters of Deland project on August 29, 1984 recommending disapproval. Contrary to normal procedure, the disapproval package signed by Mr. Hunton was not mailed immediately to HRS, but was held up by Respondent. In the review process, it was Respondent's job to review the comments of the architect, the mechanical engineer and electrical engineer, mark the comments approved or disapproved, and give the package to Hunton. When Hunton signed off on The Cloisters project on August 29, 1984, it was disapproved in all three categories: architectural, electrical and mechanical. The Cloisters project package was not mailed out immediately after Hunton signed it because Respondent kept it in his office for an undetermined reason. On September 5, 1984, the Respondent telephoned Mr. MacMahon (supervising architect for The Cloister project) in Deland and advised him that the construction documents of The Cloisters of Deland had been reviewed and that they contained numerous violations and would be disapproved by the Office of Licensure and Certification. The Respondent advised Mr. MacMahon that he was in a position to assist them in making corrections that would avoid disapproval. The Respondent advised that he had a team of "moonlighters" available to assist them at the rate of $100 an hour per man. Respondent told MacMahon that the moonlighting service would be a way to get contingency approval, and thus, avoid rejection and considerable loss of time. Because Mr. MacMahon was planning to leave town for a short period of time, he asked his partner, Alan Cajacob, to handle the matter with Respondent. On September 6, 1984, Respondent and Mr. Cajacob spoke on the telephone. Respondent suggested a meeting to discuss the situation concerning problem areas in the plans. Mr. Cajacob was interested in finding out what the comments or problem areas found in the plans by the reviewers were; he, therefore, agreed to a meeting. The Cloisters project was under construction and time was critical to the project. Thereafter, a meeting was held on Saturday, September 8, 1984, between Mr. Cajacob, the Respondent, and Mr. Carl Stanton. Mr. Cajacob invited Mr. Stanton (supervisor and project manager of construction at The Cloisters) to attend the meeting because Stanton was thoroughly knowledgeable about the project. Mr. Cajacob anticipated that Respondent would bring a list of the deficiencies or comments from the reviewing team to the meeting for discussion. However, Respondent advised Cajacob that it was his intention to obtain a clean set of construction documents and have them marked up in red pencil with comments from a team of people who could review them quickly over the weekend. Respondent told Mr. Cajacob that his reviewing team consisted of mechanical and electrical personnel who had previously worked as reviewers for HRS for these types of plans. The Respondent repeated his assertion that his moonlighting team could avoid a complete turndown of the construction documents and obtain a conditional approval of the plans. This could be accomplished because with the comments, changes in the construction documents could be made and inserted so that costly delay would be-avoided. Therefore, Cajacob gave the Respondent a "clean" set of plans. At the conclusion of the September 8th meeting, Respondent asked Cajacob for a total of one thousand dollars ($1,000). The Respondent wanted five hundred dollars ($500) "up front" money as a retainer to pay for his time and the time and expenses of his moonlighting team. In addition, he wanted $500 which would be due the following day when he returned with the marked set of drawings. Mr. Cajacob advised the Respondent that he could not produce that amount without the approval of the project owner and that he would need an invoice from Respondent to support his request. The Respondent then left the office with an unmarked set of drawings and stated that he would contact Mr. Cajacob later after he had spoken with his team members. Before leaving, Respondent told Cajacob and Stanton that their meeting should be held in confidence. At this point, Cajacob began to have his doubts about the propriety of the conversation but decided that he would contact HRS on that Monday and determine whether the Respondent's proposal was an appropriate way to proceed. Later that day, the Respondent telephoned Mr. Cajacob at home and advised him that without the full $1,000 up front, the moonlighting team could not provide the services they were offering. During this telephone conversation, Mr. Cajacob refused to provide the $1,000 up front and asked the Respondent to return the plans so that the normal procedure could be followed. At that point, Mr. Cajacob began to feel nervous and uneasy about the Respondent's proposal The following Monday or Tuesday, Mr. Cajacobe received a note from his secretary stating that Respondent had called and that the plans had been dropped off at a nearby Holiday Inn. Mr. Cajacob's secretary picked up the plans. After the return of the plans, Cajacob received several telephone calls and at least one letter from Respondent stating each time that he (Respondent) was very sorry, he had made a terrible mistake and requesting that Cajacob forgive him. On September 10, 1984, Mr. Cajacob, after discussing the incident with his partner, Mr. MacMahon, called Mr. Rosenvold in Jacksonville and apprised him of Respondent's contact. Thereafter, Mr. Rosenvold called Mr. Hunton and advised him of the complaint that Respondent had contacted the firm of MacMahon and Cajacob in Deland. At Rosenvold's request, Hunton investigated it. On Tuesday, September 11, 1984, Hunton and the surviving partner, Brady, met with Respondent and, effective September 12, temporarily suspended him while the matter was being investigated. The Respondent was terminated on September 18, 1985. Respondent's moonlighting team consisted of himself, and two other people who were going to review the electrical and mechanical aspects of the plans. The moonlighting team would have based their work on their own knowledge and Respondent did not intend to let them use the list of comments prepared by the MFC Reviewing Team. Respondent did not advise Hunton or Mr. Rosenvold that he intended to contact MacMahon or Cajacob regarding The Cloisters. Likewise, neither Hunton nor Mr. Rosenvold authorized the contact with MacMahon and Cajacob. After a turn-down or disapproval from HRS, the design professionals may resubmit new plans directly to HRS in Jacksonville. The instance of turn-downs in plans is rare. Only about 10%-15% of plans reviewed by MFC are disapproved. The Cloisters of Deland project had been disapproved five (5) times previously.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is recommended that: Respondent be found guilty of a violation of §§481.225(1)(i) and (j), Florida Statutes (1983); and that, Respondent's license to practice architecture be suspended for a period of one year and that an administrative fine of $1,000 be assessed. DONE and ORDERED this 9th day of January, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, 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 9th day of January, 1986. COPIES FURNISHED: Wings Slocum Benton, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Joseph A. Scarlett, Esquire Joseph R. Clark, Esquire 208 West Howry Avenue Deland, Florida 32720 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 J. W. Hendry Executive Director Board of Architecture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on the proposed findings of fact submitted by the parties in this case. Petitioner's Findings of Fact Paragraph Ruling Accepted; see R.O. paragraph 1. Accepted; see R.O. paragraphs 3 & 4. Accepted; see R.O. paragraphs 3 & 4. Accepted; see R. O. paragraph 5. Accepted; see R.O. paragraph 8. Accepted; see R.O. paragraphs 6 & 7. Accepted; see R.O. paragraph 8. Accepted; see R. O. paragraph 4. Accepted; see R. O. paragraph 3. Rejected as irrelevant. Accepted; see R. O. paragraph 8. Accepted; see R.O. paragraph 8.I Accepted; see R.O. paragraph 8. Accepted; see R.O. paragraph 9. Accepted; see R.O. paragraph 9. Accepted; see R.O. paragraph 13. Accepted; see R.O. paragraph 14. Accepted; see R.O. paragraph 8. Accepted; see R.O. paragraph 7. Partially accepted; see R.O. paragraphs 11 and 12; matters not contained therein are rejected as subordinate. Accepted; see R.O. paragraph 12. Rejected as not supported by credible evidence. Accepted; see R.O. paragraph 12. Accepted; see R.O. paragraph 12. Accepted; see R.O. paragraph 11. Accepted; see R.O paragraph 12. Accepted; see R.O. paragraphs 11 and 12. Accepted; see R.O. paragraph 13. Rejected as subordinate. Partially accepted; see R.O. paragraph 14. Matters not included therein are rejected as subordinate and unnecessary. Accepted; see R.O. paragraph 14. Not included in R.O. because subordinate. Not included in R.O. because subordinate. Rejected as subordinate. Not included in R.O. because subordiante. Accepted; see R.O. paragraph 13. Accepted; see R.O. paragraph 14. Not included in R. O. because subordinate. Not included in R.O. because subordinate. Accepted; see R.O. paragraph 15. Accepted see R.O. paragraph 15. Accepted; see R.O. paragraph 14. Partially accepted; see R.O. paragraph 16. Matters not included are considered subordinate. Accepted; see R.O. paragraph 16. Accepted; see R.O. paragraph 16. Accepted; see R.O. paragraph 16. Accepted; see R.O. paragraph 17. Accepted; see R.O. paragraph 17 Not included in R.O. because subordinate. Accepted; see R.O. paragraph 18. Accepted; see R.O. paragraph 18. Not included in R.O. because subordinate. Not included in R.O. because subordinate. Accepted; see R.O. paragraph 19. Accepted; see R.O. paragraph 19. Accepted; see R.O. paragraph 20. Not included in R.O. because subordinate. Not included in R.O. because subordinate. Accepted; see R.O. paragraph 21. Partially accepted; see R.O. paragraph 21. Matters not included therein are considered subordinate. Rejected as irrelevant. Rejected as irrelevant. Rejected as a recitation of testimony Rejected as not supported by credible evidence. Rejected as a recitation of testimony Rejected as a recitation of testimony Rejected as not supported by credible evidence. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Accepted; see R.O. paragraphs 13, 16 and 23 Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Accepted; see R.O. paragraph 17. Rejected as subordinate. Partially accepted; see R.O. paragraph 17. Matters not included therein are rejected as subordinate and irrelevant. Accepted; see R.O. paragraph 16. Partially accepted; see R.O. paragraphs 13 and 16. Matters not included therein are rejected as irrelevant and subordinate. Accepted; see R.O. paragraph 24. Rejected as recitation of testimony. Accepted; see R.O. paragraph 24. Accepted; see R.O. paragraph 24. Accepted; see R.O. paragraph 22. Accepted; see R.O. paragraph 22. Rejected as irrelevant, subordinate and cumulative. Rejected as subordinate and irrelevant. Rejected as irrelevant. Accepted; see R.O. paragraph 25. Rejected as recitation of testimony and a conclusion of law. Rejected as a recitation of testimony and a conclusion of law. Partially accepted; although Respondent did teach a course in architectural ethics, at one point in his career, there was no evidence to indicate the specific content of the course on whether "conflicts of interest" were covered. RESPONDENT'S FINDINGS OF FACT Paragraph Ruling Accepted; see R.O. para. 4. Accepted; see R.O. paras. 4 and 9. Accepted; see R.O. para. 13. Accepted; see R.O. paras. 7. Accepted; see R.O. paras. 6, 7 and 14. Accepted; see R.O. para. 4. Accepted; see R.O. para. 5. Accepted; see R.O. paras. 7 and 10. Accepted; see R.O. paras. 7, 11 and 12; Partially accepted; see R.O. paras. 9 and 12. Matters not included therein are rejected as not supported by credible, competent and substantial evidence. Accepted; see R. O. paras. 13 and 14. Partially accepted; see R. O. paras. 15, 16, 17 and 18. Matters not included therein are rejected as subordinate. Rejected as argument and not supported by the evidence. Partially accepted; see R. O. para. 22. Matters not included therein are rejected as argument and subordinate. Accepted, but considered as a conclusion of law.
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 Is Petitioner entitled to one additional point on the October 1996 Professional Civil Engineer Examination so as to achieve a passing score for licensure in Florida?
Findings Of Fact Petitioner took the Civil Engineer Examination given in October 1996. The Department of Business and Professional Regulation's Bureau of Testing notified Petitioner by Examination Grade Report dated February 17, 1997, that she had earned a score of 69.00 on the Civil Engineer Examination. The minimum passing score for the Civil Engineer Examination is 70.00. Petitioner timely requested formal hearing and challenged only Question 120, for which she received no points. Petitioner is trained as a materials engineer. Question 120 is a soils and foundation problem outside her concentrated area of study. It is an open book examination question. Petitioner selected the correct equation from the applicable manual, but acknowledged that she solved the variables of that equation incorrectly. The National Council of Examiners for Engineering and Surveying (NCEES) produced, distributed, and was responsible for grading the examinations. Petitioner contended that the examiner who graded her answer sheet applied different criteria than the examination criteria published by the NCEES. Petitioner further contended that since one criterion her grader actually used was merely to "write the correct equation," she should be awarded at least one point on that basis. However, a comparison of the actual grader's handwritten "summary" on Petitioner's Solution Pamphlet (Respondent's Exhibit 3) and the NCEES's Solutions and Scoring Plan (Respondent's Exhibit 2) does not bear out Petitioner's theory. It is clear that out of five possible parts of the question, which five parts total two points' credit each, merely selecting the correct equation from an open text would not amount to two points, or even one point, credit. I accept as more competent, credible and persuasive the testimony of Eugene N. Beauchamps, the current Chairman of the NCEES Examination Policy Committee and a Florida licensed Professional Engineer, that the grader's "summary" describes what he actually reviewed in Petitioner's written solution to Question 120 rather than establishing one or more different grading criteria. In order to receive a score of two on Question 120, the candidate was required to demonstrate any one of five requirements listed in the NCEES Solution and Scoring Plan for "2-Rudimentary Knowledge." The first requirement in the NCEES Solution and Scoring Plan (Respondent's Exhibit 2) for receiving a score of two points is, "Determines effective overburden stress at mid- depth of clay layer." The remaining four NCEES scoring criteria required that the examinee: Computes the change in effective stress at mid- depth of the clay layer due to placement of the fill. Computes the primary consolidation settlement, based on a change in effective stress, due to the fill surcharge. Evaluates the Average Degree of Consolidation and the Time Factor. Determines the waiting period after fill placement recognizing the existence of double-drained conditions. In order to gain two more points (total 4 points) so as to demonstrate "More Than Rudimentary Knowledge But Insufficient to Demonstrate Minimum Competence," Petitioner would have to have met two of the five bulleted criteria. For two more points (total 6 points) for "Minimum Competence," Petitioner would have had to score three bullets. For two more points (total 8 points) for "More than Minimum But Less Than Exceptional Competence," Petitioner would have had to score four bullets. Finally, to attain "Exceptional Competence" for 10 total points, Petitioner would have had to score all five bullets. In the first correct equation for answering Question 120, "p sub zero" (p naught) equals the present effective overburden pressure, which represents what clay was present before anything was put on top of the clay layer. "P" equals the total pressure acting at mid-height of the consolidating clay layer or the pressure of the dirt and the water in the dirt. "H" equals the thickness of the consolidating clay layer. Petitioner's solution for the first bullet, "determining the effective overburden stress at mid-depth of clay layer," indicated p sub zero (p naught) as the "present effective overburden pressure," but it incorrectly calculated p sub zero equaling 125 pounds multiplied by 13 feet. This is incorrect because the effective overburden pressure would not include 13 feet of fill. The 13 feet of fill is not part of p sub zero, the present effective overburden pressure. Petitioner's solution for the first bullet, also multiplied water, represented by 62.4, by 12, which is incorrect. She should have used a multiplier of 10 to receive credit for this problem. The grader indicated the correct equation was used incorrectly by Petitioner because of the two foregoing incorrect calculations. The equation, as Petitioner stated it, was correct and her multiplication was correct. Her solution identified P sub zero as present effective overburden pressure but present effective overburden pressure would not include the fill. Petitioner had the correct equation for the present effective overburden pressure and her mathematics were correct. However, she did not use the consolidation equation correctly, not obtaining the correct percentage of primary consolidation. As stated, the problem did not consider the fill as part of the present effective overburden pressure. Her solution also contained the correctly written time rate of settlement equation but failed to use it, and no waiting period was determined. The practical result of Petitioner's error could range from a cracked building to a collapsed building, depending upon the degree of error to site and materials.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order denying Petitioner's challenge and affirming her score as one point below passing. RECOMMENDED this 3rd day of March, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1998. COPIES FURNISHED: Susan E. Wilson 3581 Jose Terrace Jacksonville, Florida 32217 R. Beth Atchison Assistant General Counsel Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Angel Gonzalez, Executive Director Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame General Counsel Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399
