The Issue The issue for determination in this proceeding is whether Petitioner should receive credit for any of the 15 challenged questions in two parts of the certified general contractors examination given in June, 1993.
Findings Of Fact Petitioner took the general contractors examination given on June 29- 30, 1993. The examination consisted of three parts. The minimum score required to pass each part was 70. Petitioner passed the Business and Finance part of the examination with a score of 70. Petitioner failed the other two parts of the examination. He received a score of 61 on the Contract Administration part of the examination and a score of 67 on the Project Management part of the examination. Petitioner challenged eight questions on the Contract Administration part of the examination and seven questions on the Project Management part of the examination. The part of the examination on which each question appeared, the question number, the correct answer, and the answer chosen by Petitioner are as follows: EXAM PART QUESTION CORRECT ANSWER PETITIONER'S ANSWER Contract Admin. 2 B C Contract Admin. 5 D A Contract Admin. 10 D C Contract Admin. 11 C D Contract Admin. 13 C B Contract Admin. 20 C D Contract Admin. 22 C D Contract Admin. 37 B D Project Mgmt. 7 C D Project Mgmt. 9 D C Project Mgmt. 10 C A Project Mgmt. 11 B C Project Mgmt. 13 B A Project Mgmt. 23 D A Project Mgmt. 37 A D For each of the foregoing questions, the correct answer was the answer identified by Respondent and not the answer chosen by Petitioner. Petitioner presented no competent and substantial evidence to support his answers. The challenged questions were clearly and unambiguously worded. The challenged questions contained enough correct information to allow the candidate to select the correct response. The correct response for each of the challenged questions was supported by approved reference materials. The correct response did not require knowledge which was beyond the scope of knowledge that reasonably could be expected from a candidate for licensure. All current techniques were taken in account when the correct response was determined by Respondent. The examination was open book. Petitioner was allowed to refer to the Standard Building Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and therein DENY Petitioner's challenge to the questions at issue in this proceeding. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 27th 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 27th day of April, 1994. COPIES FURNISHED: Richard Hickok Executive Director Department of Business and Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel Department of Business and Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, FL 32399-0792 Vytas J. Urba, Esquire William M. Woodyard, Esquire Department of Business and Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, FL 32399-0792 Mr. Behzad Khazraee 142 Tollgate Trail Longwood, FL 32750
The Issue The issue for consideration in this case is whether Petitioner should receive additional credit for his answers to questions 121 and/or 222 on the civil/sanitary engineer examination administered on April 18 and 19, 1997.
Findings Of Fact At all times pertinent to the issues herein, the Board of Professional Engineers was the state agency in Florida responsible for the licensing of professional engineers in this state and for the regulation of the engineering profession. Petitioner graduated from the University of South Florida in December 1990, with a degree in geo-technical engineering, a sub-specialty of civil engineering. He is not, nor does he claim to be, a structural engineer. He has practiced in the field of geo-technical engineering since his graduation and has taught soil mechanics at the master’s level at the university. He sat for the professional engineer’s examination administered by the Respondent in April 1997. Thereafter, by grade report dated July 29, 1997, the Department’s Bureau of Testing notified Petitioner that he had earned a score of 69.00 on the examination he had taken. Since a passing score for the examination which Petitioner took is 70.00, Petitioner failed the examination. Petitioner requested a formal hearing to challenge the grading of examination questions numbers 121 and 222, on each of which he earned a score of four. The maximum obtainable score on each question is ten. On question 121, the candidate is given a situation involving a sheet-pile wall section, and is asked to (a) sketch and dimension the earth pressure diagram acting on the wall after the proposed dredging has been completed; and (b) determine the factor of safety against the kick-out after the dredging. Scoring of the Petitioner’s examination was done by the National Council of Examiners for Engineering and Surveying (Council). The Council determined that, with regard to requirement (a), Petitioner’s pressure distribution was of the correct form, but the labeling of the distribution had a major error. Petitioner assumed an incorrect factor which was deemed to be a major error calling for, under the approved scoring plan, a minimum four-point deduction. With regard to requirement (b), Petitioner chose not to solve for the factor of safety as he was required to do. This resulted in a minimum reduction of two additional points. This evaluation was concurred by Mr. Adams, the Board’s expert witness, in his testimony at hearing. Mr. Adams noted that where, as here, the engineer is dealing with soil mechanics, the at-rest conditions are one thing. The active and passive (A and P) conditions are the more dynamic, and here, where the problem calls for removal of soil from in front of a retaining wall, A and P pressures should have been used instead of at-rest pressures. Adams also concluded that Petitioner’s cited authority was not valid in this case. This authority used the at-rest pressure coefficient when all the authorities Mr. Adams could find used the A and P pressure coefficient. Petitioner admits that the coefficients utilized in determining earth pressures are A, P and at-rest (O). In this case, the whole problem must be considered. A tie-back system is presented, and in that case the sheet pile and the tie-back are assumed to hold the soil behind the wall in an at-rest condition so long as the sheet-pile wall does not move or deflect. Petitioner contends that Mr. Adams’ determination that removing the soil would destroy stasis and cause the wall to move is erroneous. In fact, he contends, the sheet-pile wall and the anchor system must move before the Board’s argument holds. He cites an authority in support of his position which was also cited to the Council scorer who, at Petitioner’s request, rescored his answer. The Council official who rescored Petitioner’s answer did not have access to Petitioner’s cited authority but rejected the citation as either incorrectly cited or incorrect in itself. Petitioner’s error called for a four-point reduction in score as to (a). Further, as to requirement (b), Petitioner, though asked to solve for the factor of safety against rotation, chose not to do so. This calls for an additional two-point reduction. Independent review of Petitioner’s answer, including an evaluation of his cited authority, and consideration of the other evidence pertinent to this issue, including his testimony, that of his witness, and the rescoring results by the Council, does not satisfy the undersigned that Petitioner’s answer merits additional credit. The score of four, as awarded, is appropriate. Question 222 deals with a cantilevered retaining wall with a wide foundation and piling in two rows, some in front and some in back, to support it. The candidate is required to determine the total lateral thrust per linear foot acting on the wall in issue; to determine the vertical load on a front row pile; and to explain possible ways that the pile foundation can resist the lateral thrust. According to Mr. Adams, Petitioner incorrectly calculated the lateral load by omitting the proper depth of the wall. With regard to the vertical loading, the Petitioner did not get to the proper vertical load on the front pile but received partial credit for other calculations he performed. As for the last requirement, one part of Petitioner’s answer was incorrect in that he did not explain passive pressures properly. What Petitioner mentioned was incorrect, and he did not mention battering of the piles, which was expected to be noted. According to Mr. Adams, Petitioner got two parts of the question correct, each of which is worth two points. Therefore, he received a score of four points. Petitioner contends that the Board and the Council are being too restrictive in their approach to the problem and not taking into account the whole problem. He claims that though he arrived at the wrong figure in calculating the lateral load, that does not justify his receiving no credit for that segment since the method he used for calculating the thrust was correct. He admits to having erroneously neglected the weight of the soil, but contends that his method of determining the solutions to resist lateral thrust is as good as that of the Board and the Council. Petitioner was given only partial credit for his use of the correct equation to calculate the lateral thrust because he used the wrong depth. His answer to the second part was wrong in that he completely neglected the weight of the soil and calculating the pile load, even though he used the correct figure to multiply the load per foot of the wall. His answer to the third requirement, dealing with lateral resistance of the pile, was insufficient to warrant a full award. Taken together, his answer, in the opinion of the Council’s scorer, merited only an award of four points. Petitioner did not show sufficient basis for increasing this award. The evidence presented by the Board clearly established that both questions in issue provided enough information to allow the candidate to answer them correctly, and both are questions that a candidate for licensure should be able to answer. The scoring plan for these questions was not shown to be inappropriate, and there is no evidence that it was not properly utilized.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Professional Engineers enter a Final Order in this matter denying Petitioner additional credit for his answers to Questions 121 and 222 on the April 1997 Civil Engineer Examination. DONE AND ENTERED this 30th day of April, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1998. COPIES FURNISHED: Henri V. Jean 3273 Tanglewood Trail Palm Harbor, Florida 34685 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Did Petitioner pass the Mechanical Engineers Examination he took on April 24, 1998?
Findings Of Fact On April 24, 1998, Petitioner took the Mechanical Engineers Examination. He received a score of 69 for his effort. A passing score was 70. The Mechanical Engineers Examination was administered under Respondent's auspices. As alluded to in the preliminary statement, Petitioner challenged the score received on problem 146. The maximum score available for that problem was ten points. Petitioner received eight points. In accordance with the National Council of Examiners for Engineering and Surveying Principles in Practice of Engineering Examinations for spring 1998, score conversion table - discipline specific, Petitioner had a raw score of 47 which equated to a conversion of 69, to include the eight raw points received for problem 146. In addition, the examination provided a scoring plan for problem 146, which assigns scores in increments of two points from zero to ten. To pass, it would be necessary for Petitioner to receive an incremental increase of two points, raising his score from eight points to ten points. This would give him a raw score of 49 points. According to the score conversion table - discipline specific, that would give Petitioner 71 points. According to the scoring plan for problem 146 to receive the ten points, Petitioner would have to demonstrate: Exceptional competence (it is not necessary that the solution to the problem be perfect) generally complete, one math error. Shows in-depth understanding of cooling load calculation psychrometrics. Problem 146 required Petitioner to: Determine the required cooling coil supply air quantity (cfm) and the conditions (°F db and °F wb) of the air entering and leaving the coil." Petitioner was provided a psychrometric chart to assist in solving problem 146. The examination candidates were also allowed to bring reference sources to the examination to assist in solving the examination problems. Petitioner brought to the examination, the Air-Conditioning Systems Design Manual prepared by the ASHRAE 581-RP Project Team, Harold G. Lorsch, Principal Investigator. Petitioner used that manual to determine the wet-bulb temperature of the air entering the coil. In particular, he used an equation from the manual involving air mixtures. For that part of the solution he arrived at a temperature of 65.6°F wb. According to the problem solution by Respondent's affiliate testing agency, reference ASHRAE Fundamentals Chapter 26, the coil entering wet-bulb temperature taken from the psychrometric chart was 66.12°F wb. The scorer in grading Petitioner's solution for problem 146 placed an "x" by the answer provided 65.6°F wb and wrote the words "psychrometric chart." No other entry or comment was made by that scorer in initially reviewing the solution Petitioner provided for that problem. This led to the score of eight. The scoring plan for problem 146 for the April 1998 examination taken by Respondent equates the score of eight as: MORE THAN MINIMUM BUT LESS THAN EXCEPTIONAL COMPETENCE Either a) Provides correct solution to problem with two math errors or incorrect dry-bulb or wet-bulb for coil entering or leaving conditions or minor total cooling load error, or b) Provides correct solution to items c and d correctly and minor math errors in items a and b of Score 6 below. Petitioner was entitled to review the results of his examination. He exercised that opportunity on September 21, 1998, through a post-examination review session. Petitioner requested and was provided re-scoring of his solution to problem 146. According to correspondence from the National Council of Examiners for Engineering and Surveying to the Florida Member Board from Patricia M. Simpson, Assistant Supervisor of scoring services, the score did not change through re-scoring. In this instance, the October 14, 1998 correspondence on re-scoring states, in relation to problem 146: Incorrect methodology used in calculating coil entering wet-bulb temperature. Incorrect coil entering wet-bulb temperature provided. No calculation provided for coil leaving temperature conditions. The coil leaving wet-bulb temperature in Respondent's proposed solution was 53.22°F wb taken from the psychrometric chart. Petitioner's solution for the coil leaving wet-bulb temperature taken from the psychrometric chart was 53.3°F wb. At hearing Respondent did not provide an expert to establish the basis for point deduction in the original score and the re-scoring of Petitioner's solution for problem 146. Moreover, Respondent did not present expert witnesses to defend the commentary, the preferred written solution in its examination materials. Consequently, Respondent's preferred solution constitutes hearsay about which no facts may be found accepting the validity of Respondent's proposed solution, as opposed to merely reporting that information.1 By contrast, Petitioner provided direct evidence concerning the solution provided for problem 146 in response to the criticisms of his solution that were unsupported by competent evidence at hearing. More importantly the criticisms were responded to at hearing by Geoffrey Spencer, P.E., a mechanical engineer licensed to practice in Florida, who was accepted as an expert in that field for purposes of the hearing. As Petitioner explained at hearing, he used the Air- Conditioning Systems Design Manual equation to arrive at the coil entering wet-bulb temperature, which he believed would provide the answer as readily as the use of the psychrometric chart. (Although the psychrometric chart had been provided to Petitioner for solving problem 146, the instructions for that problem did not prohibit the use of the equation or formula.) Petitioner in his testimony pointed out the equivalency of the process of the use of the psychrometric chart and the equation. Petitioner deemed the equation to be more accurate than the psychrometric chart. Petitioner had a concern that if the answer on the coil entering wet-bulb temperature was inaccurate, this would present difficulty in solving the rest of problem 146 because the error would be carried forward. Petitioner pointed out in his testimony that the solution for determining the coil entering wet-bulb temperature was set out in his answer. The answer that was derived by use of the formula was more time consuming but less prone to error, according the Petitioner's testimony. Petitioner points out in his testimony that the answer he derived, 65.6°F wb, is not significantly different than Respondent's proposed solution of 66.12°F wb. (The instructions concerning problem 146 did not explain what decimal point of a degree the candidate had to respond to in order to get full credit for that portion of the solution to the problem.) Petitioner in his testimony concerning his solution for the coil leaving wet-bulb temperature indicated that the calculation for arriving at that temperature was taken from the psychrometric chart and is sufficiently detailed to be understood. Further, Petitioner testified that the degree of accuracy in which the answer was given as 53.3°F wb, as opposed to Respondent's proposed solution of 53.22°F wb, is in recognition of the use of the psychrometric chart. Petitioner questions whether the proposed solution by Respondent, two decimal points, could be arrived at by the use of the psychrometric chart. In relation to the calculation of the coil entering wet-bulb temperature, Mr. Spencer testified that the formula from the Air-Conditioning Systems Design Manual or the psychrometric chart could have been used. Moreover, Mr. Spencer stated his opinion that the solution for coil entering wet-bulb temperature of 65.6°F wb by Petitioner is sufficiently close to Respondent's proposed solution of 66.12°F wb to be acceptable. Mr. Spencer expressed the opinion that Petitioner had correctly used the formula from the manual in solving the coil entering wet-bulb temperature. Mr. Spencer expressed the opinion that the psychrometric chart is an easier source for obtaining the solution than the use of the formula from the manual. In Mr. Spencer's opinion, the formula shows a more basic knowledge of the physics involved than the use of the psychrometric chart would demonstrate. In relation to the coil leaving wet-bulb temperature, Mr. Spencer expressed the opinion that Petitioner had adequately explained the manner of deriving the answer. Further, Mr. Spencer expressed the opinion that the answer derived was sufficiently accurate. The testimony of Petitioner and opinion of Mr. Spencer is unrefuted and accepted.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which finds that Petitioner passed the Florida Board of Professional Engineers April 24, 1998, Mechanical Engineers Examination with a score of 71. DONE AND ENTERED this 22nd day of February, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 22nd day of February, 1999.
The Issue Is Petitioner entitled to additional credit on the Professional Engineer Licensure Examination sufficient to receive a passing score?
Findings Of Fact By the stipulations recited in the preliminary statement, Petitioner needed only to demonstrate entitlement to one raw point in order to achieve an adjusted score of 70 (raw score of 48) so as to pass the Florida Professional Engineer Examination, created and administered by the National Council of Examiners for Engineers and Surveyors. The disputed part of the challenged question dealt with the equations necessary to calculate the amount of excess air applied to a combustion source that produced flue gas which contained specified concentrations of oxygen, carbon dioxide, carbon monoxide, and nitrogen. This presents a chemical engineering problem. Subpart one of the question provided four reaction equations. Petitioner selected answer "E". The Board claims another answer is the correct answer. Subpart one of the question required that the examinee select an answer showing the minimum number of equations needed to solve the problem. The answer designated by the Board contained two equations. The answer selected by Petitioner contained three equations. Petitioner, Petitioner's Professional Engineer expert in combustion, and the Board's Professional Engineer expert in chemical engineering all recognized that the problem could be appropriately solved either by the Orsat method or the Board's preferred method. However, Petitioner and his expert maintained that the Board's preferred method was less precise than the Orsat method because the Board's method was based on a presumption of complete oxygen combustion or theoretical oxygen. Petitioner based his analysis on the concept that the problem's acknowledgment of the presence of carbon monoxide indicated incomplete combustion and rendered the calculation of air indeterminate. The determination of excess air is covered in five standard reference books authorized for use on the examination. All these books recognize the Orsat equation for the calculation of excess air with respect to incomplete combustion. Petitioner utilized the Orsat equation. The Orsat formula is appropriate for solving the question, but it is derived from three equations. Petitioner and his expert contended that subpart one of the question was both a trick question and that the Board was requiring an incorrect answer because the examinee obtained a correct answer to subpart ten of the question by the Orsat approach and that when subpart ten is solved by the Board's preferred method, an incorrect answer was obtained. This testimony was not persuasive in light of the apparent agreement of Petitioner that the correct numerical answer would be closer to the Board's preferred numerical answer than to his own numerical answer. (TR110112). Nor does it necessarily follow that because the Board has conceded that Petitioner's answer to subpart ten was correct, that concession automatically renders his answer to subpart one correct. As explained more reasonably by Dr. Benjamin Keith Harrison, a professor of chemical engineering at the University of Alabama, there were at least two correct ways to work the problem related to an analysis of incomplete combustion. The Orsat method uses carbon dioxide while the Board's preferred method uses a different chemical "tie" element to compare the theoretical oxygen required to the amount of oxygen actually in the system. The examinee is free to choose the method (i.e. tie element) he prefers. The Orsat formula, chosen by Petitioner, is entirely correct to do that, and the numerical answer the Petitioner got in subpart ten was within acceptable limits. However, the equations the Petitioner indicated in the other part of his answer were not those used to derive the Orsat formula. (TR8288) More succinctly, according to Dr. Harrison, the examinees were free to use either the Orsat formula or the Board's preferred formula to get subpart ten. Petitioner chose the Orsat formula and got a sufficiently correct answer for subpart ten. However, in subpart one, the other formula was asked for and Petitioner chose the wrong combination of three subsets. (TR89) Therefore, the greater weight of the credible evidence is that the Petitioner's answer is wrong on two points: first, that his response does not indicate a minimum set of equations and two, the three equations he selected were not the equations used in deriving the Orsat formula. Likewise, items one and ten of the question request different information/responses. Part ten requests a numerical response; part one requests the selection of the minimum number of equations necessary. Dr. Joseph Allen Klock, was accepted as an expert psychometrician. His statistics and the testimony of Dr. Harrison are credible and persuasive that the challenged question subpart one contained enough correct information to allow an examinee of minimal competency for licensure to selec tthe correct response and did not require knowledge which was beyond the scope of knowledge that could be expected from a candidate for licensure and that Question No. 417 as a whole was a fair test of the examinees' knowledge in the field of chemical engineering .
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Board of Professional Engineers enter a final order denying the Petitioner the one point at issue, and thus a passing grade on the April 1995 licensure examination. RECOMMENDED this 3rd day of October, 1996, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 4889675 SUNCOM 278-9675 Fax Filing (904) 9216847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 1996. COPIES FURNISHED: William Leffler, III, Esquire 2000 North Meridian Road Apartment 312 Tallahassee, Florida 32303 R. Beth Atchison, Esquire Department of Business and Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0750 Lynda L. Goodgame, Esquire General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 Angel Gonzalez Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399
The Issue The issue for consideration in this case is whether Petitioner should be awarded additional credit for his answer to question number 290, and thereby be given a passing grade on the Professional Engineer examination administered on October 25, 1996, in Orlando.
Findings Of Fact At all times pertinent to the issues herein, the Board of Professional Engineers (Board) was the state agency responsible for the examination and licensing of professional engineers in Florida. With the cooperation and assistance of the National Council of Examiners for Engineering and Surveying (NCEES), the Board conducts periodic examinations to test the qualifications of candidates for certification as professional engineers in this state. Such an examination was conducted in Orlando, Florida on October 25, 1996. Petitioner was a candidate at that examination. A minimum score for passing was 70. Petitioner received an overall score of 69. One of the questions posed to the candidates at that examination was question number 290, dealing with the design of a control system, which required the candidate to determine values for two parameters in such a fashion that the closed loop specifications stated as, "with K =20 the unit step response be a damped oscillation with a 10% overshoot and with a damped natural frequency of 15 rad/s" were met. In the answer to this question, the engineer has to arrive at parameters to give the desired step response within the stated percentages. According to Dr. Antonio Arroyo, an assistant professor of electrical and computer engineering at the University of Florida and an expert in electrical engineering, this subject matter is taught in a standard undergraduate controls course which is required in engineering schools nation-wide. The question in issue is a classic controls problem. The candidate is to reduce the diagram displayed in the examination question and give a closed loop description. Given that, the solution proceeds by taking the percentage of error and using it to back- track and arrive at the requested parameters, step by step. The examination is an open book examination. Because of the many formulae used in engineering, the candidate is permitted to use printed resources to assist in the solving of the problems. This formula involved in this problem is standard. Only the parameters cited in the test problem are different. In his answer to the question Petitioner cited to the page in his reference material where the solution is to be found, and he used the appropriate formula. In doing so, he could take the numbers presented in the problem and apply them to the standard problem solution contained in the reference book he had with him. It is a "plug and chug" situation wherein the candidate inserts the problem numbers into the given formula and makes the calculations. In order to take advantage of this opportunity, however, the candidate must decide how to use the information given. In this case, the problem involved a damped frequency of 15 hz and the candidate was required to calculate an undamped frequency. The Petitioner did not show that calculation in his solution, and it appears to Dr. Arroyo he missed the fact of the difference between the two frequencies. In Petitioner's solution, he listed what he saw as the data given, and though at no place did the problem show "Omega d", Petitioner put down "Omega d" but used "Omega n". In the expert opinion of Dr. Arroyo, an engineer should, at least, check his calculations. Examiners will give credit to a candidate if the candidate shows the appropriate knowledge of the concepts involved in the problem. In the instant case, Petitioner's answer to question 290 far exceeded the allowable 10% overshoot. His answer for "a" was 0.895, whereas the correct answer was 1.099. Whereas the allowable ten percent difference was .110, Petitioner’s overshoot was .204. His answer for "b" was 11.25, whereas the correct answer was 17.3. Whereas the allowable ten percent difference here was 1.73, Petitioner’s overshoot was 6.05. To Dr. Arroyo, this shows a concept error rather than a calculation error In substance, Petitioner utilized the correct formulae, but used incorrect data, and the use of the wrong data is sufficient to indicate his ignorance of the appropriate concepts. Petitioner’s expert, Dr. Garrett, who did not see the problem utilized in the examination and relied on information provided by Petitioner, concluded that Petitioner’s margin of error was within the 10% limitation. Here, notwithstanding the opinion to the contrary of Dr. Garrett, Petitioner's solution missed the authorized overshoot by a significant amount, far more than the allowable 10%. He should have known something was wrong when this happened and should have looked to see what he did wrong. In the opinion of Dr. Arroyo, the Petitioner did not adequately evaluate the problem consistent with acceptable engineering standards since the final product of his calculations did not meet the specifications of the problem. This is the purpose behind the professional certification process, and Petitioner should have recognized that his answer did not meet the required specifications. Petitioner received a score of six out of a possible ten for his solution to question 290. Dr. Arroyo is satisfied that the scoring plan of the NCEES for this problem is fair and he supports it. Petitioner’s expert, Dr. Garrett, a professional engineer and long-time professor of electrical engineering at the University of South Florida, disagrees. In his evaluation of the problem and the grading process used here, Dr. Garrett notes that problem 290 consisted of five parts, for each of which two points could be awarded. Petitioner correctly answered the first three parts and received a grade of six points. He missed part four, and part five was to use the results of parts three and four, with the proper equations, to determine the two answers required. Since Petitioner used the proper equations to figure his answer to part five, even though he did not get a correct answer to part four, which resulted in his numeric answer to part five being incorrect, Dr. Garrett is of the opinion that he should have received an additional two points for applying the proper formula in part five. Review of the scoring plan developed for this problem indicates that Petitioner met all the qualifications for award of six points, but he did not recognize the relationship of damped as opposed to undamped. He used incorrect data to arrive at "a" and "b" in that he did not identify the relationship between natural frequency and damped frequency. This is a basic problem of control systems which an undergraduate should be able to solve correctly. It is basic electrical engineering knowledge and not beyond that expected of an electrical engineer with a bachelor's degree in the field. Had Petitioner utilized the formula he used with the proper data, he would have been awarded credit for a correct answer even if his calculations were incorrect. Here, however, while Petitioner utilized the correct formula, he applied it to incorrect data, and it is this use of incorrect data which makes an award of a higher score inappropriate. The professional engineers’ examination is designed to test the individual's familiarity with engineering concepts and his ability to cast the problem into those concepts to solve the problem. Petitioner contends that his understanding of the concepts involved was correct and, therefore, even though he used the wrong figures, he should received credit for a correct answer or, at most, only 2 rather than 4 points should have been deducted. Though Petitioner utilized the correct formula for his solution to question 290, he applied the wrong values in the use of the formula. This indicates a lack of understanding of the concepts involved, and even though Petitioner used the proper formula, that formula came from the book he was permitted to use for the examination. He cannot be given full credit for copying the formula from the book. Had he used the correct values in his solution to the problem, he would have been given appropriate credit even if his calculations were wrong. After being notified of his unsuccessful exam results, Petitioner requested that his answer to question number 290 be resubmitted to NCEES for re-scoring, and this was done. By memorandum in response, dated July 10, 1997, the NCEES scorer concluded: The error in using undamped natural frequency for damped natural frequency in the examinee's solution is a major error. Whether the examinee did not recognize the function was in fact the undamped natural frequency, as given in the problem statement, or whether it was an oversight, it is still a major error since the outcome is significantly affected. The scorer, whose knowledge of the identity of the candidate was limited to a number only, recommended a score of "six" for Petitioner answer to this problem. There was no change from the initial scoring.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Professional Engineers enter a Final Order denying Petitioner additional credit for his answer to question number 290 on the principles and practice portion of the electrical engineering examination administered for the Board of Professional Engineers on October 25 and 26, 1996. DONE AND ENTERED this 17th day of December, 1997, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1997. COPIES FURNISHED: Bahman Behzadi Post Office Box 290931 Tampa, Florida 33687 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0700 Angel Gonzalez Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact In April 1995, Abraham S. Inlong (Petitioner) took the Electrical Engineer part of the Professional Engineering Examination (Examination). A minimum grade of 70 is required to pass the Examination. The Department of Business and Professional Regulation, Board of Professional Engineers (Respondent) notified Petitioner that he had failed the Examination, having received a grade of 69.10. The Examination is a national examination and is graded by national examiners. Respondent issues licenses to practice professional engineering in the State of Florida and administers the Examination on behalf of the State. Petitioner challenges, the answer selected by the national examiners to Problem 433, Question 6 of the Examination, which is A. Respondent selected D as the answer, which states that A, B, and C are all correct. As part of the instructions for candidates taking the Examination, the candidates were to choose the best answer. The best answer is the correct answer. Respondent's response to Problem 433, Question 6 was regraded by the national examiners. They denied Respondent any additional credit. The best and correct answer to Problem 433, Question 6 is the answer identified by Respondent as the answer by the national examiners, i. e., A. The answer selected by Petitioner is not the best and correct answer. A diagram is part of the challenged problem and question. The diagram is clear and unambiguous. The scope of knowledge required for the challenged problem and question is not beyond the knowledge reasonably expected from a candidate for licensure. The challenged problem and question contain sufficient information for a candidate for licensure to select the best and correct answer. Additional information was unnecessary, including whether the system was balanced or unbalanced. The challenged problem and question are clear and unambiguous. The challenged problem and question are not devoid of logic and reason. The challenged problem and question are valid. Statistics indicate that 60 percent of the candidates for licensure (candidates), who took the Examination, answered Problem 433 correctly and that 48 percent of the candidates answered Problem 433, Question 6 correctly.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Board of Professional Engineers, enter a final order dismissing Abraham S. Inlong's examination challenge and denying him licensure. DONE AND ENTERED this 1st day of August, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 1st day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0031 The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 4. Partially accepted in findings of fact 4 and 8. Partially accepted in finding of fact 7. Rejected as being not supported by the greater weight of the evidence, not supported by the more credible evidence, argument, or a conclusion of law. Rejected as being not supported by the greater weight of the evidence, not supported by the more credible evidence, argument, or a conclusion of law. Rejected as being not supported by the greater weight of the evidence, not supported by the more credible evidence, argument, or a conclusion of law. Rejected as being not supported by the greater weight of the evidence, or not supported by the more credible evidence. Rejected as being not supported by the greater weight of the evidence, or not supported by the more credible evidence. Respondent's Proposed Findings of Fact 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 2. 4. Partially accepted in finding of fact 2. 5. See Preliminary Statement. 6. See Preliminary Statement. 7. Partially accepted in finding of fact 4. 8. Partially accepted in finding of fact 4. 9. Partially accepted in finding of fact 7. 10. Partially accepted in finding of fact 11. 11. Partially accepted in finding of fact 10. 12. Partially accepted in finding of fact 9. 13. Partially accepted in finding of fact 10. 14. Partially accepted in finding of fact 10. Partially accepted in findings of fact 9 - 12. Partially accepted in finding of fact 12. Partially accepted in finding of fact 6. Rejected as being subordinate, argument, or a conclusion of law. Partially accepted in finding of fact 8. Partially accepted in finding of fact 14. Partially accepted in finding of fact 13. Rejected as being subordinate, or unnecessary. Rejected as being subordinate, or unnecessary. Rejected as being subordinate, or unnecessary. NOTE--Where a proposed finding has been partially accepted, the remainder has been rejected as being subordinate, irrelevant, unnecessary, not supported by the greater weight of the evidence, not supported by the more credible evidence, argument, or a conclusion of law. COPIES FURNISHED: Harold M. Braxton, Esquire One Datran Center, Suite 400 9100 South Dadeland Boulevard Miami, Florida 33156-7815 R. Beth Atchison Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angel Gonzalez, Executive Director Department of Business and Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0755 Lynda Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue to be resolved is whether Petitioner is entitled to additional credit for her response to question nos. 122 and 222 of the civil engineering examination administered on October 31, 1997.
Findings Of Fact On October 31, 1997, Petitioner took the civil professional engineering licensing examination. A score of 70 is required to pass the test. Petitioner obtained a score of 69. Petitioner challenged the scoring of question nos. 122 and 222. As part of the examination challenge process, Petitioner's examination was returned to the National Council of Examiners for Engineering and Surveying where it was re-scored. In the re-score process, the grader deducted points from Petitioner's original score. Petitioner was given the same raw score of 6 on question number 122; however, on question number 222 her raw score of 4 was reduced to a 2. Petitioner needed a raw score of 48 in order to achieve a passing score of 70; she needed at least three additional raw score points to obtain a passing raw score of 48. Petitioner is entitled to a score of 6 on problem number 122. The solution and scoring plan for that problem required the candidate to obtain a culvert size in the range of 21-36 inches. The Petitioner incorrectly answered 3.1 feet or 37.2 inches. She is not entitled to additional credit for problem number 122 because she answered the question with the wrong size culvert. Problem number 122 required the candidate to use a predevelopment peak flow of 40 cubic feet per second (cfs). Petitioner used 58.33 cfs. She chose the maximum flow rather than the predevelopment peak flow. In solving problem number 122, Petitioner chose a design headwater depth of 4.8 feet. The correct solution required a design headwater depth of 5.7 feet. Petitioner made another mistake in problem number 122; she failed to check the water depth in the downstream swale. Petitioner concedes she was given sufficient information to solve problem number 122. She understood what the question was asking of her. She admits that she did not compute the critical depth of the water and that she did not complete the solution. Question number 222 had three parts. The candidate was required to determine the footing size, to select the reinforcing steel, and to provide a sketch for a concrete column located along the edge of a building. Petitioner understood the question and was provided enough information to solve the problem. Petitioner correctly checked the footing size as required by the first part; however, she did not select the reinforcing steel or show the required sketch. Therefore, Petitioner did not complete enough of the problem to qualify for a score of 4 points. She is entitled to a score of 2 points. The examination questions at issue here were properly designed to test the candidate's competency in solving typical problems in real life. The grader (re-scorer) utilized the scoring plan correctly. Petitioner has been in the United States for approximately eleven years. She lived in Romania before she came to the United States. In Romania, Petitioner used only the metric system in her professional work. While she has used the English system since moving to the United States, Petitioner is more familiar with the metric system. The Principles and Practice examination is an open-book examination. Petitioner took a book entitled the Fundamentals of Engineering Reference Handbook to the examination. When the proctor examined her books, she told the Petitioner she was not permitted to keep the handbook. The proctor took the handbook from the Petitioner. Petitioner protested the confiscation of her reference book because she had used the same book in two previous tests. About ten minutes later, the proctor's supervisor returned the book to Petitioner. Petitioner's book was returned at least ten minutes before the test began. She was permitted to use the book during the test. There is no persuasive evidence that the proctor's mistake in temporarily removing Petitioner's reference book caused her to be so upset that she failed the test. Candidates were not permitted to study their books prior to the beginning of the examination. Petitioner may have been nervous when the test began. However, Petitioner received a perfect score of ten points on the first problem she worked, problem number 121.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that the Board of Professional Engineers enter a Final Order confirming Petitioner's score on the examination and dismissing the Petitioner's challenge. DONE AND ENTERED this 13th day of January, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 13th day of January, 1999. COPIES FURNISHED: Natalie A. Lowe, Esquire Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 William Bruce Muench, Esquire 438 East Monroe Street Jacksonville, Florida 32202 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dennis Bartin, President Florida Engineers Management Corporation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent, Department of Transportation’s (“DOT”), notice of intent to award a contract to Intervenor, Blue Ray’z Heating and Air Conditioning, LLC (“Blue”), for maintenance, repair, installation, and replacement of heating, ventilation, and air conditioning (“HVAC”) equipment and components located at various facilities along Florida’s Turnpike System, is contrary to DOT’s governing statutes, rules, or the bid specifications, and contrary to competition, clearly erroneous, or arbitrary and capricious.
Findings Of Fact DOT is an agency of the state of Florida tasked with procuring the construction of all roads designated as part of the State Highway System, the State Park Road System, or any roads placed under DOT’s supervision by law. On March 10, 2017, DOT published its bid solicitation for ITB-DOT-16/17-8017-AC (the “ITB”), seeking bids from contractors for maintenance, repair, installation, and replacement of HVAC equipment and components at various facilities along Florida’s Turnpike (SR 91) milepost 172.0 to milepost 312.0; Southern Connector (SR 417) milepost 0.0 to milepost 6.5; Beachline Expressway (SR 528) milepost 0.0 to milepost 8.4; Seminole Expressway (SR 417) milepost 37.7 to milepost 55.0; and Daniel Webster Western Beltway (SR 429) milepost 0.9 to milepost 11.0. The scope of work of the ITB requires all labor, materials, and incidentals necessary to provide maintenance and repair of 232 HVAC units located at 65 facilities along Florida’s Turnpike System. The contract is for one year, with three one- year renewal periods. The 65 facilities span the distance from Wildwood in the north at milepost 304 to past Yeehaw Junction in the south to milepost 172, and from a westernmost point on State Road 429 at milepost 11 (Orlando area) to the easternmost section of State Road 417. Under the ITB, the vendor is required to conduct bimonthly preventative maintenance services on each HVAC unit; a total of five visits per site, per year. The vendor is also required during the first month of the contract and any subsequent annual renewal periods to conduct one annual preventative maintenance service. The annual maintenance is typically more extensive than the 60-day maintenance. However, the bi-monthly and annual maintenance services require, on average, 30 minutes for each of the 232 HVAC units. The vendor is also required to provide unscheduled, emergency services to diagnose problems and make necessary repairs of units that are not operating properly. An unscheduled repair could take several hours to complete, and there have been occasions where more than one unit needed a repair at the same time. The vendor must be available 24 hours a day, seven days a week, 52 weeks a year, to provide unscheduled, emergency services. Most air conditioning work is treated as an emergency, which requires the vendor to respond within three hours. The ITB includes specifications, schedules, a list of facilities, and other materials. Section 9.1 of the ITB requires bidders to meet certain minimum qualifications, including demonstrating the experience necessary to satisfactorily perform the services within the scope of work. Of particular relevance to the instant case is the following language on page 12 of the ITB: Certification of Experience The organized business enterprise (e.g. corporation, LLC or sole proprietorship) shall have been licensed and actively involved in the type of business requested for a minimum of three (3) years. Prior experience shall specifically be related to HVAC maintenance, repair, installation and replacement services of commercial facilities similar in size, technical scope, and volume of work to that specified in the Scope of Work for this Contract. Submit documentation of the work experience with the bid package. Pursuant to section 9.2, “[f]ailure by the bidder to provide the above item(s) will constitute a non-responsive determination. Bids found to be non-responsive will not be considered.” The Certification of Experience requirement is also referenced on page 2 of the ITB, followed by this statement: “The Department will review carefully to determine if the Vendor is responsive, responsible and qualified in the area of work contemplated by this Contract.” A two-page “Certification of Experience Documentation” form is located on pages 23 and 24 of the ITB. The form reiterates, in pertinent part: Prior experience shall specifically be related to the technical scope and volume of work to that specified in the scope of work for this Contract. Submit documentation of the work experience with the bid package. The Department will review carefully to determine if the Vendor(s) is responsive, responsible and qualified in the area of work contemplated by this Contract. Describe your work experience in detail for the minimum period required, beginning with your current or most recent project. Use a separate block to describe each project. (Print out additional copies of the form or attach additional sheets as necessary.) The form includes many lines, spaces, and separate blocks for bidders to provide the client names, addresses, and telephone numbers; dates of service; dollar value of each project; client project manager for each project; and a description of each project. The form includes enough lines and spaces for bidders to provide the required information for up to seven clients. The bidders are directed to attach additional sheets as necessary. The deadline for submission of bids was Tuesday, April 4, 2017, at 2:30 p.m. On April 4, 2017, DOT received and opened bids from four vendors in response to the ITB, which revealed the following bid tabulation prices: (1) All Seasons ($158,446.00); (2) Blue ($128,630.00); (3) Kenyon & Partners, LLC ($279,183.00); and (4) Florida Drawbridges, Inc. ($331,183.00). On April 4, 2017, DOT posted a notice of intent to award the contract for the work described in the ITB to Blue. Notwithstanding the requirement for each bidder to demonstrate prior experience “specifically . . . related to HVAC maintenance, repair, installation and replacement services of commercial facilities similar in size, technical scope, and volume of work to that specified in the Scope of Work for this Contract,” Blue failed to demonstrate such experience in the Certification of Experience Documentation form. The first client listed on Blue’s Certification of Experience Documentation form is the Florida Department of Juvenile Justice (“DJJ”). With regard to this client, Blue indicated service dates of June 2015 to present and a project dollar value of $5,000.00 per year. As to the project description, Blue stated: “Provide HVAC Maintenance, Repair & Service @ Orange Regional Juvenile Detention Center.” At hearing, Mr. Davis, the sole owner and operator of Blue, conceded the work involved a total of only 12 HVAC units, in two DJJ buildings, and at the same location. The second client listed is Florida Environmental Compliance Corp. (“FECC”). With regard to this client, Blue indicated service dates of 2012 to present and no dollar value for the project was provided. As to the project description, Blue stated: “HVAC Maintenance, Repair & Service. Installation.” At hearing, Mr. Davis conceded the work for FECC involved a total of only eight HVAC units at two locations (Polk County–two units, and Orlando-six units). The third client listed is DOT. With regard to this client, Blue indicated service dates of July through August 2015, and the dollar value of the project was $21,300.00. As to the project description, Blue stated: “Installation of Recorder Room Ductless split system.” At hearing, Mr. Davis conceded the work for DOT involved the installation of only three HVAC units in three locations at a cost of $7,100.00 each. The fourth client listed is CVS. With regard to this client, Blue indicated service dates of July through August 2014, and the dollar value of the project was $17,000.00. As to the project description, Blue stated: “Installation of Mini split system in CVS store clinics.” At hearing, Mr. Davis conceded the work for CVS involved the installation of only two HVAC units at one store location.2/ DOT did not review Blue’s Certification of Experience Documentation form to determine whether Blue demonstrated the necessary qualifications and experience required by the ITB. At hearing, none of the witnesses presented by DOT could testify as to Blue’s demonstration of prior experience, specifically related to HVAC maintenance, repair, installation, and replacement services of commercial facilities similar in size, technical scope, and volume of work to that specified in the scope of work. Leonard Robinson, a contract manager for Jacobs Engineering, the consultant for the project, testified he was involved only “to a very small extent” in the review of Blue’s bid. Mr. Robinson testified that “the only thing I had to do was to award the bid per the lowest bidder as written in the contract and state the reason why I’m doing so and also sign the Conflict of Interest form. That is it.” Mr. Robinson did not review Blue’s qualifications or past experience, and he could not say that Blue could perform the work described in the ITB. Alan Chua is the capital improvement procurement administrator for Jacobs Engineering. Mr. Chua evaluated Blue’s bid to determine whether it corresponded to the engineer’s estimate. He testified he reviewed the Certification of Experience Documentation form, but only as to the dates and to the limited extent necessary to determine whether the projects listed by Blue satisfied the three years of experience required by the contract. Mr. Chua conceded he did not review the project descriptions for the four referenced clients identified on the form, and he could not say whether any of the four projects identified on the form were similar in volume or technical scope to that specified in the ITB. Trisa Thomas is a contracts development manager for Jacobs Engineering. Ms. Thomas testified she reviewed the Certification Experience Documentation form. Ms. Thomas testified she reviewed the dates to determine whether the projects listed by Blue satisfied the three years or more of experience required by the contract. She further testified she reviewed the dates, project manager, and project descriptions. As to the project descriptions, Ms. Thomas testified she reviewed the type of work Blue did for the company to see if it was related to the work specified in the ITB. However, she did not consider the volume of Blue’s work. Significantly, Ms. Thomas testified: Q: Okay. All right. Do you know why the dollar value of the project is on the Certification of Experience Documentation? A: Just to get an idea what they--how much they probably performed. Q: So would that help you get an idea of the volume of work that they performed for that client? A: I’m not even really sure if that played a factor. Q: And when you say, I’m not sure if that played a factor, what--what are you referring to? A: Well I guess what I’m saying is, I’m-- that’s really not where my concentration is. I’m looking at the years, the project description, what they--the type of work they performed for the--for that agency, and if the references are credible or, you know, satisfactory. Q: Okay. And when you say they’re satisfactory, what do you look at to determine if they’re satisfactory? A: Based on the service that they provided to them, the vendor will let us know how pleased they were with the work that they provided to their agency. Q: All right. Looking at this Joint Exhibit 5, pages 5 and 6, which places did Blue Ray’z perform HVAC maintenance, repair, installation and repair services that were of the same technical scope as the Invitation to Bid? A: I see on the Certification of Experience where they provided HVAC repair and service installation. Also I see where they provided installation of a recorder room. But the volume, there’s--I don’t--I wouldn’t be able to determine that. Q: And let me ask my question again. So which places did Blue Ray’z perform HVAC maintenance, repair, installation and replacement services that were of the similar technical scope? A: I don’t know. Q: What maintenance, repair and installation or replacement services did Blue Ray’z provide to another vendor that was similar to the volume of work specified in the Invitation to Bid? A: The volume work? I don’t know. Q: Do you know if the bid by Blue Ray’z was reviewed by anybody to determine if the experience was similar in size, technical scope and volume of work specified in the Scope of Work? A: I don’t know. Tr., Vol. I, pp. 121-123. Santiago Alvarez is the facilities and telecommunications administrator for the Turnpike Enterprise, which is part of DOT. Mr. Alvarez testified he did not review the Certification of Experience Documentation form in any detail. He just looked to confirm the documents were included in the bid package. Sheree Merting is the contract services administrator for DOT’s Turnpike Enterprise. Ms. Merting testified she was not involved in the evaluation of Blue’s bid. Amanda Cruz is a contract analyst for DOT. She did not review Blue’s bid to determine whether Blue was qualified by having the experience required by the ITB. DOT established specific requirements for the ITB to determine responsiveness and then failed to determine if Blue had prior work experience specifically related to HVAC maintenance, repair, installation, and replacement services of commercial facilities similar in size, technical scope, and volume of work to that specified in the scope of work. DOT awarded the bid to Blue because it was the lowest bidder, without considering whether Blue demonstrated prior experience specifically related to HVAC maintenance, repair, installation, and replacement services of commercial facilities similar in size, technical scope, and volume of work to that specified in the scope of work. DOT awarded the bid to Blue because it was the lowest bidder, even though Blue failed to demonstrate in the Certification of Experience Documentation form that it had prior experience specifically related to HVAC maintenance, repair, installation, and replacement services of commercial facilities similar in size, technical scope, and volume of work to that specified in the scope of work. In sum, Blue is not a responsive and responsible vendor, and DOT’s proposed action is contrary to the bid specifications, clearly erroneous, contrary to competition, arbitrary and capricious.3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Transportation, enter a final order rescinding the proposed award to Intervenor, Blue Ray’z Heating and Air Conditioning, LLC. DONE AND ENTERED this 28th day of August, 2017, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 28th day of August, 2017.
The Issue The issues in this case are whether certain questions within the June 2002 construction building contractor examination are invalid, and whether Petitioner should receive credit for certain answers scored as incorrect.
Findings Of Fact In June 2002, Petitioner sat for the construction building contractor examination. Shortly following the exam, Petitioner was advised that he incorrectly answered 17 of the 50 exam questions and did not attain the minimum passing score of 70 percent, but received a failing scaled score of 66 percent. Petitioner timely challenged the validity and scoring of eight questions, including questions 8, 14, 17, 33, 34, 38, 43, and 44. In order for Petitioner to acquire a passing score, Petitioner must prove that certain challenged questions are invalid or demonstrate that he is entitled to receive credit for his answers. Specifically, Petitioner must demonstrate that either three questions should be stricken from the exam providing Petitioner with 70.2 percent, two questions should be stricken and one answer scored as correct providing Petitioner with 70.8 percent or two answers should scored as correct providing Petitioner with 70 percent. QUESTION 8 Exam Question 8 asks, "According to AIA-A201, who determines the interest rate that the contractor can charge on due and unpaid payments?" Petitioner's expert, Mr. Uman, argues that the parties to the contract are not defined within the question and it is therefore misleading. However, the credited answer D, "all the parties must agree on the rate" is within the provided reference material and is clearly the best answer. It is not misleading and Petitioner's argument lacks merit. In addition, 89.47 percent of the test-takers correctly answered Question 8. QUESTION 14 Exam Question 14 is wordy and involves computations. It requires the test-taker to calculate the number of "labor" hours required per 100 pieces to build a wall, given certain pricing and wall construction information. Question 14 is ambiguous and confusing on its face. While the question asks for labor hours, the facts provide a fixed combined hourly cost for a mason and laborer's hour. There is no distinction made between "labor" hours and a "laborer's" hours. Mr. Collier admitted that there is some apparent confusion between "labor" costs and the "laborer's" costs. Mr. Palm further agreed and indicated that he fully understood Petitioner's rationale to divide the labor costs in half and choose answer A. Furthermore, it is clear that Petitioner's perception of the question was not unique. In fact, only 46.62 percent of the test-takers correctly answered Question 14. QUESTION 17 Exam Question 17 asks, "During the bid process, which document has priority in the event of conflicting information?" Clearly, the correct answer is B, "addenda." Petitioner's argument regarding "competitively bid projects" is without merit. Mr. Palm succinctly explained that Petitioner's selection was obviously incorrect because "plans don't change during the bid process unless there is an addenda issued." Moreover, 75.56 percent of the test-takers correctly answered Question 17. QUESTION 33 Exam Question 33 identifies a situation that where drawings differ from written specifications and where there is no legal precedent that one is more binding than the other. The question specifically calls for the best procedure according to the listed and available reference. While Mr. Uman argues that the answer does not appear within the reference material in a clear manner, the exact text of the question and answer are in fact within the material. Petitioner's argument lacks credibility. QUESTION 34 Exam Question 34 asks the test-taker "what is the EARLIEST workday for completing the masonry work?" given the number of crew, the number of hours required, and the ratio constant of the crew. Although 80.45 percent of the test-takers correctly answered Question 34, Mr. Uman argues that the question could have been answered without reference to the Builder's Guide to Accounting material and therefore, was misleading. Petitioner's argument is devoid of common sense. QUESTION 38 Exam Question 38 asks the test-taker to identify the activity that "a specialty structural contractor is qualified" to perform. Petitioner's expert, Mr. Uman, again argues that the question is misleading since the credited correct answer "perform non-structural work" is not written verbatim in the provided reference material. To the contrary however, all of the alternative choices are clearly listed in the reference material as activities specifically prohibited by specialty structure contractors. Furthermore, page 2B17 to 61G415.015 of the Contractor's Manual specifically states that: The specialty structure contractor whose services are limited shall not perform any work that alters the structural integrity of the building including but not limited to roof trusses. Respondent's experts, Mr. Collier and Mr. Palm, agree that Question 38 is clear. Moreover, 53.38 percent of test- takers correctly answered the question. While the question appears to require enhanced reasoning skills and is generally more difficult, it is not misleading. Petitioner's assertions are without merit. QUESTION 43 Exam Question 43 asks, "Which accounting method should be used by a contractor if the contractor is unable to reasonably estimate the amount of progress to date on a job or the total costs remaining to fulfill the contract?" Mr. Uman argues that the question is ambiguous and the reference material is "not terribly clear." He further alleges that when a contractor cannot estimate progress, the contractor cannot establish a "completed contract method," the credited correct answer. Respondent's experts disagree. While it is true that Mr. Palm agreed that all of the choices are accounting methods which is inconsistent with Mr. Collier's testimony, the reference material is clear. In fact, 58.65 percent of the test-takers correctly answered Question 43. Petitioner presented insufficient evidence that he should receive credit for his answer or that Question 43 should be invalidated. QUESTION 44 Exam Question 44 provides detailed information regarding a standard form contract and asks, "Based ONLY on the information given above, what is the amount of the current payment due?" In addition, however, as Mr. Uman points out, the standard form referred to in the problem was mistakenly misidentified as Form 201 instead of Form 702. While it is clear that the referenced form was mislabeled, the precise form number was incidental, unrelated to the question, and unnecessary to compute the answer. In fact, Mr. Palm explains that the problem was "just a mathematical exercise." According to Mr. Collier, the question was not misleading, and the incorrect reference was irrelevant. "It's simple math, industry knowledge." Furthermore, Petitioner's answer is clearly incorrect because "he failed to deduct the retainage." Finally, 54.89 percent of the test-takers correctly answered Question 44.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered invalidating only Question 14, re-computing Petitioner's examination score, and dismissing his challenge. DONE AND ENTERED this 1st day of October, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 2003. COPIES FURNISHED: Nickolas Ekonomides, Esquire 791 Bayway Boulevard Clearwater, Florida 33767 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Nancy P. Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Petitioner's applications for licensure should be granted or denied.
Findings Of Fact Petitioner filed applications with the Department of Business and Professional Regulation (DBPR) for certifications as a plumbing inspector and electrical inspector. The Board of Building Code Administrators and Inspectors (Board), which is part of DBPR, is the state agency charged with certification of plumbing and electrical inspectors, pursuant to Chapter 468, Florida Statutes. Petitioner previously received provisional certification to perform plumbing and electrical inspections as a result of the Board’s failure to take timely action on Petitioner’s applications for provisional licenses. He is currently employed with the City of Deland as a commercial and residential inspector and has been employed there since September 17, 2007. Accompanying his applications was a statement of “experience history”, provided on a Board form. The experience history listed four places of employment covering four periods of time: 1976 to 1986: Job Foreman for Ron Abel Contracting; 2001 to 2005: Standard Inspector for the City of Winter Springs; 2005 to 2007: Standard Inspector for GFA International; and 2007 to present: Standard Inspector for the City of Deland. Accompanying his applications were three affidavits relating to the 1976-1986 employment with Ron Abel Contracting; two affidavits relating to his 2001-2005 employment with the City of Winter Springs; one affidavit relating to his 2005-2007 employment with GFA International; and one affidavit regarding Petitioner’s employment with the City of Deland from 2007 to present. The first affidavit relating to the 1976 to 1986 period of time was from Daniel Kittinger, a licensed general contractor, who attests that when working in his father’s construction business, Petitioner “assisted in the home building process, acted as foreman to oversee [sic] the subcontracting was done in a timely manner and that specifications met code requirements for residential buildings.” The second affidavit for the 1976 to 1986 period was from Carleen Abel, Vice President of Ronald E. Abel Contracting, and states the following: Mr. Jay Abel is the son of the owner and worked as a field foreman from 1976-1986. During his tenure with Abel Contracting, Jay provided supervision of the field operation on overseeing trade contractors. His principle responsibilities included hands on supervision of framing, electrical, plumbing and HVAC sub-contractors for both residential and commercial work. He primarily was to assure that the jobs were properly constructed, completed on time and confirmed that the appropriate codes were satisfied. The third affidavit relating to 1976-1986 did not include the license number of the affiant. Therefore, it was not considered, and is not considered herein, as it does not comply with the statutory requirement that a licensed architect, engineer, contractor, or building code examiner affirm an applicant’s experience by affidavit. Regarding Petitioner’s employment with the City of Winter Springs, an affidavit was submitted by a person whose first name is David (last name begins with an “A” but is not legible) which states that Petitioner was employed as a residential inspector under the direction of Dennis Franklin and under supervision of a senior inspector. This affidavit referenced an attached affidavit of Dennis Franklin which states as follows: I have personal knowledge that Jay Abel worked as a residential inspector in Winter Springs during the time of his licensure as per Chapter 468 F.S. One affidavit was submitted relating to Petitioner’s work experience from 2005 to 2007. The affidavit of Jeffrey D. DeBoer states as follows: During Jay’s tenure at CFA International he performed inspections of 1 + 2 family dwellings and was in training to perform plan review of both mechanical, electrical and plumbing disciplines. This training was done under the supervision of other certified plans examiners for each discipline. The affidavit of Joseph R. Crum was submitted regarding Petitioner’s current employment with the City of Deland. It states in pertinent part as follows: Jay Abel is employed with the City of Deland as an inspector. He is required to perform inspections on commercial buildings and structures for Building, Electrical, Mechanical, Plumbing and gas installations. He is also required to perform inspections on Residential buildings and structures for all of the trades including, Building, Electrical, Mechanical, Plumbing and gas installations. Jay currently holds a standard one and two family dwelling inspector license #BN4928. He also holds provisional licenses as follows: Building #PBI 1573, Commercial Electrical: #PCE 651, Mechanical: #PMI 549 and Plumbing: #PPI 582. Having these licenses means he has met the qualifications for each and should be issued the appropriate license as he passes the individual exams.[1/] In addition to the affidavits submitted by Petitioner, Petitioner’s current supervisor testified at hearing. Matthew J. Adair is the chief building official with the City of Deland. He supervises all of the building division which includes code enforcement and building inspections personnel. He is familiar with the work performed by Petitioner in his current employment with the City of Deland. At hearing, Mr. Adair described Petitioner’s work: Jay is our commercial and residential inspector at this time. He does primarily commercial work for us. I’ve personally overseen the inspections that he conducts on a daily basis. . . [t]o include installation of electrical and plumbing systems in new commercial buildings, main distribution panels, underground electric, overhead, receptacles, feeders. And on the plumbing side the same thing, water, sewer lines, undergrounds, sewer connections even back-load preventers. . . . He’s very competent. He knows the codes, but on top of just knowing the codes he knows how systems are supposed to be installed in the field. He is a competent inspector.. . . He is one of my most valued employees.[2/] Petitioner also submitted an “Educational History” which represents that he holds an associate of arts degree in business. Further, the “Examination History” portion of the form represents that he passed the Florida Principles and Practice Examination. The Board has created an application review committee (committee), consisting of three members of the Board, to review all applications and make a recommendation to the Board as to whether each application should be approved or denied. Dennis Franklin is a member of the Board and the review committee. According to Mr. Franklin, the committee reviews the applications, and makes a determination as to whether an application should be approved or denied. The determination is made by majority vote of the committee. The decision of the committee is then presented to the Board which ratifies the committee’s decision at a Board meeting. The Board generally does not otherwise independently review the applications, but simply ratifies the decision of the committee. The committee met at some point prior to the Board’s April 10, 2009, meeting. The committee reviewed Petitioner’s applications and determined that his applications should be denied. The decision of the committee was ratified by the full Board on April 10, 2009. Robert McCormick is Chairman of the Board and is a member of the committee. According to Mr. McCormick, the Board interprets the statutory requirement of five years’ combined experience to mean that an applicant must demonstrate an equivalent of five years’ full-time experience. Mr. McCormick applied what he described as a “rule-of-thumb,” in which he divided five years into an average of full-time work hours of 2,000 work hours per year and 10,000 work hours for a five-year period of employment. Mr. McCormick determined that Petitioner’s application did not establish that he had worked five years full-time in either the electrical or plumbing trade and, therefore, determined that his applications should be denied. Gary Hiatt is the chief building official of Flagler County and is responsible for the day-to-day management of plumbing and electrical inspectors in that county. He reviewed Petitioner’s applications and is of the opinion that Petitioner “has demonstrated through his background in contracting and licensure as well as his educational background to meet the requirements to be able to sit for that examination.”
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered granting Petitioner's applications for standard certification as a plumbing and electrical inspector. DONE AND ENTERED this 3rd day of December, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2009.
