The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (Department), is the state agency charged with the duty and responsibility of regulating the practice of contracting and electrical contracting pursuant to Chapters 20, 455 and 489, Florida Statutes. At all times material to the allegations of the Administrative Complaints, Antoney Manning was not licensed nor had he ever been licensed to engage in contracting as a State Registered or State Certified Contractor in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. At all times material to the allegations of the Administrative Complaints, Manning Builders did not hold a Certificate of Authority as a Contractor Qualified Business in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. Respondent, Antoney Manning, was at all times material to this proceeding, the owner/operator of Manning Builders. Respondent is in the business of framing which includes framing, drywall, tile, trim work, and painting. A document which is in evidence purports to be a contract dated September 5, 2004, between Manning Builders and Ms. Gwendolyn Parker, for the construction of a 14-foot by 14- foot addition in the rear corner of Ms. Parker's house located at 8496 Southern Park Drive in Tallahassee, Florida. The contract identifies Manning Builders as the "contractor." The contract price is $15,000. Unfortunately, only the first page of the contract is in evidence. However, Respondent acknowledges that he and Ms. Parker entered into a contract regarding the 14-foot by 14-foot addition to Ms. Parker's home. Respondent insists that he informed Ms. Parker that he was not a certified general contractor, but that he could find a general contractor for her. When that did not work out, Respondent told Ms. Parker that she would have to "pull" her own permits and that he could do the framing. He also told her that he would assist her in finding the appropriate contractors to do the electrical work, plumbing, and roofing. Ms. Parker did not testify at the hearing. On September 7, 2005, Respondent signed a receipt for $7,500 for a "deposit on addition (14 x 14)." The receipt identifies Ms. Gwendolyn Parker as the person from whom the money was received by Respondent. Respondent acknowledges finding an electrical contractor to perform the electrical work on the addition. However, he insists that he did not hire the electrical contractor but found one for Ms. Parker to hire. He gave the name to Ms. Parker but she apparently did not contact him. In any event, the electrical work was never done on the addition. Respondent completed the framework on the addition. Respondent did not build the roof, as he was aware that would require a roofing contractor. Work on the project ceased before the addition was finished. Ms. Parker's home suffered rain damage as a result of the roof not being completed. There is nothing in the record establishing the dollar amount of damage to her home. The total investigative costs to the Department, excluding costs associated with any attorney's time, was $360.59 regarding the allegations relating to Case No. 06- 0601, which charged Respondent with the unlicensed practice of contracting. The total investigative costs, excluding costs associated with any attorney's time, was $140.63 regarding the allegations relating to Case No. 06-0602, which charged Respondent with the unlicensed practice of electrical contracting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Business and Professional Regulation enter a final order imposing a fine of $1,000 for a violation of Section 489.127(1); requiring Respondent to pay $360.59 in costs of investigation and prosecution of DOAH Case No. 06-0601, and dismissing DOAH Case No. 06-0602. DONE AND ENTERED this 28th day of June, 2006, in Tallahassee, Leon County, Florida. S ___________________________________ BARBARA J. STAROS 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 28th day of June, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Antoney Manning 11865 Register Farm Road Tallahassee, Florida 32305 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue for determination in this proceeding is whether a contract for a perimeter security system at Calhoun Correctional Institution and Holmes Correctional Institution should be awarded to Intervenor.
Findings Of Fact On January 19, 1994, Respondent issued an Invitation To Bid, Bid No. 94-INST-6197, the ("ITB"). The ITB requested bidders to submit bids to supply materials for perimeter security systems and to provide training for the installation and maintenance of the systems at Calhoun Correctional Institution and Holmes Correctional Institution. Responsive bids had to include materials and training necessary for Respondent to install and maintain the security systems. Bids had to be filed no later than February 10, 1994. Petitioner and Intervenor submitted bids along with three other bidders in a timely manner. The ITB required bidders to hold a Florida alarm contractor's license. Intervenor does not hold such a license. However, the ITB defines the term "bidder" to include an individual, firm, partner, or corporation. Intervenor's bid contemplated that it will supply the materials required in the ITB. Another company that holds a Florida alarm contractor's license will provide the training required for Respondent to install and maintain the security systems. Intervenor and the other company responded to the ITB as partners in a single bid that provides a single price for all materials and training required by the ITB. Intervenor's bid complies with the terms of the ITB and is responsive. Respondent notified Intervenor of its intent to award the contract to Intervenor as the lowest responsive bidder. Intervenor's bid is approximately $14,000 less than Petitioner's bid. Petitioner is the second lowest bidder. Respondent's interpretation that the ITB allows materials and training to be supplied separately by Intervenor and its partner is a reasonable interpretation that is neither arbitrary nor capricious. The intent and purpose of such an interpretation is to encourage flexibility that may result in savings to the state. The provision of materials and services by separate companies in Intervenor's bid will, in fact, result in substantial savings to the state. The terms of the bid does not create an unfair advantage for Intervenor. The term bidder is defined in the bid documents to include a partner and a corporation. Florida law expressly exempts Intervenor from the requirement for an alarm contractor's license if Intervenor merely supplies materials and does not fabricate or consume the materials in performing the work of a contractor. Section 489.503(10), Florida Statutes. Therefore, only Intervenor's partner is required to hold an alarm contractor's license, and, in fact, Intervenor's partner holds the requisite license. Respondent's interpretation of the ITB is consistent with applicable law. Any other interpretation of the ITB by Respondent would have purported to impose a stricter licensing requirement than that imposed by the legislature.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's written formal protest be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of April, 1994. DANIEL MANRY 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 26th day of April, 1994. APPENDIX Petitioner's Proposed Findings of Fact 1.-5., 7-8. Accepted in substance 6. Irrelevant and immaterial Rejected as recited testimony Accepted in substance 11.-13. Rejected for the factual and legal reasons stated in the Recommended Order Respondent's Proposed Findings of Fact All of Respondent's proposed findings of fact are accepted in substance. COPIES FURNISHED: Beth Atchison, Esquire Assistant General Counsel Florida Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500 Teresa Hurtado Schaefer, CEO FSM, Inc. 3559 S. W. 69th Way Miramar, FL 33023 Harry K. Singletary, Jr. Secretary Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500 Michael G. Kanche, Jr. Southwest Microwave 2922 South Rosevelt Street Tempe, Arizona 85282-2042
Findings Of Fact In June 1987 The School Board of Lee County, Florida invited the submission of sealed bids for grading and drainage improvements at the new Multipurpose Building at Fort Myers High School. In addition to requiring grading, the project involves the erection or placement of structures in the nature of a drainage system consisting of culverts, pipes, and concrete inlets with grates, to be tied into the existing drainage system off School Board property across a county right-of-way into a culvert for discharge across the street, and which on School Board property attaches to and becomes a part of an existing building. Sealed bids were submitted by Systems Technologies Co. of Ft. Myers, Inc. (hereinafter "Systems Technologies") and by Ledo Lines, Inc. Respondent determined Systems Technologies to be the lowest responsible bidder and advised Ledo Lines, Inc., that it would be awarding the contract to Systems Technologies. Warren W. Hunt is the president and the qualifying agent of Systems Technologies. Hunt has an underground utilities contractor's license which has been inactive since it was obtained by him in March, 1986, being inactive therefore both at the time that Hunt submitted the bid on behalf of Systems Technologies and at the time of the final hearing in this cause. The inactive status results from Hunt's failure to complete the license process with the State of Florida. Since Hunt's license was inactive due to being incomplete at the times material to this cause, neither Hunt nor Systems Technologies was a licensed contractor and Systems Technologies was not a responsible bidder at the time that the bid was submitted. The contract specifications set forth the method by which the bids would be evaluated. Paragraph numbered 2.9 on page PD-4 provides as follows: Comparison of Proposals - Proposals will be compared on the basis of total computed price for each division of work. Total computed price equals the sum of the prices for the lump sum Contract Item, plus the sum of the total prices for the unit price Contract Items for each Division of work. The total price for each unit price Contract Item will be obtained by multiplying the estimated quantity of each item by the correspond- ing unit price set forth in the Proposal form[.] That provision, accordingly, requires that the bids be evaluated based upon the sum of all line items rather than based only upon their total or "bottom line" figure. Respondent's Director of Facilities Planning admitted that he failed to comply with this provision of the contract specifications in evaluating the two bids submitted to him and in determining that the bid should be awarded to Systems Technologies. In Systems Technologies' bid, the sum of the prices for the lump sum contract items plus the sum of the total prices for the unit price contract items amounts to $30,109.60. However, in submitting its bid Systems Technologies incorrectly added its column of figures and incorrectly computed its Total Contract Price (Estimated) to be $29,768. Since the contract specifications envision a unit price bid rather than a lump sum bid, the amount of the bid of Systems Technologies is in fact the amount of $30,109.60. The bid of Ledo Lines, Inc., is for $29,913.84. Ledo Lines, Inc., is, therefore, the low bidder on this project. The contract specifications when read in their entirety clearly require that the low bid be determined by adding the unit price and lump sum components rather than relying on the lump sum "bottom line" figure shown for Total Contract Price (Estimated). Employees of the consultant who Prepared the specifications testified that they expect to be able to hold the bidders to the unit prices but not to the Total Contract Price (Estimated) because the estimated quantities may change. Thus, the evidence is uncontroverted that the determination of low bidder pursuant to the contract specifications is based upon the total of the unit price provisions and not by the single figure at the bottom of the page which adds those individual prices and which was added erroneously in this case by Systems Technologies. In their Prehearing Stipulation, the parties stipulated that the School Board is subject to mandatory competitive bidding for this project. They further stipulated that where there is mandatory competitive bidding, the contract must be awarded to the lowest qualified, responsive bidder. Since Systems Technologies is neither a qualified, responsive bidder nor the lowest bidder, it is clear that Ledo Lines, Inc., is the lowest responsive bidder for the project in question.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered determining Ledo Lines, Inc., to be the lowest responsive bidder and awarding the contract for grading and drainage improvements to the Multi- purpose Building at Fort Myers High School to Ledo Lines, Inc. DONE and RECOMMENDED this 25th day of September, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1987. COPIES FURNISHED: James E. Melvin, Superintendent School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901 E. G. Couse, Esquire Post office Drawer 1647 Fort Myers, Florida 33902 Harry A. Blair, Esquire Post Office Box 1467 Fort Myers, Florida 33902
Findings Of Fact On or about October 28, 1987, the Department of Health and Rehabilitative Services (HRS) mailed its Invitation To Bid (ITB) No. 88-32BC to prospective bidders. According to the Special Bid Conditions of ITB No. 88- 32BC, the stated purpose of the ITB was "to obtain competitive bid prices from Vendors/Contractors for the purchase and installation of Open Office Partitions/Furnishings and related accessories for use by the department's ABUSE REGISTRY, located in the East Wing, 2729 Fort Knox Blvd., Tallahassee, Florida 32308." Included among the responses to the ITB were bids by International Interiors, Inc., (International), by Perdue Office Interiors, Inc., (Perdue), by Executive Office Supply, Inc. (Executive), and by Haworth. The construction of the future HRS office space in the East Wing of 2729 Fort Knox Blvd. was coordinated between the owner and HRS to accommodate the needs of the HRS Abuse Registry. The space will be used by qualified HRS personnel and support staff to receive and maintain telephone reports of child abuse and related complaints. HRS consulted with the owner's architect to determine the ultimate floor plan of the HRS space in the building and then consulted an interior design expert to determine how HRS could best utilize the space for the purposes of the Abuse Registry through these efforts, HRS designed an office interior consisting of a system of partitions and furniture. The interior design was reduced to a blue print or design drawing specifying gross dimensions as well as the particular dimensions of offices, partition panels, hallways, work space (desk tops), related components of the system and the particular location of building support columns and electrical power poles. The ITB included a design drawing and provided in pertinent part in its Special Bid Conditions: DESIGN: This project has a limited amount of space with fixed walls and fixed dimensions as given on the architectural drawing. Each vendor must guarantee his system will fit into the space without any violation of Florida Building Codes. Design Drawings and a Component Listing have been included in each bid package so that each vendor will have the equal opportunity to evaluate the project as a whole as well as by its parts. All dimensions are listed as nominal dimensions since various manufacturers' component varys [sic] somewhat in exact dimensional sizes. Surface materials and colors will be selected from the successful vendor's line after the award of the bid has been made. SITE EXAMINATION: The area to be used by the Abuse Registry is located on the main floor, east wing, 2729 Fort Knox Blvd., in Tallahassee, Florida 32308. The site has existing walls, columns, door entrances, etc., which will have to be taken into consideration when integrating your open office system into the design scheme. It is the responsibility of the vendor to inspect the premises and familiarize himself with all of these on-site conditions. A floor plan has been provided for reference only, and any specific analysis or dimensioning should be made on site by the vendor. Contact Mr. DeVoe Moore to schedule a tour of the work site. (904) 656-6211. Failure to consider on-site conditions may result in disqualification of the bid. The Technical Specifications provide in pertinent part: All dimensions in this component listing has [sic] been provided for the purpose of fulfilling the overall dimension requirements as shown in the furniture plan. Variations from these will occur between different manufacturer's products. In providing dimensions other than those listed, it is critical to maintain a minimum hall clearance of 4'0" or code requirement and to work within the given permanent walls. (Emphasis added.) International's bid was the lowest at $211,523.96. But HRS disqualified it as nonconforming because cursory review, as well as International's own design drawing furnished with its bid, showed that International's proposal would intrude three feet into a four foot hallway around the perimeter of the office space which is required, and is required to be four feet wide, by the applicable building codes and the State Fire Marshal. HRS' disqualification of the International bid on that ground was erroneous under the facts presented at final hearing. The intrusion of the International proposal into the required hallway was due to International's error in configuring the partition panels for purposes of the design drawing. No other bidder even included a design drawing, which was not required by the ITB. The apparent intrusion of the International proposal into the hallway is easily corrected by swapping 66" partition panels that had been placed along the length of the office space for purposes of preparing International's design drawing with 48" partition panels that had been placed perpendicular to the 66" panels. With this new configuration, the International bid fits into the gross dimensions of the HRS office space without any loss of work space or cabinet space as a result of the reconfiguration. 3/ However, International's Shaw/Walker product has partition panels that are 3" thick. (The ITB calls for partition panels that are at least 2" thick. See Finding Of Fact 15, below.) At least in part for that reason, International cannot fit as much Shaw/Walker furniture into the HRS office space as specified in the HRS design drawing. To fit the Shaw/Walker product into the space, International substituted 42" corner desk tops for the 48" corner desk tops specified in the Technical Specifications of the ITB in 36 of the 60 office cubicles in the design drawing. This results in a loss of 6" of desk top on either side of those corner desk tops, a total of 6 square feet of desk top in each affected cubicle, and reduces the size of those 36 office cubicles from 64 to less than 58 square feet. Neither Executive nor Perdue had to vary from the Technical Specifications, and they will be able to duplicate the HRS design drawing without losing desk top surface area or office cubicle square footage. If it knew it could have put together an acceptable bid offering less work space, Perdue could have done so at a lower cost and therefore at a lower bid price. Under the ITB, the dimensions of the individual components were nominal, but the assembly of components to reproduce the overall dimensions of the furniture plan on the HRS design drawing was a mandatory bid specification. Although it was the lowest in price, International's bid must be disqualified as unresponsive. As between Perdue and Executive, Executive made the lower bid by only approximately $235, $228,000 to $228,235.36. However, Executive's bid departs from the Technical Specifications in several significant respects. The Special Bid Conditions of the ITB provides in pertinent part: SYSTEM QUALITY - BRAND NAMES: It is the intent of the solicitation that the successful bidder provide modular furnishing comparable-in quality to: Haworth Steelcase Shaw/Walker HRS approved equivalent The department considers that the above furnishings establish standards for comparison and identify levels of quality for design of materials, methods of fabrication and assembly. The department retains the right to determine the acceptability of systems not mentioned above. Bidders proposing systems and components as alternates to those identified above must submit a request for pre-qualification to include complete descriptive literature and a list of current installations. (Emphasis added.) Executive pre-qualified the Westinghouse Furniture Systems' Wes Group product which it bid. The Westinghouse furniture generally is comparable in overall quality to the three specified products -- Haworth, Steelcase and Shaw/Walker. However, the Haworth, Steelcase and Shaw/Walker products were specified not only because of their overall quality but also because HRS, through its consultant, understood that they would meet the requirements of the Technical Specifications of the ITB. The ITB does not state or suggest that its Technical Specifications are waived by pre-qualification of an "equivalent" product. HRS had several major concerns, in addition to the furniture design or floor plan, in putting this project out for bid. Due to the number of people who would be doing primarily telephone work in an open office environment, one primary concern was for high quality acoustical panels. Under "Power And Communication Panels," the Technical Specifications of the ITB state in pertinent part: Acoustical fabric panels shall maintain a Noise Reduction Coefficient (NRC) rating of .90 or greater and an STC rating of at least 29. The higher the acoustical rating of a partition panel, the higher its cost. Therefore, if a bidder could reduce the acoustical rating, it could afford to make a more price competitive bid. For that reason, Perdue telephoned HRS' consultant before submitting its bid to ask if the acoustical rating was "critical" and was told that it was. Perdue bid Steelcase product, including partition panels that conform to the requirements of the Technical Specifications instead of its lower cost, lower rated panels. Executive bid partition panels with an NRC rating of only .80 and an STC rating of only 27. Another major concern of HRS was for quality, durable construction so that HRS could expect to get years of satisfactory use of the furniture system it was purchasing. For this reason, the "Power And Communication Panels" section of the Technical Specification also provides in part: "All panels shall have a minimum 2" all-steel frame." Steelcase partition panels meet the specification; Westinghouse panel frames are only 1 1/2" thick. HRS also wanted to be sure that the office furniture system it was purchasing would be able to accommodate the need for its Abuse Registry personnel to work with a variety of electrically-operated equipment, including computer equipment. Under "Electrical Panels," the Technical Specifications of the ITB provide in pertinent part: "Panels shall have the capability of distributing four 20 amp circuits, one isolated; UL listed." The Westinghouse panels Executive bid have the capability of distributing only three 20 amp circuits (without additional electrical components.) Meanwhile, Perdue's bid meets this specification, too. When Perdue telephoned to inquire about the acoustical specification, it also asked if this electrical specification was critical, and the HRS consultant confirmed that it was. Therefore, Perdue bid higher priced panels that meet the specifications instead of lower priced panels comparable to the Westinghouse panels Executive bid. Both Perdue's and Executive's bid had some other minor non- conformities. Perdue's Steelcase overhead cabinets operate by a nylon glide with metal scissor hinge instead of by a ball bearing hinge, as specified, and its panel tackboards are 15 1/2" x 30" instead of 24" x 30", as specified. But Executive's Westinghouse partition panels have adjustable glides on the post by which the panels are connected instead of two adjustable glides on each panel, as specified (assuming panel-to-panel connections). Because it does not meet critical aspects of the Technical Specifications of the ITB, the Executive bid must be disqualified as unresponsive. The Haworth bid also was responsive but was for approximately $270,000, far above the others. Perdue's bid, as the lowest responsive bid, should be awarded the contract.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order (1) granting the bid protests of both International and Perdue insofar as they protest the award of HRS Bid 88-32BC to Executive on the ground that the Executive bid is unresponsive, (2) denying the International protest insofar as it seeks the award of HRS Bid 88-32BC on the ground that it too is unresponsive, and (3) granting the bid protest of Perdue also insofar as it seeks the award of HRS Bid 88-32BC because Perdue is the lowest responsive bidder. RECOMMENDED this 27th day of January, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1988.
The Issue Whether Petitioner is entitled to licensure as a certified electrical contractor pursuant to the provisions of Section 489.514, Florida Statutes.
Findings Of Fact At all times material hereto, Petitioner, William Davidson Schaefer (Petitioner), was a licensed electrical contractor, having been issued License No. ER-0008163. This license, issued to Petitioner after he fulfilled the competency requirements of the Pinellas County Construction Licensing Board, allows him to practice electrical contracting in Pinellas County, Florida. To meet the competency requirements of the Pinellas County Construction Licensing Board necessary to obtain an electrical contracting license, Petitioner had to successfully complete a written examination. In 1981, when Petitioner received his license, the test required by the Pinellas County Construction Licensing Board was administered by Construction Exams, Inc., the sole test provider for Pinellas County. Petitioner took the Electrical Contractor's Examination administered by Construction Exams, Inc. on June 26, 1981, and earned a passing score of 86.5%. Petitioner has practiced electrical contracting in Pinellas County since 1981 and has been sole owner of Lester Electric, Inc., an electrical contracting company, since 1983. Petitioner's license is active and in good standing. Moreover, during the time that Petitioner has practiced electrical contracting, he has not been the subject of any complaints filed with, or discipline imposed by, the Pinellas County Construction Licensing Board. On or about May 8, 2000, Petitioner applied to the Electrical Contractors' Board (Board) for certification as an electrical contractor pursuant to the "grandfathering" provisions of Section 489.514, Florida Statutes. On or about May 26, 2000, the Board denied Petitioner's application for certification as an electrical contractor because he did not provide information upon which the Board could determine that the examination administered by Construction Exams, Inc. is substantially similar to the state examination. The exam administered by Construction Exams, Inc. contained a technical section and a general business section. However, Petitioner does not recall if the examination included a section or questions on safety. On the Examination Verification Form submitted to the Board as part of Petitioner's application, the Pinellas County Construction Licensing Board verified that the examination taken by Petitioner in 1981 included a technical section and a general business section. However, in response to a question on the form asking if the examination had included "fire alarm questions," the Pinellas County Construction Licensing Board marked the response, "Not sure." The company, Construction Exams, Inc., that administered the examination that Petitioner took in 1981 is no longer in business. Petitioner sought to obtain a copy of the examination from the Pinellas County Construction Licensing Board, but learned that the local board did not have a copy of the examination. Except for the time he was taking the examination, Petitioner never had nor has he been able to obtain a copy of the examination from any source. Although Petitioner does not recall if the examination that he took in 1981 included questions on safety and/or fire alarms, he was able to obtain information about some of the areas covered on the examination. Based on the document Petitioner was able to obtain, it appears that the examination he took included questions relative to the mechanics' lien law, workers' compensation law, first aid, OSHA regulations, federal tax law and the national electrical code. The state's Certified Electrical Contractor Exam includes a technical section, a general business section, and a safety section. The examination consists of 150 multiple choice questions, is an open-book test, and includes both a morning session and an afternoon session. Given that Petitioner took the examination more than 20 years ago, it is understandable that he can not recall all the questions and/or sections that were covered on the examination, and that he was unable to obtain a copy of the examination from any source. However, without a copy of the examination or other documents which sufficiently detail the contents of the examination Petitioner took in 1981, it is impossible to determine if that examination is substantially similar to the state examination. Petitioner failed to provide the Board with any information upon which it could make a determination that the examination he took is substantially similar to the state examination required for certification as an electrical contractor.
Recommendation Base on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Board enter a final order denying Petitioner's application for licensure as a certified electrical contractor. DONE AND ENTERED this 31st day of January, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 31st day of January, 2002. COPIES FURNISHED: Robert C. Decker, Esquire Decker Beeler, P.A. 25 Second Street, North, Suite 320 St. Petersburg, Florida 33701 Barbara R. Edwards Assistant General Counsel Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Anthony B. Spivey, Executive Director Electrical Contractors Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the petition should be dismissed for failure to comply with Section 120.53(5)(b), Florida Statutes.
Findings Of Fact The Petitioner filed bids for ITB No. 4-600-370-K which, if responsive, were the apparent low bid for the Class 3 bid and next to lowest for Class 4 and 5 categories of copier equipment listed in the ITB. [Petition, page 8] On October 16, 1995, the Department posted the intended awards and disqualified all three of Petitioner's bids as nonresponsive. [Petitioner's memorandum in opposition to Respondent's motion for summary recommended order (MEMO), paragraph 1] The Petitioner filed a notice of protest against the disqualification of its bids on October 19, 1995. [MEMO, paragraph 1] The petition for formal hearing was filed with the Department on October 30, 1995. [MEMO, paragraph 1] The petition for formal hearing alleged, in part: SUMMARY OF GROUNDS FOR PROTEST ...The Division of Purchasing ("Division") disqualified all three of Petitioner's bids on vague grounds identified by three words: "Disquality -- Manufacturers Certification. " See Ex. 3 hereto at 1. There are two provisions in the ITB that require the "certification" of the Original Equipment Manufacturer ("OEM"). See Ex. 1 hereto at 3 and 32. Since the State has not seen fit to adequately identify which provision(s) are at issue, Petitioner is required to address both provisions that might apply. Both of these requirements are completely arbitrary, irrational and, most importantly, anticompeti- tive, for the reasons described further in Section 3 below. The "certification" require- ments are arbitrary and irrational because they are not designed to obtain the equipment at issue for the lowest price. Indeed, they ensure that the State will pay higher prices than it would without the requirements. Neither are the "certification" requirements rationally related to the quality of the equip- ment that was bid by Petitioner or the other bidders, including the OEMs. Finally, these requirements are blatantly anticompetitive be- cause they place the right to exclude all other competitors in the hands of the OEMs, which can deny such certification with impunity, ensuring that only those OEM bidders will prevail, as was the outcome here. This preferential treat- ment not only runs counter to the express intent of the legislature to promote free and open competition, it also raises serious anti- trust concerns. Disqualification of Petitioner's bids on the grounds presented by the Division should be reversed and the contract awards should be adjusted accordingly. * * * The preferential treatment provided to Xerox, Kodak, and other OEMs by insertion of the "certification" requirements in this ITB is consistent with a longstanding history of such anticompetitive treatment of independent providers of the equipment and service at issue, resulting in higher prices (but not necessarily higher quality) for the State's taxpayers. Petitioner's recent experience in dealing with the State on these matters is also consistent with this pattern of bias toward OEMs. * * * 3. BASIS OF PROTEST A. The Division of Purchasing Has Acted Arbitrarily and in Restraint of Trade * * * Petitioner has identified two potentially applicable provisions that the Division could be relying on for its disqualification decision. First, in the ITB's definition of "acceptable equipment" it states that bids for classes 3, 4, 5 and 6 shall be for "new and newly remanu- factured equipment only," and that "newly remanufactured equipment must be certified by the manufacturer." Ex. 1 at 3. This pro- vision also states that "remanufactured" equip- ment is not acceptable. Second, the ITB requires certification by the manufacturer as to the copy speed, recommended monthly copy volume, and other basic specifications of the equipment models being bid. Ex. 1 at 32. Both of these provisions are irrational, arbitrary, and clearly anticompetitive. * * * The Division's definition of acceptable equipment bears no relationship to the actual remanufacturing processes used by Petitioner or Xerox. Even if Xerox certifies its own "remanufactured" equipment, the State only receives assurances that the remanufacturing process used by Xerox meets certain standards. Petitioner certifies that its equipment meets certain quality and performance standards, just like Xerox does. There is no rational reason why self-certification of the equipment at issue would provide any different assurances of quality for the State. * * * 2. Certification by the OEM of Copy Speed and Other Basic Specifications Petitioner provided a sworn verification that its equipment meets the copy speed, recommended monthly copy volume, and other minimum specifications for each category of equipment for which it submitted bids. Its certification is based on the same procedures used by Xerox to certify its own equipment. There is no rational reason why that certifi- cation cannot meet the needs of the State. To insist upon certification only from the OEM is an arbitrary and anticompetitive requirement not related to quality or designed to achieve the lowest price. * * * This requirement also is blatantly anticompet- itive. Petitioner is in direct competition with Xerox for the sale and maintenance of the equipment at issue. It is irrational for the Division to expect Xerox to provide such certification to its competitors, even as to this type of uncontroversial information unless award to Xerox is the intended goal. The ITB required a manufacturer's certification which specified a notarized certification of the copy speed, recommended monthly copy volume, and other minimum specifications for the equipment bid. [Exhibit 1 to the Petition] The bids submitted by Petitioner included a certification executed by Advantage's president, Jane Beekmann. [MEMO, paragraph 3] The equipment specified by Advantage was manufactured by Xerox but was remanufactured by Advantage. [MEMO, paragraph 3, and as represented by Petitioner's counsel] Advantage maintains it may certify its remanufactured equipment in the same manner that Xerox certified its equipment. [MEMO, paragraph 5] The ITB provided, in pertinent part: ACCEPTABLE EQUIPMENT ...Bids for Classes 3, 4, 5 and 6 shall be for new and newly remanufactured equipment only. In Classes 3, 4, 5 and 6 newly remanu- factured equipment must be certified by the manufacturer. The ITB further provided, at page 32: This is to certify the manufacturer's recommended monthly volumes and certified copy speed (specify from the glass or document feeder) for the machines listed below. Monthly volume indicates the number of copies which can be made per month by the machine without causing excessive downtime. It does not necessarily denote the maximum number of copies that can be made by that particular machine. NOTE: This must be executed by the manu- facturer and must be notarized. Dealers are not authorized to sign this certification form. Failure to submit this certification with your bid shall result in disqualification of bid. The certifications provided by Petitioner identified the machines proposed by Advantage as the Xerox 5100, the Xerox 1090 w/finisher; and the Xerox 1075 w/finisher. Each of these certifications identified Advantage as the name of the manufacturer. [Exhibit C to the motion not disputed by Petitioner] Petitioner did not manufacture the Xerox 5100, the Xerox 1090 w/finisher; or the Xerox 1075 w/finisher. [Petitioner represents it is the remanufacturer, MEMO, paragraph 2] Petitioner maintains, and for purposes of this order it is accepted, that Advantage is the remanufacturer of the Xerox 5100, the Xerox 1090 w/finisher; or the Xerox 1075 w/finisher. [MEMO, paragraph 2] Petitioner did not timely challenge the specifications for ITB No. 4- 600-370-K.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of General Services enter a final order dismissing the petition of Advantage as an untimely challenge to the ITB specifications. DONE AND ENTERED this 5th day of January, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1996. COPIES FURNISHED: William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Department of Management Services Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Cindy Horne Assistant General Counsel Department of General Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 J. Daniel Leftwich Berry & Leftwich 2000 K Street, Northwest. Suite 450 Washington, D.C. 20006 James Leech Post Office Box 7473 Fort Lauderdale, Florida 33338 Lawrence P. Stevenson Hume F. Coleman HOLLAND & KNIGHT Post Office Drawer 810 Tallahassee, Florida 32302
Findings Of Fact On September 4, 1984, the Department issued its initial Request for Proposal (RFP), RFP No. 2695-84, for office automation equipment to be used in a one-year pilot project at nine locations within the Neil Kirkman Building, Tallahassee, Florida. Under the terms of the RFP the Department had the option, based on the success of the pilot project and contingent upon future legislative fundings, to expand the system over a four year period to 254 locations statewide. Pertinent to this case is an understanding of the nature of the Request for Proposal (RFP) procedure. Under Section 287.057(3), Florida Statutes, where, as here, an agency determines that the use of competitive sealed bidding, an Invitation for Bids (IFB), is not practicable, contractual services shall be procured by an RFP. Section 287.057(3) provides: A request for proposals which includes a statement of the services sought and all contractual terms and conditions applicable to the procurement of contractual services, including the criteria, which shall include, but need not be limited to, price, to be used in determining acceptability of the proposal shall be issued. . . . To assure full understanding of and responsiveness to the solicitation requirements, discussions may be conducted with qualified offerors. The offerors shall be accorded fair and equal treatment prior to the submittal date specified in the request for proposals with respect to any opportunity for discussion and revision of proposals. The award shall be made to the responsible offeror whose proposal is determined in writing to be the most advantageous to the state, taking into consideration the price and the other criteria set forth in the request for proposals. . . . Whereas consideration of an IFB is controlled by cost, consideration of an offer to an RFP is controlled by technical excellence as well as cost. System Development Corp. v. Department of Health and Rehabilitative Services, 423 So.2d 433 (Fla. 1st DCA 1982). Of further import to a resolution of this case, is a provision of the RFP which states: The Bidder's Equipment Agreement Form, Licensed Software or Services Form, or any other Form provided by the bidder, shall not be used since the bidder's proposal and the State's acceptance thereof shall constitute the complete agreement. Bids containing terms and conditions conflicting with those contained in this Request for Proposal may be rejected. The foregoing provision of the RFP, as well as Section 287.057(3), Florida Statutes, renders it clear that upon the State's acceptance the bidder's offer establishes the terms of the contract. Consequently, a responsive and unambiguous proposal is imperative under the RFP procedure. The RFP required that vendors submit their sealed technical and cost responses separately. If technically responsive, the vendor's cost response would be opened and evaluated; if not responsive, the cost response would be returned to the vendor unopened. The RFP granted vendors the opportunity to suggest changes to the RFP and to submit written inquiries. A bidders' conference, held September 26, 1984, was attended by twenty prospective bidders, including Petitioner. Petitioner submitted one written question regarding the bid bond, but submitted no further written inquiries regarding the RFP. The other vendors submitted approximately 160 questions. By Addenda I, dated October 1, 1984, the Department provided its written response to vendor inquiries, as well as certain changes to the RFP. Three subsequent addenda were also issued. The RFP, and addenda, constitute the bid document. Petitioner acknowledges receipt of all addenda. By October 19, 1984, the deadline established in the RFP, seven proposals and thirty no-bids had been filed with the Department. An evaluation committee consisting of Randolph Esser, chief of the Bureau of Information Services for the Department, and primary drafter of the RFP, Randy Walford, the Department's Systems and Programming Manager, and James K. Knerr, a data processing procurement consultant with the Department of General Services, reviewed the technical proposals of the seven vendors. The committee found the technical proposals of five vendors, including Petitioner, to be non-responsive. Accordingly, their cost proposals were returned unopened. The technical proposals of two vendors, Honeywell and Mohawk Data Systems (MDS), were found responsive. On October 24, 1984, the cost bids of Honeywell and MDS were opened. The committee found the cost proposal of MDS to be non-responsive. Accordingly, since only one bidder remained, the bid process was terminated. During the committee's review of the technical responses, it used a checklist which had been prepared by Mr. Esser to facilitate the committee's evaluation of the responsiveness of the various proposals. The checklist consisted of a list of bid requirements, according to RFP page number, followed by a "yes" or "no" space to be checked, as appropriate, if the proposal contained, or failed to contain, a particular requirement of the RFP. If the bidder's response was found technically unqualified, a narrative sheet was attached to the checklist explaining any shortcomings the committee had identified at that time. The committee did not purport to undertake an analytical critique of each vendor's proposal. The checklist and narrative sheet were collectively referred to as a "Technical Qualification Summary." Although the committee members considered the checklist an internal working document designed solely to assist them in evaluating the vendor's technical proposals, a copy of the Petitioner's checklist was released by the Department to Petitioner. Petitioner contends it relied on this checklist in preparing its responses to the rebid, and since the deficiencies found in its rebid were not reflected on the checklist for its initial bid, that the Department should be estopped from raising such deficiencies. On October 31, 1984, the Department issued its rebid, RFP No. 2695-84 (Rebid), which is the subject of these proceedings. The rebid documents were identical to those which comprised the initial bid documents with three exceptions. First, the deadline for filing bids was changed to November 19, 1984. Second, the special provision of the RFP which provided for a bidders' conference and the submission of proposed written changes was deleted. General Condition 5, however, which permitted a vendor to submit written inquiries up to ten days before the bids were opened, remained. Finally, accompanying the rebid documents, was a cover letter to the vendors from Merelyn Grubbs, the Department's chief of the Bureau of General Services. That letter, dated October 31, 1984, provided: Due to failure to receive responsive competitive proposals to this Department's Request for Proposal No. 2695-84 filed October 19, 1984, a rebid is being released. Attached is information reflecting the reasons bidders were found to be non- responsive. Bidders are encouraged to carefully examine their proposals submitted in response to the original Request For Proposal and to rectify any oversights within their responses. The Department will not accept changes to the Request For Proposal or contract. The attachment to Ms. Grubb's letter consisted of a composite of the narrative sheets prepared by the committee on each technically non-responsive proposal. The checklists were not, however, distributed with the rebid documents. On November 19, 1984, the deadline established in the RFP-Rebid, six proposals and fifteen no-bids had been filed. The evaluation committee, comprised of the same membership as the initial committee, first reviewed the technical proposals of the six vendors. The committee found the technical proposals of four vendors, including Petitioner, to be non-responsive, and their cost proposals were duly returned unopened. Petitioner's cost proposal was delivered to it on November 30, 1984. On November 21, 1984, the cost proposals of Honeywell and MDS, who were found technically responsive, were opened and each was fully evaluated. Honeywell emerged the apparent successful bidder. On November 29, 1984, after Honeywell had successfully passed a benchmark test for the proposed equipment, the Department posted its recommended award of the bid to Honeywell. On December 3, 1984, Petitioner filed its notice of intent to protest the award to Honeywell. Petitioner's Petition for Formal Hearing was filed with the Department December 12, 1984, and with the Division of Administrative Hearings on January 16, 1985. As part of its technical evaluation of the six rebid vendors, the committee again utilized its "Technical Qualification Summary," which consisted of the checklist and narrative previously described. The rebid evaluation was performed without reference to the initial technical evaluations or bid responses. The initial and rebid RFP required that a proposal include eleven separate tabs, each tab to describe specifically designated aspects of the proposal. Failure to meet any of the mandatory requirements of the RFP subjected the bid to rejection. On the technical evaluation of the initial bid, Petitioner was found non-responsive by the committee as to Tab 5 (Equipment Maintenance), Tab 6 (Application Support), Tab 7 (Training Support), and Tab 9 (Benchmark). The evaluation of Petitioner's rebid found Petitioner non-responsive as to Tab 4 (Licensed Software), Tab 5, Tab 6, Tab 7, and Tab 10 (Manuals). Petitioner's rebid varied from its response to the initial bid as to Tabs 5, 6, 7 and 9, with minor changes to Tabs 1, 2 and 3. Petitioner did not alter its response to Tabs 4 and 10. Rebid, Tab 4 -- Description of Licensed Software Special condition 4 of the RFP-Rebid required that the vendor include a complete description of each Licensed Software package bid under Tab 4. Petitioner's Tab 4 was found non-responsive because it did not include a description of the UNIX System V Application Processor which it had described in the Management Summary (Tab 1). Tab 1, Management Summary, was required to contain a brief synopsis of the vendor's proposal. Petitioner's Tab 1 proposal specifically stated: IMS (Petitioner) believes the proposed configuration, consisting of a megaframe acting as both a shared resource processor and a UNIX System V-based applications processor, provides the DHSMV with the latest in computer technology while offering substantial expansion capability in both memory and processing power. [Emphasis supplied.] UNIX is an item of software necessary to operate the UNIX applications processor. Petitioner's president, Russell Kelly, and senior consultant, William Childers, testified that the applications processor and UNIX software were only included in the proposal as an option. Therefore, Petitioner argues, Tab 4 was not unresponsive for failing to include UNIX as an item of software. Whatever Petitioner's "intent" may have been, Tab 1 clearly describes the UNIX System V application processor as part of the "proposed configuration," and UNIX is an item of software necessary to operate the application processor. Rebid, Tab 5 -- Equipment Maintenance The RFP contemplated an ultimate system comprised of 145 "locations" within the Neil Kirkman Building, Tallahassee, Florida, and 100 remote "locations" throughout the State of Florida. Consequently, the RFP required that a vendor's proposal include an agreement to provide on-site maintenance statewide. Petitioner's proposal provided: IMS will provide, in accordance with the RFP, on-site maintenance at all DHSMV locations for the Host Office Automation equipment, workstations and peripherals. [Emphasis supplied.] Petitioner's proposal was found non-responsive because it did not specify on- site maintenance was available for remotely located equipment. The "Host Office" was the Neil Kirkman Building. Therefore, the clear import of Petitioner's proposal was that it would provide on-site maintenance for the proposed 154 "locations" -- the automation equipment, workstations and peripherals -- to be located in Tallahassee. Petitioner's proposal did not specify on-site maintenance at the proposed 100 remote "locations." Petitioner asserted that its proposal contemplated on-site maintenance at all Department locations statewide. While that may have been Petitioner's intention, the language it selected to convey its proposal limits on-site maintenance to the Neil Kirkman Building. Rebid, Tab 6 -- Application Support Special Condition 6 of the RFP, Application Support, required that the: Bidder shall present and explain the methods and procedures to be employed by the bidder. "Addenda I" further defined application support to mean: . . . that any software acquired from the successful bidder and installed as a result of this RFP shall be supported by that bidder regardless of the type of software provided. . . . If third party software is involved, bidder shall be the State's primary contact for problem resolution. Petitioner's proposal provided: The Department shall be responsible to appoint a coordinator who will instruct the DHSMV remote sites on the unpacking and installation of the NGEN microcomputer, letter quality printer and modem. These personnel should be capable of loading the software at each remote site. Petitioner's Tab 6 was found non-responsive by the Department since it failed to describe any application support. Petitioner sought to avoid the import of its failure to respond to Tab 6 by suggesting that such failure was not material because certain matters of a support nature could be gleaned from other sections of its proposal. While a detailed review of Petitioner's proposal does reveal some items which could be considered application support, Petitioner's response was not in substantial accord with the RFP mandatory requirement that bids be submitted in the Tab format. Rebid, Tab 7 -- Training Support The RFP, and addenda, required that 12-15 persons be trained. Petitioner's proposal provided: IMS will provide user training in Tallahassee during the Pilot Project for 12 to 15 people. This training will cover the following aspects of the system: Word Processing two 4-hour sessions with 4 persons per session Multiplan two 12-hour sessions R : base two 8-hour sessions Workstation Software Overview one 16-hour session Workstation Operations two 2-hour sessions During years 2 through 4 IMS will conduct the above training courses once every four months at a location mutually agreed upon by the State and IMS. Except where indicated differently, sessions will be held for a maximum of 12 people. [Emphasis supplied.] Petitioner's proposal was found non-responsive since it failed to agree to provide training support for the required 12-15 persons. Specifically, Petitioner's proposal limited word processing training to 8 persons, not the 12- 15 required for the nine workstations/microprocessors to be installed. Rebid, Tab 10 -- Manuals Special condition 10 of the RFP required that: The bidder shall list all the Equipment and Licensed Software manuals required. Petitioner's response did contain a list of all manuals. However, Petitioner also inserted in Tab 10 a three-page "Software Licensing Overview " which, among other things, required a CTIX object code license agreement be signed before UNIX could be delivered. The RFP precluded the signing of any agreements not previously approved by the State. Accordingly, Petitioner's Tab 10 was found technically non-responsive. Petitioner asserted that Tab 10 was responsive and that the "Software Licensing Overview" was merely supplemental information for the UNIX "option." However, since UNIX was not clearly an "option," the Department was justified in interpreting the additional requirements set forth in the "Software Licensing Overview," as additional terms and conditions which it was precluded from accepting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the relief requested by Petitioner, Integrated Microsystems, Inc., be denied, and its petition dismissed with prejudice. DONE AND ENTERED this 15th day of March 1985 at Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March 1985. COPIES FURNISHED: Gary R. Rutledge, Esquire Sparber, Shevin, Shapo & Heilbronner, P.A. 315 South Calhoun Street, Suite 348 Tallahassee, Florida 32301 Judson M. Chapman, Esquire Paul A. Rowell, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 W. Douglas Smith, Esquire Office of General Counsel Honeywell Information Systems, Inc. 6 West Druid Hills Drive, Northeast Atlanta, Georgia 30329 Leonard R. Mellon, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301
Findings Of Fact Petitioner is an unsuccessful candidate for the General Contractor Examination given in February, 1990, (the "examination"). Petitioner passed part three but failed parts one and two. Petitioner subsequently passed part one in June, 1990. Petitioner received a score of 69 percent on part two of the examination and needs only one point to pass part two and the entire examination. 1/ Question 37 is worth one point. Respondent gave credit for answer "(D) 10" in response to question 37. Petitioner selected answer "(A) 0" in response to question 37. Question 37 requires a candidate to apply Section 713.12, Florida Statutes, to the facts provided in the stem to question 37. Section 713.12, in relevant part, gives a spouse 10 days after learning of a contract to object to the signing of a contract by his or her spouse. Question 37 requires a candidate to determine how many days a wife has to object to a contract entered into by a contractor and both spouses but signed only by her husband with her knowledge. Question 37 is not ambiguous. There is only one correct response to the question challenged by Petitioner. The correct response to the question is answer "(D) 10." Petitioner did not choose the correct answer for question 37. The wife is not deemed to waive any objection she has if she does not make it at the time of the signing. The time that the wife learned of the contract and its signing is clear and unambiguous from the facts in the stem of the question. The contract was entered into by both the husband and wife and was signed by the husband with the wife's knowledge. The ordinary and plain meaning of the term "with" connotes "at the same time as." The only type of property that is reasonably contemplated in question 37 is real property. Of the 649 candidates who took the examination, 81 percent selected answer "(D) 10." Of the candidates who scored in the upper 27 percent on the examination, 92 percent selected answer "(D) 10." Only two percent of the candidates selected answer "(A) 0."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's challenge to question 37. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of April 1991. DANIEL MANRY Hearing Officer Division of Administration 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 8th day of April 1991.
