Findings Of Fact On October 26, 1976, the School Board of Orange County and ITEL Data Product Corporation (ITEL) entered into a lease agreement providing for the lease of data processing equipment to the Board from ITEL by which ITEL supplied a computer central processing unit (CPU) and related equipment. Concomitantly, by agreement, ITEL provided for servicing and maintenance of the equipment. In October, 1977, IBM announced its new 303X series of computers with delivery schedules to customers for the newly introduced equipment to take up to two years. IBM has had a long-standing policy, well-known in the data processing industry, of filling customer orders for equipment in the sequence in which they are received, called "sequential delivery." With public agency customers, such sequential orders are not envisioned by the agency nor IBM to be a firm order because of the often protracted procurement process, involving competitive bidding, that public bodies typically have to engage in before making such a major purchase. IBM therefore permits public agencies, such as the School Board in this case, to place non-binding orders in anticipation of a future procurement so that a sequential delivery position will be available to the public agency and thus cause no delay in acquisition of the equipment should IBM become the successful bidder upon a particular procurement. On October 6, 1977, the School Board placed a "reservation" for an IBM 3031 CPU and related data processing equipment. In a letter of October 11, 1978, the School Board informed IBM that this equipment would be needed in approximately November, 1979, subject to availability of funds and subject to IBM being selected as a winning vendor in a competitive bidding process. There was no executed contract or other commitment between IBM and School Board at this point in time. Sometime in the summer of 1979, the School Board, which had become dissatisfied with the service and maintenance it had received from ITEL pursuant to the ITEL lease, engaged certain members of its staff in a study regarding its future data processing equipment needs. The School Board staff study resulted in a determination by the staff, and ultimately by the Board, to acquire additional data processing equipment capacity in excess of the capacity supplied under the ITEL lease. On August 28, 1979, the School Board terminated the ITEL lease effective December 31, 1979, and on or about September 5th, notified ITEL of that termination. On or about October 2, 1979, after determining that it wished to lease new and greater capacity equipment, the School Board Issued an "Invitation to bid" to eleven vendors, providing for the leasing, with option to purchase, of an IBM 3031 CPU and related equipment "or their equal." In response to this invitation to bid, ITEL, Menrex Corporation, as well as IBM, submitted bids and on November 13, 1979, the School Board rejected all the bids as being not responsive, as it had reserved the right to do in the invitation to bid document. The rejection of these bids on November 13, 1979, provided only slightly over a month during which the School Board would have to acquire equipment by rental or purchase and have it installed, since the ITEL lease would be terminated on December 31, 1979. Accordingly, acting on the advice of counsel, the School Board determined that it could legitimately develop an interim emergency leasing plan for meeting its data processing needs upon the expiration of the ITEL lease starting December 31, 1979. This leased equipment was expected to be in place for approximately three to six months or until such time as a new bidding effort and procedure could be developed. The School Board, upon advice of counsel, determined that under its procurement regulations, it could rent equipment on a month to month basis without engaging in a competitive bidding process if it solicited quotations from at least three vendors. Thus, on November 13, 1979, the School Board solicited quotations from three potential vendors, Comdisco, ITEL and IBM, for purposes of securing an interim rental of an IBM 3031 CPU, "or equal", and related equipment. IBM and the Petitioner herein, NAS, which is the successor in interest to ITEL, responded to the solicitation of quotations and NAS informed the Board that it could not supply the particular equipment specified, but offered a NAS CPU at a monthly charge and suggested other related equipment to the Board that NAS considered to be suitable. The School Board staff informed NAS that the CPU unit itself would be a suitable alternative to the IBM 3031 CPU mentioned in the solicitation of quotations. On November 20, 1979, the School Board elected to select IBM's quotation and entered into the lease arrangement with IBM on a month-to-month rental basis. NAS did not challenge that action by the School Board. This rental agreement was entered into on or about December 7, 1979. It was a standard IBM lease and contained a provision whereby IBM offered the customer an option to purchase the equipment, although there was no obligation imposed therein on the customer to purchase the equipment, which was the subject of the lease. The agreement provided that the customer would be contractually entitled to certain "purchase-option credits" or accruals if it was leasing the equipment on a long-term basis and subsequently elected to exercise the option to purchase that same equipment. IBM grants such purchase-option credits as a general rule in month-to-month rental situations such as this, although they are not always a matter of contractual right on behalf of the customer. In any event, no consideration was shown to have been given at the time of entering this rental agreement to the existence or non-existence of any purchase-option credit provision since the only authorized contract at that time was a month-to- month rental agreement. No purchase or option to purchase which would be binding on either party was contemplated since both IBM and the School Board were aware that before a purchase of this magnitude could be made, that a competitive bidding procedure must be utilized. Equipment was installed pursuant to the rental agreement in December, 1979. Neither at the time of the contracting, nor at the time of the installation of the IBM 3031 CPU, did NAS or Comdisco challenge the award of the month-to-month rental contract to IBM. In early 1980, the rental agreement being only temporary, the School Board began studying various alternatives for making a permanent acquisition of needed data processing equipment. In early May of 1980, upon advice of its attorney and various staff members assigned to study the matter, the School Board determined that it would be more economical for the School Board to purchase a CPU and related equipment and service either by cash or installment payment, than to continue renting a CPU and related equipment or to lease those items with an option to purchase as had originally been contemplated in the October, 1979, aborted procurement effort. Thus, it was that on about April 20, 1980, the School Board appointed a committee of five persons to help draft technical specifications to ultimately be promulgated in bidding invitation documents with a view toward acquiring the required data processing equipment through competitive bidding and ultimate purchase. The committee included School Board employees and outside consultants with knowledge of the field of data processing. The members were: Louis Nall, Education Consultant with the Florida Department of Education; Kim Anderson, Information Systems Consultant with the Florida Department of Education; David Andrews, Coordinator, Systems Support, School Board; Mike Staggs, Coordinator, Operations for the School Board; and Craig Rinehart, Director of the Systems Development/Systems Support staff of the School Board. Upon this committee agreeing upon required specifications for the equipment to be acquired, the bidding documents or "invitation to bid" and related supporting documents were developed by the committee in conjunction with assistance of certain other members of the staff of the Board as well as the School Board's attorney. The bid documents were approved by the School Board on May 27, 1980, and they were issued on May 23, 1980, to eight potential vendors, including NAS, IBM, and Amdahl Corporation. The bid documents invited bids for the sale of an IBM 3031 CPU and related equipment "or their equal" (plus service and maintenance) for delivery no later than July 15, 1980. In addition to specifying an IBM 3031 CPU and related equipment "or their equal.," the pertinent specifications contained in the invitation to bid documents provided as follows: The manufacturer of the equipment described in the bid was required to currently manufacture it and offer for sale or lease along with it, an upgradable attached word processor subsystem the same as, or equal to, the IBM 3031 "attached pro- cessor." The Central Processing Unit, or CPU, being bid had to be capable of hosting or accommodating an attached processor. (The purpose of requiring this was so that the School Board could later ob- tain more processing capability if and when it needed it, rather than having to pay for more capacity than it needed at the time of the initial purchase. The vendors were not required by the bidding documents, however, to bid at the time of this procurement for the actual sale of such an attached processor, to be added later.) The School Board reserved the right to reject any and all bids and to waive any informal- ity in any bid. The bid documents initially stated that the School Board would not pay any separately stated interest or finance charges in arriving at its total purchase price for all equipment to be bid. Each bidder was required to offer a certain number of support or maintenance personnel in the Orlando area at the time the bid was submitted and the Board would enter into a separate service and maintenance agreement with the successful vendor. NAS did not protest the bid specifications contained in the invitation to bid documents. NAS did request and receive several interpretations and clarifications of the bid documents from the Board in a manner favorable to NAS. These favorable clarifications or interpretations were as follows: The unavailability of serial numbers for data processing equipment at the time the bid was prepared would not adversely affect the bid's validity. NAS could temporarily rent equipment from other manufacturers which it could not itself deliver by the July 15, 1980, date required in the bid documents. (emphasis supplied) NAS would be deemed by the Board to comply with the requirement that support personnel be present in the Orlando area, provided it had the required support personnel in the area at the time the equipment was actually delivered, rather than at the originally stated time of submission of the bid. The NAS 7000N CPU, which was a computer of greater capacity than the IBM 3031, even after the IBM had the attached processor added, was specifically determined by the Board to be con- sidered as equivalent to the IBM 3031 and thus ap- propiately responsive to that specification and the invitation to bid documents. NAS would be deemed by the Board to comply with the term "manufacturer" even though NAS did not in itself manufacture the equipment, but only marketed it for the maker, Hitachi Corporation. IBM also had a role in determining and securing clarifications or interpretations of the specifications in the invitation to bid from the School Board. Thus, it was that IBM suggested that the Board could save money if it allowed each vendor (not just IBM) to separately state an interest or finance charge in its bid, since IBM was of the opinion that the Internal Revenue Service would not tax as ordinary income to the vendor any separately stated interest charges or financing charges received by such vendor from a public governmental body such as the School Board. Thus, to the extent that vendors could save on income taxes from the total payment, if successful, then the School Board could reasonably expect all vendors to submit correspondingly lower bids in response to the invitation to bid. In response to IBM's request, the School Board amended the bid documents to allow a "separately stated time-price differential" for any item of equipment, not to exceed seven and one-half percent of that item of equipment. At NAS' request, the School Board also amended the bid documents to state that a single central processor (the NAS 7000N), with equivalent power to the IBM 3031 CPU, which was upgradable in the field, would be an acceptable alternative to the requirement that a separate processor must be capable of being attached to the CPU in order to increase data processing capacity. In fact, the NAS 7000N actually has somewhat greater data processing capacity than the IBM 3031. A further amendment to the bid documents provided that in determining the lowest and best bid, the Board would consider each vendor's total charges for service, maintenance and support of the equipment for a one- year period following the award of bids. Additionally, at the request of IBM, an amendment was approved to the bid documents stating that instead of seeking equipment "new and not refurbished," that that requirement would be changed to "new and not refurbished or not more than one-year old." These amendments were sent to all potential bidders. Prior to disseminating the May, 1980, invitation to bid documents, the School Board established an Evaluation Committee to review and analyze bids to be received in response to those documents. The Committee was composed of the following individuals: David Brittain, the Director of the Educational Technology Section, Florida Department of Education; William Branch, Director of Computer Service, University of Central Florida; Louis Nall, Education Consultant, Florida Department of Education; Ronald Schoenau, Director of Northeast Regional Data Center, Florida University System; Craig Rinehart, Director of Systems Development/Systems Support of the Orange County School Board; Mike Staggs, Coordinator, Operations of the School Board; David Andrews, Coordinator, Systems Support, School Board; Dale Brushwood, Director of Production Control, School Board; and David Brown, Attorney for the School Board. The Evaluation Committee was charged with conducting a review and analysis in accord with certain instructions given by the Board and to recommend to the Board the bid the Committee believed was the lowest and best bid. The Committee was instructed that objectivity is of prime importance. Five vendors submitted bids in response to the Invitation documents, as amended. They were NAS, IBM, Amdahl, CMI and Memorex. On June 17, 1980, the bids were opened by the Board. On a recommendation of the Evaluation Committee, the School Board found the bids submitted by CMI and Memorex to be not responsive to the bid documents. The bids submitted by NAS, IBM and Amdahl Corporation were found responsive to the bid document. The Evaluation Committee met for approximately 5 hours evaluating the bids by a number of different criteria, including the consideration of both a one-year and a three-year maintenance cost, as well as an assumption arguendo that the bid documents did not merely call for the IBM 3031 CPU upgradable by the addition of an attached processor, as the specifications actually requested, but instead that the $330,000 (estimated) attached processor was to be bought at the outset from IBM. The result was that the Evaluation Committee reported that the IBM bid was the lowest and best response, even if the cost of a $330,000 attached processor was added to their bid, which was not actually to be the case because the attached processor was not included in this procurement process. Even had that been added to the IBM bid, making it the second lowest dollar bidder, the Evaluation Committee still felt it to be the lowest, best bid. The IBM bid for the 3031 CPU and related equipment was $1,412,643 plus a time-price differential of $58,738 for a total of $1,471,381. The related bid for service, maintenance and support for the first year was $74,201.34, making a grand total for IBM's bid of $1,545,582.34. The NAS bid for the sale of an NAS 7000N CPU and related equipment was the next lowest bid at $1,575,751 plus a time-price differential of $74,722 for a total of $1,650,473. The accompanying bid for service, maintenance and support for the first year was $64,603. The total of the NAS bid was thus $1,715,076. The Amdahl Corporation's bid was higher than either IBM or NAS. In evaluating and in arriving at the decision that the IBM bid was the lowest and best, the Evaluation Committee was concerned with the previous poor record of maintenance and support provided by NAS's predecessor in interest, ITEL Corporation, as well as by the fact that there were then no NAS 7000N computer systems installed in the United States, so that some knowledge of its performance record could thus be gained. Further, the residual value for NAS' equipment had not yet been proven to the extent that IBM's had. Thus, the Committee determined that the IBM bid would still be the lowest and best even had the attached processor, at an estimated cost at time of $330,000, been added to the bid, making it the second lowest in dollar terms because the IBM bid combined the least risk, with the maximum equipment capacity growth flexibility at maximum benefit to the School Board in terms of financial flexibility. The NAS machine would provide more capacity than the Board needed for several years at higher cost, without the Board having an option regarding when that extra capacity should be obtained. The financial flexibility benefit of the IBM bid in terms of allowing for future capacity growth was borne out because the attached processor, by the time it was actually acquired from IBM in 1982, only cost $172,000, due to price decreases made possible by technological advances. The Evaluation Committee unanimously recommended acceptance of the IBM bid as the lowest and best received, and in official session on June 24, 1980, after hearing presentations by an NAS representative, the School Board unanimously voted to award IBM the contract for the subject equipment. On July 1, 1980, the contract submitted by IBM was executed by IBM and the School Board. It provided for a purchase by the Board of the equipment and services described above, payable in two installments, $600,000 on or before August 15, 1980, and the balance on or before July 5, 1981. On July 16, 1980, NAS filed a petition for administrative hearing with the Board, also filing an emergency motion for stay with the School Board, seeking a stay of all further agency action on the contracts with IBM, including any payment, pending disposition of the case. On July 29, 1980, the School Board, after hearing argument of NAS counsel, denied that petition for Administrative Hearing and motion for stay on the basis that the contract between the Board and IBM had already been executed and that the NAS request for a 120.57(1), Florida Statutes, hearing was not timely. On August 4, 1980, NAS appealed the Board's decision to deny a hearing to the Fifth District Court of Appeal and also filed an emergency motion for stay pending appeal. The emergency motion requested the court to prohibit any further action pursuant to the contract, including payment of any sums pending determination of the issues raised in the appeal. On August 15, 1980, the court granted the emergency motion for stay on the condition NAS post a supersedes bond on or before August 18, 1980. On August 26, 1980, the court vacated that order because of failure to timely post the supersedes bond. The School Board then paid IBM the first installment payment of $600,000, when due, shortly thereafter. On May 6, 1981 the Fifth District Court of Appeal ultimately rendered a decision that NAS ". . . should have an opportunity to present evidence and arguments, pursuant to Section 120.57(1)(b)4, Florida Statutes, (Supp. 1980), that its bid was the lowest and best response to the bid document." Thus, the case was remanded to the Board to conduct an administrative hearing, and the Board referred the matter to the Division of Administrative Hearings. On June 4, 1981, NAS filed with the Board a motion for stay to prevent the Board from making the final payment to IBM on the purchase price. After hearing arguments of NAS' attorney, the Board, on June 23, 1981, denied the motion for stay and NAS appealed. On July 3, 1981, the Fifth District Court of Appeal affirmed the School Board's denial of the stay. Final payment was thereafter made by the Board to IBM, thus completing the purchase and all performance of the contract.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a final order be entered by the School Board of Orange County denying the relief requested by the Petitioner. DONE and ENTERED this 22nd day of September, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1983. COPIES FURNISHED: John A. Barley, Esquire 630 Lewis State Bank Building Post Office Box 10166 Tallahassee, Florida 32302 William M. Rowland, Esquire Post Office Box 305 Orlando, Florida 32802 Peter J. Winders, Esquire Nathaniel L. Doliner, Esquire Post Office Box 3239 Tampa, Florida 33601 Daniel E. O'Donnell, Esquire 400 Colony Square, Suite 1111 Atlanta, Georgia 30361 James L. Scott, Superintendent Orange County Public Schools Post Office Box 271 Orlando, Florida 32802
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.
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 James A. Bryington is duly licensed by the FCILB as a general contractor aid as a registered pool contractor holding licenses c 00 1353 and RP 0021851 respectively. In late 1974 or early 1975 he was approached by officers of Trend to qualify their corporation as a duly licensed contractor. At the time Trend was bidding on school projects arid offered Bryington control of one of the schools if their bid was successful plus a small percentage ownership of Trend. On March 4, 1975, Bryington submitted Request for Change of Status (Exhibit 9) to FCILB with the necessary attachments to qualify Trend as a licensed corporate contractor in Florida and Trend was duly certified. Part ownership of Trend was never given to Bryington and no evidence was presented what, if any, other consideration was received by Bryington for his role in qualifying Trend as a licensed general contractor. The school bid was not obtained by Trend and at no time thereafter was Bryington involved in any operations or supervision of the construction projects undertaken by Trend. By contract dated March 31, 1976, Hal H. and Carolyn S. Gill entered into a contract with Trend to construct a residence for them. The contract was executed by Edwin Porter, the president of Trend, on behalf of the contractor. Bryington was unaware of this contract, or of several other construction contracts entered into by Trend, until after the complaint filed herein had been received. Following routine delays in completion of the residence, it was finally completed; and, prior to making the final draw, Porter executed an affidavit of no lien (Exhibit 4) which, when presented to Gill and the bank loaning the money, resulted in the final payment being made. A few days thereafter the Gills learned that at least one contractor and one material man had not been paid in full. Claim of liens (Exhibits 5 and 6) were subsequently filed against Gill's property. Porter was initially contacted by Bryington after the latter became aware of the problem and told Porter to take care of the liens. A few days later Porter advised Bryington that the liens had been taken care of. The subcontractor and the material man made several efforts to collect from Porter the sums owed them for work and materials but without success. Porter has been unavailable and his whereabouts unknown for several months to all persons who testified at these proceedings. No evidence was presented that the draws collected to complete the Gill contract were used on another project or diverted to any other purpose. The only evidence offered was that upon completion of the dwelling and collection of the final draw subcontractors and material men were unpaid. Evidence was presented that Trend failed to satisfy a subcontractor on another residence constructed for Norman Scoggins and Scoggins had to pay the subcontractor to keep from having a lien filed against his property. Since no reference was made to this transaction in the Administrative Complaint this evidence is irrelevant to these proceedings and is disregarded.
Findings Of Fact As project architect under contract to HRS, Greenleaf/Telesca Planners, Engineers, Architects, Inc. (Greenleaf) prepared a project manual (manual). The manual invited contractors to bid on a contract for construction of the forensic services building at the South Florida State Hospital in Pembroke Pines, Florida, project No. HRS-0278. The manual contained specifications for a base contract covering construction of the building itself, and for four alternate additive bids, covering various equipment and furnishings. The first alternate called for installation of mess hall tables and seats. For the first alternate, the manual specified tables and seats manufactured by Folger Adam Company, their model number 522, or "upon prior approval" the equivalent. From the floor plan it is clear that 24 tables and corresponding seats would be required. The language of the manual describing alternate No. 1 presents no particular ambiguity or difficulty. The Folger Adam Company is well known in the construction business. Harold Wayne Blackwell, petitioner's president, used the manual in preparing Blackwell's bid for the contract. Blackwell bid on the base contract and on each of the four alternates. There are seven or eight contract hardware suppliers in Dade and Broward Counties, all of whom have access to Folger Adam Company products. Folger Adam Company does not have exclusive distributors. To determine the price of the tables, Mr. Blackwell telephoned several contract hardware suppliers, including Christensen Hardware Services, Inc. (Christensen). Christensen quoted Blackwell a price of ten thousand eight hundred dollars ($10,800.00) for twenty-four sets of Folger Adam model number 522 tables and seats. Blackwell submitted a bid of eleven thousand dollars ($11,000.00) on alternate No. 1. Forsythe bid on the base bid but did not bid on alternate No. 1, because Forsythe failed to obtain a quote on the tables and seats, before preparing its bid. Richard B. Solomon, Greenleaf's project manager for the forensic services building, opened the bids on March 20, 1979. As tabulated by Greenleaf, the bids were: Base Bid Alt. No. 1 Alt. No. 2 Alt. No. 3 Alt. No. 4 M.D. Forsythe Construction Co. $375,000 $ --- $50,842 $27,220 $33,020 Porfiri Construction Co. 406,200 7,000 45,534 25,315 44,130 Wayne Blackwell and Co., Inc. 397,735 11,000 47,000 25,000 35,000 Ed Ricke & Sons, Inc. 405,000 14,900 52,000 28,300 47,650 McKee Construction Co. 407,000 --- 45,000 28,000 --- L.G.H. Construction Corp. 524,176 18,014 43,464 24,712 35,048 Creswell Construction Co. 394,000 41,000 43,000 23,000 33,000 Petitioner's exhibit No. 2. On the base bid, Forsythe was lowest, Creswell Construction Company next lowest, and Blackwell third lowest. Among contractors who bid on the base bid and all alternates, Blackwell's combined bids were lowest for the base bid plus alternate No. 1, the base bid plus alternates Nos. 1 and 2, the base bid plus alternates Nos. 1, 2 and 3, and the base bid plus alternates Nos. 1, 2, 3 and 4. Mr. Solomon was aware of two telephone calls received by Greenleaf during the time for preparation of the bids, inquiring about the price of the tables and seats. In examining the bids, he noticed that two contractors had not bid on alternate No. 1, and that the base bids as well as the bids on alternates Nos. 2, 3 and 4 were "pretty tight" as compared to the range of bids on alternate No. 1. From looking at the bids on alternate No. 1, it was hard for Mr. Solomon to tell what a reasonable price for the tables and seats was. Mr. Solomon recommended to HRS that the bids on alternate No. 1 be thrown out. Charles Robert Yates, an architect employed by HRS, concurred in Mr. Solomon's recommendation. He was under the impression that funding for the project would not be available unless the contract was let before April 1, 1979. Mr. Yates could not recall such diversity among bids in his thirty-year career, yet he had no difficulty learning what the tables and chairs cost when he called architectural firms to find out. After the bids were opened, Blackwell promptly protested Forsythe's bid. Under the heading of alternates, the manual states: If the Base Bid is within the amount of funds available to finance the construction contract and the Owner wishes to accept alternate additive bids, then contract award will be made to that responsible Bidder submitting the low combined bid, consisting of the Base Bid plus alternate additive bids (applied in the numerical order in which they are listed in the Bid Form). Petitioner's exhibit No. 1, Paragraph B-9, Alternates. HRS wrote Blackwell on April 3, 1979, denying Blackwell's protest and stating, as reasons: M.D. Forsythe Construction Co., Inc. did not ignore Alternate No. 1, but completed that section of their bid by stating "No bids received on this item." Proposals for Alternate No. 1 ran the gamut for "No Bid" to prices extending from $7,000 to $41,000. The Department holds, as concurred in by the attached letter from our consultants, that there was confusion in the marketplace regarding the intent of Alternate No. 1, as attested to by the disparity among the proposals, and therefore we choose not to consider Alternate No. 1. Provisions for this deletion include Sections B-17, B-22 and B-24 of the Contract Documents. Petitioner's exhibit No. 3. HRS then awarded the base contract and additive alternates Nos. 2 and 3 to Forsythe, and gave orders to proceed with construction on May 7, 1979. After construction began, Mr. Solomon wrote Forsythe to inquire what Forsythe would charge to install the tables and seats called for by additive alternate No. 1. Forsythe eventually agreed to do it for eleven thousand dollars ($11,000.00), after first quoting a higher price. On August 1, 1979, Greenleaf prepared a change order at HRS' behest, directing Forsythe to install the tables and seats originally called for by additive alternate No. 1, at a price of eleven thousand dollars ($11,000.00). Other provisions of the manual relied on by the parties include the following: B-17 PREPARATION AND SUBMISSION OF BIDS Each Bidder shall copy the Proposal Form on his own letterhead, indicate his bid prices thereon in proper spaces, for the entire work and for alternates on which he bids. Any erasure or other correction in the proposal may be explained or noted over the signature of the Bidder. Proposals containing any conditions, omissions, unexplained erasures, alternations, items not called for or irregularities of any kind may be rejected by the Owner. . . DISQUALIFICATION OF BIDS Any or all proposals will be rejected if there is reason to believe that collusion exists among the Bidders and no participants in such collusion will be considered in future proposals for the same work. Proposals in which the prices obviously are unbalanced will be rejected. Falsification of any entry made on the Contractor's bid proposal will be deemed a material irregularity and will be grounds, at the Owner's option, for rejection. REJECTION OF BIDS The Owner reserves the right to reject any and all bids when such rejection is in the interest of the State of Florida, and to reject the proposal of a Bidder who is not in position to perform the contract. AWARD OF CONTRACT The contract will be awarded as soon as possible to the lowest qualified Bidder provided his bid is reasonable and it is in the best interest of the Owner to accept it. The Owner reserves the right to waive any informality in bids received when such waiver is in the interest of the Owner. The lowest bidder will be determined by adding to the Base Bid such alternates, in numerical order, as available capital funds will allow. The Agreement will only be entered into with responsible contractors, found to be satisfactory by the Owner, qualified by experience, and in a financial position to do the work specified. Each Bidder shall, if so requested by the Owner, present additional evidence of his experience, qualifications, and ability to carry out the terms of the contract, including a financial statement. Petitioner's exhibit No. 1. At no time did Forsythe attempt to influence the award of the contract improperly. At the time of the final hearing, the project was approximately 95 percent complete.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That, in the future, HRS adhere to the letter of language like that contained in paragraph B-9 of the manual whenever such language is used in an invitation for bids. DONE and ENTERED this 6th day of March, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Louis L. LaFontisee, Jr., Esquire 200 South East First Street, Suite 802 Miami, Florida 33131 Leonard Helfand, Esquire 401 North West 2nd Avenue Room 1040 Miami, Florida 33128 Richard Morgentaler, Esquire 1600 North East Miami Gardens Drive North Miami Beach, Florida 33179 =================================================================
The Issue Whether the application of Petitioner for registration as an electronic repair dealer should be denied.
Findings Of Fact Petitioner Jack Resnick d/b/a Smart Service petitioned for an administrative hearing upon receipt from the Respondent of a Notice of Intent to Deny License or Registration. The hearing was scheduled for November 27, 1978 at 2:00 p.m. in Tallahassee, Florida. Prior to the hearing the parties requested that the Hearing Officer write a Recommended Order upon submission of "Stipulation of Facts and Questions of Law" filed jointly by the parties, copy of which is attached hereto and made a part hereof. The instruments filed in this case reflect that in February, 1978 Petitioner Jack Resnick applied to the Respondent, Division of General Regulation, for an electronic repair dealer registration under the provisions of Chapter 468, Florida Statutes. In April, 1978 the Respondent notified Petitioner of its intent to deny said application for registration for the reason that applicant Jack Resnick intended to employ one Arthur Resnick as a repair work person In the business. Previously, in 1976 Arthur Resnick had been denied a registration certificate as an electronic service dealer by the Respondent, having been determined to be unfit and ineligible to be registered as an electronic repair service dealer. The Recommended Order entered in that cause, which was adopted as Respondent's final order, made the following; findings of fact: Arthur Resnick caused to be advertised in local (Florida)newspaper advertisements which would the public believe Arthur Resnick Television Repair Service was registered with the Bureau of Electronic Repair when, in fact, it was not. Arthur Resnick had been asked to disclose on his application for registration whether he had been convicted of a felony, misdemeanor, or any infraction other than traffic viola- tions to which Arthur Resnick answered "no" when, in fact, Arthur Resnick had been convicted of three counts of theft by deception involving the repair of television sets by the Court of Common Pleas in Montgomery County, Pennsylvania. The Hearing Officer concluded that: The acts and conduct of the Petitioner in operating without a registration; advertising in a leading and deceptive manner; making false statements as an inducement to the public to authorize repair, and his failure to answer truthfully to certain questions on his sworn application for registration is good and sufficient cause for the director of the Department of Business Regulation, Division of General Regulations to deny the Petitioner a registration certificate as an electronic service dealer. The order of the Respondent adopted the Recommended Order noting that it had received no exceptions to the Recommended Order from either party and thereupon denied the application for registration as an electronic service dealer filed by Arthur Resnick. The application of Petitioner Jack Resnick indicates that he is to be the sole proprietor of the business Smart Service. It indicates that Arthur Resnick, who has the same address as the Petitioner, is to do repair work with a possible employee named Jerry Cohen. Respondent gave no other reason for the denial of Petitioner's application except for the indicated employment of Arthur Resnick.
Recommendation Retract the Notice of Intent to Deny License or Registration which was based on the fact that Arthur Resnick was the prospective employee of the Petitioner. Grant Petitioner's application for registration as an electronic repair dealer providing he presently meets the requirements of the Respondent. DONE and ENTERED this 20th day of December, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: David M. Hudson, Esquire Deputy General Counsel Depariment of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Alexander M. Siegel, Esquire 1303 North State Road 7 Margate, Florida 33062 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF GENERAL REGULATION DEPARTMENT OF BUSINESS REGULATION JACK RESNICK and SMART SERVICE, Petitioner, vs. CASE NO. 78-1687 DEPARTMENT OF BUSINESS REGULATION, DIVISION OF GENERAL REGULATION, Respondent. /
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
The Issue Whether Petitioner is entitled to licensure as a certified contractor pursuant to the "grandfathering" provisions of section 489.514, Florida Statutes.
Findings Of Fact At all times material hereto, Petitioner held a Registered Electrical Contractors license, No. 13012890, and a Registered Alarm System Contractors I license, No. 12000229, that authorized him to engage in the same in Broward County, Florida. Petitioner's licenses are active and in good standing; he has not been the subject of any complaints filed with, or discipline imposed by, the local licensing authority. Petitioner operates a business named "D" Electrician Technical Services, Inc., in Pompano Beach, Florida. In the case styled State v. Terrance Davis, Case No. 082026CCFICA, in the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, Petitioner was charged with burglary of a structure with assault or battery and felony battery. Petitioner's unrefuted testimony was that after his arrest in October 2008, he was detained without bond pending his trial.1/ On November 17, 2009, the Florida Department of Revenue ("DOR") issued to Petitioner a Notice of Non-Compliance with Support Order and Intent to Suspend License for the nonpayment of a previously existing child support order. The notice was sent to 7906 Southwest Seventh Place, North Lauderdale, Florida 33068. At the time the notice was sent, Petitioner claims to have been detained in the Broward County jail. The criminal charge of felony battery was nol prossed on December 14, 2009. On December 15, 2009, Petitioner proceeded to trial on the remaining charge and was acquitted by a jury. On December 27, 2009, DOR issued a Notice to Suspend License for Nonpayment of Support to the Division of Professions. Said notice provided that, "[w]e gave [Petitioner] notice of nonpayment and intent to suspend license(s) more than 30 days ago. [He has] not complied with the support order, a written agreement if there is one, or timely contested the action." The notice further directed that, "[u]nder section 409.2598(5)(b), Florida Statutes, you must suspend the license, permit or certificate that allows the person to engage in an occupation, business or recreation." In January 2010, during the course of a traffic stop, Petitioner was advised by a law enforcement officer that his Florida driver's license was suspended. On February 8, 2010, Petitioner entered into a Written Agreement for Past Due Support with DOR wherein he agreed to make a lump-sum payment and additional monthly payments. DOR agreed that it would not suspend or deny his driver's license as long as Petitioner complied with the terms of the agreement. Petitioner credibly testified that thereafter, when he "resumed his Articles of Incorporation," he realized his professional licenses had also been suspended. On February 25, 2010, DOR issued a Request to Reinstate License to the Division of Professions. Said request provided as follows: The license(s) of the parent named below, was suspended for nonpayment of support. Please reinstate the license(s). The parent is paying as agreed or ordered, the circuit court has ordered reinstatement, or the parent is otherwise entitled to have the license(s) reinstated under section 409.2598(4)(b), Florida Statutes. Court Case Number: 060015893CA-06 Parent's Name: TERRENCE A DAVIS Mailing Address: 7905 SW 7th Pl, North Lauderdale, FL 33068-2123 License Number(s) and Type(s): 12000229 Reg. Alarm System Contractors I (EY), 13012890 Reg. Electrical Contractors (ER) On or about July 23, 2013, Petitioner applied for certification as an electrical contractor pursuant to the "grandfathering" provisions of section 484.514, Florida Statutes.2/ Included with Petitioner's application, was a personal financial statement wherein Petitioner itemized his assets and liabilities. Petitioner's personal financial statement concluded that his personal net worth was $56,400.00. Also included in Petitioner's application was a business financial statement for "D" Electrician Technical Services, Inc., that similarly itemized Petitioner's business assets and liabilities. Petitioner's business financial statement concluded that the business's net worth was $35,945. By a Notice of Intent to Deny, dated October 18, 2013, the Board denied Petitioner's application for two reasons: within the previous five years, Petitioner's contracting license was suspended for failure to pay child support; and Petitioner's application failed to demonstrate that he had the requisite financial stability as required by rule 61G6- 5.005(3) and requisite net worth as required by rule 61G6-5.004. Petitioner credibly testified as to the figures supporting the itemization of both his personal and business assets and liabilities and respective net worth contained in the application. Petitioner conceded that a credit report, dated July 8, 2013, documents that he had a late mortgage payment in April 2010; that in 1997, his child support arrearage was placed in collection; and that an account, with a current balance of $3110.00, was placed for collection. Petitioner contends said account concerned a one-year lease that he was unable to satisfy at the time due to his detainment for the above-noted criminal charges. Respondent presented the testimony of Clarence Kelly Tibbs. Mr. Tibbs is a state-certified electrical contractor who served on the Board for approximately 13 years. Mr. Tibbs was not on the Board at the time the Board considered and rejected Petitioner's application. The undersigned deemed Mr. Tibbs as an expert in electrical contracting. Mr. Tibbs did not testify concerning the areas of his expertise (electrical contracting), but rather, offered opinions on the propriety of the Board's denial of Petitioner's application. Mr. Tibbs testified that, "as an ex-Board member," looking at Petitioner's personal and business financials, there were several problems. After itemizing his concerns, Mr. Tibbs concluded that, "[h]owever, looking at the financials that you've got in front of me, although I have some problems with them, I could probably go ahead and approve them."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Department of Business and Professional Regulation, Electrical Contractor's Licensing Board, enter a final order denying Petitioner's application for licensure as a certified electrical contractor. DONE AND ENTERED this 7th day of May, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 2014.
