The Issue Whether Petitioner's application for licensure by examination as an engineering intern should be granted.
Findings Of Fact Prior to his admission to the Mechanical Engineering Program at the University of South Florida on August 30, 1982, Petitioner Evans attended a three-year full-time Mechanical Engineering Diploma Program at the College of Arts, Science and Technology in Kingston, Jamaica. Upon completion of the program, Petitioner was awarded the College Mechanical Engineering Diploma. The diploma from the College of Arts, Science and Technology was conferred in an educational system based upon the English System of Education. The diploma was not a university degree, such as a Bachelor of Science. It is more akin to a certificate from a specialized training program. Such diplomas are often called Associate Degrees when they are issued by junior colleges in the United States. 750 credit hours were transferred from the College of Arts, Science and Technology and were applied to the lower level requirements for the Mechanical Engineering Program when Petitioner was enrolled at the University of South Florida. As with all transfers from other schools of higher education, Petitioner was not given credit for those courses in the grade point average (GPA) he was required to achieve at the university. Throughout his enrollment at the university prior to the actual award of his Bachelor of Science (BS) degree, Petitioner Evans was in the Mechanical Engineering Program. During the thirteen terms the Petitioner attended the university before he was awarded his BS degree, he repeated the following engineering department courses: EGN 3313 STATICS (3 times); EML 4503 MACH AN & DES 2 (2 times); ENG 4314 AUTO CONTROLS I (3 times) and EML 4106 C THERM SYS & ECO (4 times). Petitioner ultimately achieved a "A" in EGN 3313 STATICS; a "C" in EML 4503 MACH AN & DES 2, as well as ENG 4314 AUTO CONTROLS I. His final grade in the coursework for EML 4106 C THERM SYS & ECO was a "B". At all times while Petitioner was in attendance at the university, the Mechanical Engineering Department required students to have a GPA of 2.2 or better in a specific schedule of coursework before a Bachelor of Science in Mechanical Engineering (BSME) degree would be awarded by the faculty of the Department. The curriculum for the Mechanical Engineering Program at the University of South Florida was accredited by the Accreditation Board for Engineering and Technology (ABET) based upon the program requirement that a degree in mechanical engineering would be conferred only on students with a 2.2 or better GPA. The fall term of August 24, 1987 - December 12, 1987, was designated as Petitioner's final term of his senior year as an undergraduate seeking a BSME degree. Although the means used by the Mechanical Engineering faculty to calculate a GPA during this particular time period was unavailable, there is no dispute that the faculty applied its policy and determined that a BSME could not be awarded to Petitioner because he did not meet the academic standard of 2.2 or better GPA in the scheduled courses. Due to the averaging required to arrive at a GPA, Petitioner's repetition of so many courses lowered his overall GPA even though he successfully completed each course on his final attempt. When Petitioner was personally informed of the faculty's decision by his assigned faculty adviser, he questioned whether he could retake some of the courses to bring his GPA status up to the level demanded by the faculty. This idea was discouraged by his adviser because Petitioner would have to repeat a large number of courses over a lengthy period of time. The averaging techniques used to compute a GPA makes such an endeavor very time consuming with small results for the effort spent. Based upon the advice he received, Petitioner acquiesced in the faculty's decision to award him a B.S. in Engineering-Option in General and accepted the degree. At the close of his undergraduate academic pursuits, Petitioner had an overall GPA of 2.082 and a GPA in departmental course work of 1.79. This departmental GPA was calculated by eliminating 3 "Fs" from his transcript, per the university's forgiveness policy. All other course repeats lowered his overall GPA and his departmental GPA. In spite of the overall GPA and departmental GPA determination, Petitioner did take and successfully passed every course within the curriculum of the Mechanical Engineering Program at the University of South Florida. The B.S. degree awarded to Petitioner is an alternate degree within the university. It is designed for students who have either completed a specialized program but were unable to meet a faculty's higher GPA standard or for those students who never designated a specialty within the engineering school, but met general university degree requirements. This program has never been accredited by ABET. ABET relied upon the faculty's representation that students who received BSME degrees would obtain a 2.2 or better GPA in the program before the degree was awarded when accreditation was granted by the board. It is unknown as to whether the program would have been approved if a lower success standard had been set for the students. On July 9, 1990, Petitioner's application for the Fundamentals Examination was received by the Department. The application was rejected on September 24, 1990, because the Department determined Petitioner did not meet the statutory and rule provisions governing admissions to the examination. From August 27,, 1984 - December 11, 1987, Petitioner was in the final year of an approved engineering curriculum in a university approved by the Board. He successfully completed the courses in the curriculum, but his GPA in the program was lowered by his numerous repetitions of the same courses before successful completion occurred.
Recommendation Based upon the foregoing, it is RECOMMENDED: Petitioner's application to take the examination administered by the Department for the Board be denied. DONE and ENTERED this 20th day of August, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 20th day of August, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: Pages 1-2: Accepted. See Preliminary Statement Issue I-Page 3: Paragraph one. Accepted. See HO #11. Paragraph two. Accepted. See HO #7. Paragraph three. Accepted. See HO #3. Paragraph four. Accepted. See HO #8. Paragraph five. Accepted. See HO #4, #10, #11 and #12. Paragraph six. Accepted. Paragraph seven. Accepted. See HO #15. Paragraph eight. Accepted. See HO #12. Paragraph nine. Accepted. Paragraph ten. Accepted. Paragraph ten. Rejected. Cumulative. Issue II-Page 7: Paragraph one. Accepted. See HO #13. Issue III-Page 8:Paragraph one. Accepted. Paragraph two. Rejected. Cumulative. Paragraph three. Accepted. Paragraph four. Rejected. Mixed Question of Law and Fact. Witness Incompetent to determine. Paragraph five. Rejected. Cumulative. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #14. Accepted. See HO #14. Accepted. See HO #1. Accepted. See HO #3 and #4. Accepted. See HO #13. Accepted. See HO #12 and #13. Accepted. See HO #8 and #13. Rejected. Contrary to fact. See HO #5. Accepted. See HO #11. Rejected. Irrelevant. Accepted. Accepted. See HO #10. Rejected. Insufficient facts presented. See HO #8. Accepted. See HO #6. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Improper legal conclusion. Rejected. Contrary to fact. See HO #12. COPIES FURNISHED: Weldon Earl Brennan, Esquire SHEAR NEWMAN HAHN & ROSENKRANZ, P.A. 201 E. Kennedy Boulevard, Suite 1000 Post Office Box 2378 Tampa, Florida 33601 Edwin A. Bayo, Esquire Assistant Attorney General Department of Legal Affairs Suite LL04, The Capitol Tallahassee, Florida 32399-1050 Carrie Flynn, Executive Director Jack McRay, General Counsel Florida Board of Professional Department of Professional Engineers Regulation Northwood Centre, Suite 60 Northwood Centre, Suite 60 1940 North Monroe Street 1940 North Monroe Street Tallahassee, Florida 32399-0755 Tallahassee, FL 32399-0792
The Issue Whether Petitioner is entitled to additional credit for his responses to the "Principles and Practice" portion of the electrical engineer examination administered by Respondent in October 1996.
Findings Of Fact Petitioner took the electrical engineer licensing examination administered by Respondent in October 1996. Respondent is the agency of the State of Florida with the duty to regulate the practice of electrical engineering in Florida. Pursuant to Section 471.015, Florida Statutes, an applicant for licensure as an electrical engineer is required to successfully pass both parts of a licensure examination.1 The electrical engineer licensure examination at issue in this proceeding was developed and graded by the National Council of Examiners for Engineering and Surveying (NCEES). Following the initial grading of the "Principles and Practice" section of the exam, Petitioner was awarded a score of 68. A total score of 70 was required to pass that portion of the examination. Petitioner thereafter timely challenged the grading of two questions on the "Principles and Practice" portion of the exam. His challenge was limited to Questions 130 and 132. Petitioner did not specifically challenge Question 131. In response to that challenge, Respondent sent Petitioner’s examination package back to NCEES to have the "Principles and Practice" portion of the examination re-graded. NCEES re-graded all of Petitioner's answers to the "Principles and Practice" portion of the examination, including his responses to Questions 130, 131, and 132. NCEES initially awarded Petitioner a score of 2 points for his answer to Question 130. When the answer was re-graded, Petitioner was not awarded any additional credit for his answer to Question 130. The record in this proceeding established that Petitioner's answer to Question 130 was properly re-graded. Petitioner is not entitled to any additional credit for his response to Question 130. NCEES initially awarded Petitioner a score of 2 points for his answer to Question 132. When the answer was re-graded, Petitioner was awarded a score of 4 points for his answer to Question 132. The record in this proceeding established that Petitioner's answer to Question 132 was properly re-graded. Petitioner is entitled to a score of 4 points for his answer to Question 132. NCEES initially awarded Petitioner a score of 8 points for his answer to Question 131. When the answer was re-graded, Petitioner was awarded a score of 6 points for his answer to Question 131. The record in this proceeding established that Petitioner's answer to Question 131 was properly re-graded. Petitioner is entitled to a score of 6 points for his answer to Question 131. Petitioner is not entitled to a score of 8 for his answer to Question 131. Each of the three questions at issue in this proceeding is a problem that requires multiple steps and computations to solve. If a candidate correctly answers all parts of the question a score of 10 points is awarded. Partial credit can be awarded based on how many of the parts of the question are correctly answered. There is no allegation that the three questions involved in this proceeding are ambiguous or otherwise inappropriate for a licensure examination. The record is not clear when Respondent notified Petitioner of its position following the re-grading of the questions at issue. It is clear that Petitioner was aware of Respondent's position prior to the start of the formal hearing. During the formal hearing and in his post-hearing submittal, Petitioner challenged Respondent's right to re-grade Question 131 since he had not specifically challenged that question. Petitioner has not asserted that he was provided insufficient notice of Respondent's position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order that awards Petitioner a score of 68 on the "Principles and Practice" portion of the October 1996 licensure examination. DONE AND ENTERED this 11th day of December, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1997.
The Issue The issues presented are: (1) whether or not Respondent wrongfully eliminated materials from the Candidate/Petitioner during the April 19, 1990 engineering examination, and if so, (2) whether the Candidate/Petitioner received a failing grade because the materials were wrongfully eliminated.
Findings Of Fact The Petitioner (#100021) received a score of 69.0 on the Professional Engineer Fundamentals Examination given April 19, 1990. A minimum passing score was 70.0 on the examination which is written by National Council of Engineering Examiners and graded by Education Testing Service. (Transcript Pages 36 and 39) Prior to the April 1990 examination, the Board sent each candidate a letter, dated December 18, 1989 (Exhibit P-1) (Transcript Page 9 and 12), which said, "No review publications directed principally toward sample questions and their solutions of engineering problems are permitted in the examination room." (Transcript Page 31). The candidates were also provided with a "Candidate Information Booklet" dated January 1990 (Exhibit R-1, Transcript Page 77). The booklet states on page 14, "No books with contents directed toward sample questions or solutions of engineering problems are permitted in the examination room." (Transcript Pages 77 and 96). Petitioner, who also took the October 1989 examination had received notice at that examination that the Board of Engineers intended to change the procedure allowing reference materials in the examination. (Transcript Page 89 and Respondent's Exhibit 2.) The Board of Professional Engineers advised the examination supervisor and proctors that no engineering "review" materials would be allowed in the examination although engineering "reference" materials could be brought into and used for the examination. However the books which were excluded included books without "review" in the title, books with "reference" in the title, and books which contained problems and solutions. Before the examination began Deena Clark, an examination supervisor, read over a loud speaker system names of books that would not be permitted (Transcript Page 81). Practice examination and solution manuals were not allowed for use by engineering candidates (Transcript Pages 93 and 94). Schram's outlines and other materials were also excluded (Transcript Page 91). Also excluded was Lindeburg's 6th edition, "Engineering In Training Review Manual." (Transcript Pages 16 and 79). This decision was verified by the Board before the examination began (Transcript Page 81). After the examination had begun, Ms. Clark announced that the candidates could put certain copyrighted materials in a three-ring binder and use them which had been excluded earlier (Transcript Page 85). This was in response to candidates who needed economics tables for the examination However, no time was provided the candidate to prepare these references and only one minute was added to the examination time. (Transcript Page 85). Petitioner did not bring any economic tables to the examination site except those contained in books which were not allowed in the examination. (Transcript Page 19). Petitioner did not remove the economic tables and permitted references from the Lindeburg's review manual until lunch and these tables were not available to him on the morning examination. (Transcript Pages 22 and 88). Of the six engineering economics questions on the morning portion for the examination, the candidate correctly answered four. No data was provided on the nature of these questions. The Candidate correctly answered 53 questions in the morning (weighted x 1) and 23 questions in the afternoon (weighted x 2) for a total of 99 weighted required points. He answered eight questions correctly in the "addition" portion of the examination. The table for eight additional questions correct in the "Scoring Information Booklet" used in determining the candidates final grade shows the adjusted equated score was 126 and his scaled score was 69. (Page 21 of booklet). The value of each economics question converted to final scoring scale was enough that passage of one economics question would have resulted in passage of the examination. The exclusion of certain materials from the examination was arbitrary and capricious and was done by a few individuals without any stated objective standard published by the board. Further, the board knew before the examination which books were to be excluded and could have notified examinees of the exact items to be excluded. The Board's generally poor handling of this matter is exemplified in announcing after the examination had begun that items previously excluded could be used if placed in a ring binder but not allowing any time to prepare such materials. (Tx. pgs., 74-80, 84-86, and 91-97) The Petitioner would have used several tables which were excluded if the announcement had been made before the morning examination began with time to put the items in acceptable form. After notifications in October 1989, December 1989, and January 1990, Petition admitted that he did not call the Board of Professional Engineers to ask for guidance on books that would not be allowed on the April 1990 examination (Transcript Page 29). However, a final decision on books to be excluded was not made until approximately two weeks before the examination. The Petitioner did not show that the two questions which he missed on the Engineering Economics portion of the morning examination were missed for lack of the tables. The examination is a national examination and there is no evidence that the requirements and limits established by the Board in Florida were applicable nationwide. To alter the national instructions locally potentially adversely affects Florida results.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Petitioner be permitted to take the examination without charge on one occasion. RECOMMENDED this 27th day of March, 1991, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1991. 1/ The general information provided to examinees by the State Board regarding the values of questions on the examination and scoring it misleading or inaccurate because neither the weighted required score nor the adjusted score was 48% of 80, 280, or any other number related to the scaled score of 70. The manner in which these values are associated with the scale score of 70 is contrary to the Board's explanation and is not self evident. This is a potential problem if the matter were formally challenged, and it appears the Board needs to reassess its procedures and instructions. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5728 The Petitioner did not submit proposed findings. The Respondent submitted proposed findings which were read and considered. The following proposed findings were adopted or reject for the reasons stated: Adopted. Issue not fact. - 4. Rejected. Preliminary statement not fact. 5. -12. Adopted. Rejected. Preliminary statement not fact. Rejected as irrelevant. Rejected as preliminary statement. Adopted. Adopted. COPIES FURNISHED: Alan K. Garman Civil-Tech, Inc. 3573 Commercial Way Street B Spring Hill, FL 34606 William F. Whitson, Law Clerk Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Rex Smith Executive Director Board of Professional Engineers Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Petitioner is A graduate of the University of the East in Manila, Philippines. Petitioner is the holder of the state of Illinois C.P.A. Certificate No. 18012. On July 11, 1979, Petitioner filed an application to obtain a reciprocal certified public accountant certificate in Florida (licensure by endorsement) based upon his certificate issued by the State of Illinois. On December 14, 1979, the Board denied Petitioner's application for a reciprocal certificate for the reason that Petitioner had not graduated from an accredited four-year college or university and, accordingly, failed to satisfy the requirements set forth in Section 7(3)(b), Chapter 79-202, Laws of Florida, now codified as Section 473.308(3)(b), Florida Statutes (1979) The University of the East in Manila, Philippines, is not recognized by the Board as an accredited university in Florida and was not so recognized at the time that Petitioner received his certificate as a certified public accountant in the State of Illinois. The University of the East is not listed among the institutions of post secondary education by the Council on Postsecondary Accreditation, the official listing of accredited colleges and universities adopted by the Board to ensure the minimum competence of public accounting practitioners. Additionally, the University of the East in Manila, Philippines, has not been accredited by any of the regional accrediting agencies recognized by the Board. Douglas H. Thompson, Jr., the Respondent's Executive Director since 1968, is the Board's chief executive officer and, as such, carries out the Board's functions respecting applications for licensure. Mr. Thompson examined Petitioner's application pursuant to Petitioner's Illinois certificate to ascertain whether Petitioner's certificate was issued under criteria substantially equivalent to Florida's licensing criteria and determined that the criteria were not substantially equivalent. Petitioner's application was considered by the Board on two occasions and was rejected.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: Petitioner's application for a reciprocal certified public accountant certificate be denied. RECOMMENDED this 10th day of June, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Collins Building Room 101 Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1980. COPIES FURNISHED: Samuel Hankin, Esquire Commerce Building 226 South Main Street Gainesville, Florida 32602 Mr. Marianito Manalo Ilagan 9020 S.W. 56th Street Cooper City, Florida 33328 Ms. Nancy Kelley Wittenberg Secretary Department of Professional Regulation The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Petitioner is entitled to additional credit for his solutions to Problems 124 and 222 of the Principles and Practice of Engineering portion of the engineering licensure examination administered on October 30, 1998, by the National Council of Examiners for Engineers and Surveyors.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On October 30, 1998, as part of his effort to obtain a Florida engineering license, Petitioner sat for the Principles and Practice of Engineering Examination (Examination). This is a national examination developed and administered by the National Council of Examiners for Engineers and Surveyors (NCEES). Petitioner chose to be tested in civil engineering. Petitioner received a raw score of 47 on the Examination. For the civil engineering specialization, a raw score of 47 converts to a score of 69. To pass the Examination, a converted score of 70 is needed. Petitioner formally requested the NCEES to rescore his solutions to Problems 124, 125, and 222 on the Examination. At the time he made this request, Petitioner was aware that rescoring could result in the candidate's score being lowered (although he believed that, in his case, the outcome would be a higher, not a lower, score). Petitioner was wrong. The rescoring he requested resulted in his receiving a raw score of 43 (or a converted score of 65, 5 points less than he needed to pass the Examination). After being notified of the outcome of the rescoring, Petitioner requested the Florida Board of Professional Engineers to grant him a "formal administrative hearing" on the matter. Petitioner's request was granted. At hearing, Petitioner advised that he was challenging only the grading of his solutions to Problems 124 and 222 of the Examination, and that he was not pursuing his challenge to the score he had received for his solution to Problem 125. Problems 124 and 222 were worth ten (raw) points each. Problem 124 contained four subparts (or requirements). Petitioner received two (raw) points for his solution to Problem 124. Rescoring did not result in any change to this score. Due to mathematical errors that he made, Petitioner did not solve any of the subparts of Problem 124 correctly. Accordingly, in accordance with the requirements and guidelines of the NCEES scoring plan for this problem, the highest (raw) score that he could have received for his solution to this problem was a two, which is the score he received. Problem 222 contained five subparts (or requirements). Petitioner originally received a (raw) score of six for his solution to Problem 222. Upon rescoring, his (raw) score was reduced to two. In attempting to solve Problem 222, Petitioner overestimated the lateral earth pressure due to his misunderstanding of the term "equivalent fluid pressure" used in the problem. In addition, in his solution to subpart (a), he did not properly specify the appropriate bar size and spacing. Giving Petitioner a (raw) score of two for his solution to Problem 222 was consistent with the requirements and guidelines of the NCEES scoring plan for this problem.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score he received from the NCEES on the Principles and Practice of Engineering portion of the October 30, 1998, engineering licensure examination. DONE AND ENTERED this 4th day of October, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 4th day of October, 1999.
The Issue The issue presented for decision herein is whether or not the Petitioner successfully completed the answers posed on the April, 1987 professional engineer's examination.
Findings Of Fact Petitioner took the April, 1987 professional engineering examination and was advised that he failed the principles and practice portion of the examine. His raw score was 45 points and the parties stipulated that he needed a minimum raw score of 48 points to pass the examination. In his request for hearing, Petitioner challenged questions 120, 123 and 420. However, during the hearing, he only presented testimony and challenged question 420. Question 420 is worth 10 points and is set forth in its entirety in Petitioner's Exhibit Number 1. For reasons of test security, the exhibit has been sealed. Question 420 requires the examinee to explore the area regarding "braced excavations" and explores the principles involved in such excavations. Question 420 requires the examinee to calculate the safety factor for a braced excavation including the depth of excavation which would cause failure by "bottom heaving". Petitioner, in calculating the safety factor, made a mathematical error when he incorporated the B-prime value calculation which was inserted into the equation in making his calculations. Question 420 does not direct the applicant to apply the calculations to either a square excavation or to a rectangular excavation. Petitioner assumed the shape of the excavation to be square and calculated the factor of safety according to that assumption. In assuming the square excavation, Petitioner did not make the more conservative calculation that will be required in making the safety factor calculation for a rectangular excavation. In this regard, an examination of Petitioner's work sheet indicates that he referenced the correct calculation on his work sheet but the calculation was not transferred to or utilized in the equation. Respondent utilizes the standard scoring plan outline, which is more commonly known as the Items Specific Scoring Plan (ISSP) which is used by the scorers in grading the exam. The ISSP provides a scoring breakdown for each question so that certain uniform criteria are met by all applicants. For example, four points are given for a correct solution on a specific question regardless of the scorer. This criteria is supplied by the person or persons who prepared the exam. The criteria indicates "in problem-specific terms, the types of deficiencies that would lead to scoring at each of the eleven (0-10) points on the scale". The ISSP awards six points on question 420 when the applicants meets the following standards: "all categories satisfied, applicant demonstrate minimally adequate knowledge in all relevant aspect of the item." ISSP awards seven points on question 420 when the applicant's answer meets the following standard: "all categories satisfied, obtains solution, but chooses less than optimum approach. Solution is awkward but reasonable". The ISSP awards eight points on question 420 when the applicant's answer meets the following standards: "all categories satisfied. Errors attributable to misread tables or calculating devices. Errors would be corrected by routine checking. Results reasonable, though not correct". The ISSP awards nine points on question 420 when the applicant's answer meets the following standard: "all categories satisfied, correct solution but excessively conservative in choice of working values; or presentation lacking in completeness of equations, diagrams, orderly steps in solution, etc." The ISSP criteria for awarding nine points as to question 420 clearly requires that the Petitioner calculate the correct solution without mathematical errors. The Petitioner's answer was not correct regardless of the assumption as to the shape of the excavation since he made a mathematical error. The ISSP criteria for awarding eight points as to question 420 allows Petitioner to calculate the answer with mathematical errors with the requirements that the results are reasonable. Petitioner made a mathematical error although his result was reasonable. His answer fits the criteria for the award of eight points in conformity with the ISSP criteria. Petitioner received six points for his answer to question 420 whereas he is entitled to an award of eight points.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent enter a Final Order determining that Petitioner failed the principles and practice portion of the April, 1987 engineering examination. RECOMMENDED this 30th day of June 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 30th day of June, 1988. COPIES FURNISHED: Glen E. Wichinsky, Esquire 900 Glades Road, 5th Floor Boca Raton, Florida 33431 Michael A. Mone', Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director Department of Professional Regulation, Board of Professional Engineers 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The ultimate issue in this proceeding is whether proposed Florida Administrative Code Rule 61G15-21 is an invalid exercise of delegated legislative authority.
Findings Of Fact Florida Administrative Code Rule 61G15-21.004, in relevant part, states: The criteria for determining the minimum score necessary for passing the Engineering Fundamentals Examination shall be developed through the collective judgment of qualified experts appointed by NCEES to set the raw score that represents the minimum amount of knowledge necessary to pass the examination. The judges shall use a Modified Angoff Method in determining the minimally acceptable raw score necessary to pass the Fundamentals of Engineering Examination. Using the above mentioned Modified Angoff Method, the judges will indicate the probability that a minimally knowledgeable Fundamentals of Engineering examinee would answer any specific questions correctly. The probability of a correct response is then assigned to each question. Each judge will then make an estimate of the percentage of minimally knowledgeable examinees who would know the answer to each question. The totals each of the judges is added together and divided by the number of judges to determine the overall estimate of the minimum standards necessary. The minimum number of correct answers required to achieve a passing score will take into account the relative difficulty of each examination through scaling and equating each examination to the base examination. The raw score necessary to show competence shall be deemed to be a 70 on a scale of 100. A passing grade on Part Two of the examination is defined as a grade of 70 or better. The grades are determined by a group of knowledgeable professional engineers, who are familiar with engineering practice and with what is required for an applicable engineering practice and with what is required for an applicable engineering task. These professional engineers will establish a minimum passing score on each individual test item (i.e., examination problem). An Item Specific Scoring Plan (ISSP) will be prepared for each examination item based upon the NCEES standard scoring plan outline form. An ISSP will be developed by persons who are familiar with each discipline including the item author, the item scorer, and other NCEES experts. On a scale of 0-10, six (6) will be a minimum passing standard and scores between six (6) and ten (10) will be considered to be passing scores for each examination item. A score of five (5) or lower will be considered an unsatisfactory score for that item and examinee will be considered to have failed that item. To pass, an examinee must average six (6) or greater on his/her choice of eight (8) exam items, that is, the raw score must be forty- eight (48) or greater based on a scale of eighty (80). This raw score is then converted to a base 100 on which, as is noted above, a passing grade will be seventy (70). The proposed changes to Florida Administrative Code Rule 61G15-21.004, in relevant part, state: The passing grade for the Engineering Fundamentals Examination is 70 or better. The criteria for determining the minimum score necessary for passing the Engineering Fundamentals Examination shall be developed through the collective judgment of qualified experts appointed by NCEES to set the raw score that represents the minimum amount of knowledge necessary to pass the examination. The judges shall use a Modified Angoff Method in determining the minimally acceptable raw score necessary to pass the Fundamentals of Engineering Examination. Using the above mentioned Modified Angoff Method, the judges will indicate the probability that a minimally knowledgeable Fundamentals of Engineering examinee would answer any specific questions correctly. The probability of a correct response is then assigned to each question. Each judge will then make an estimate of the percentage of minimally knowledgeable examinees who would know the answer to each question. The totals each of the judges is added together and divided by the number of judges to determine the overall estimate of the minimum standards necessary. The minimum number of correct answers required to achieve a passing score will take into account the relative difficulty of each examination through scaling and equating each examination to the base examination. The raw score necessary to show competence shall be deemed to be a 70 on a scale of 100. The passing grade for the Principles and Practice Examination is 70 or better. A passing grade on Part Two of the examination is defined as a grade of 70 or better. The grades are determined by a group of knowledgeable professional engineers, who are familiar with engineering practice and with what is required for an applicable engineering practice and with what is required for an applicable engineering task. These professional engineers will establish a minimum passing score on each individual test item (i.e., examination problem). An Item Specific Scoring Plan (ISSP) will be prepared for each examination item based upon the NCEES standard scoring plan outline form. An ISSP will be developed by persons who are familiar with each discipline including the item author, the item scorer, and other NCEES experts. On a scale of 0-10, six (6) will be a minimum passing standard and scores between six (6) and ten (10) will be considered to be passing scores for each examination item. A score of five (5) or lower will be considered an unsatisfactory score for that item and examinee will be considered to have failed that item. To pass, an examinee must average six (6) or greater on his/her choice of eight (8) exam items, that is, the raw score must be forty- eight (48) or greater based on a scale of eighty (80). This raw score is then converted to a base 100 on which, as is noted above, a passing grade will be seventy (70). Petitioner resides in Tampa, Florida. On April 11, 2003, Petitioner took a national examination that Petitioner must pass to be licensed by the state as a professional engineer. On July 1, 2003, Petitioner received a letter from the Board advising Petitioner that he had received a failing grade on the examination. On July 2, 2003, Petitioner unsuccessfully requested the raw scores on his examination from a representative of the National Council of Examiners for Engineering and Surveying (NCEES). The NCEES is the national testing entity that conducts examinations and determines scores for the professional engineer examination required by the state. On July 9, 2003, Petitioner submitted a formal request to the Board for all of the raw scores related to Petitioner "and all past P.E. Exams that the Petitioner had taken." A representative of the Board denied Petitioner's request explaining that the raw scores are kept by the NCEES and "it is not their policy to release them." The Board's representative stated that the Board was in the process of adopting new rules "that were in-line with the policies of the NCEES." On July 31, 2003, Petitioner requested the Board to provide Petitioner with any statute or rule that authorized the Board to deny Petitioner's request for raw scores pursuant to Section 119.07(1)(a), Florida Statutes (2003). On the same day, counsel for the Board explained to Petitioner that the Board is not denying the request. The Board is unable to comply with the request because the Board does not have physical possession of the raw scores. Petitioner and counsel for Respondent engaged in subsequent discussions that are not material to this proceeding. On August 6, 2003, Petitioner requested counsel for Respondent to provide Petitioner with copies of the proposed rule changes that the Board intended to consider on August 8, 2003. On August 27, 2003, Petitioner filed a petition with the Board challenging existing Florida Administrative Code Rule 61G15-21.004. The petition alleged that parts of the existing rule are invalid. Petitioner did not file a challenge to the existing rule with DOAH. The Petition for Hearing states that Petitioner is filing the Petition for Hearing pursuant to Subsections 120.56(1) and (3)(b), Florida Statutes (2003). However, the statement of how Petitioner's substantial interests are affected is limited to the proposed changes to the existing rule. During the hearing conducted on January 29, 2004, Petitioner explained that he does not assert that the existing rule is invalid. Rather, Petitioner argues that the Board deviates from the existing rule by not providing examinees with copies of their raw scores and by failing to use raw scores in the determination of whether an applicant achieved a passing grade on the exam. Petitioner further argues that the existing rule benefits Petitioner by purportedly requiring the Board to use raw scores in the determination of passing grades. The elimination of that requirement in the proposed rule arguably will adversely affect Petitioner's substantial interests. The Petition for Hearing requests several forms of relief. The Petition for Hearing seeks an order granting Petitioner access to raw scores, a determination that Petitioner has met the minimum standards required under the existing rule, and an order that the Board grant a license to Petitioner. The Petition for Hearing does not request an order determining that the proposed rule changes constitute an invalid exercise of delegated legislative authority.
The Issue The primary issue is whether the process used by the Department of Education (Department) for evaluating and ranking the proposals submitted in response to Request For Proposal (RFP) 99-03 for the Florida Comprehensive Assessment Test (FCAT) administration contract was contrary to the provisions of the RFP in a way that was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The RFP for the FCAT describes a five stage process for evaluating proposals. In Stage I, the Department’s Purchasing Office determined whether a proposal contained certain mandatory documents and statements and was sufficiently responsive to the requirements of the RFP to permit a complete evaluation. Stage II involved the Department’s evaluation of a bidder’s corporate qualifications to determine whether the bidder has the experience and capability to do the type of work that will be required in administering the FCAT. Stage III was the Department’s evaluation of a bidder’s management plan and production proposal. In Stage IV, the Department evaluated a bidder’s cost proposal. Stage V involved the ranking of proposals based on points awarded in Stages II-IV. If a proposal did not meet the requirements at any one stage of the evaluation process, it was not to be evaluated in the following stage. Instead, it was to be disqualified from further consideration. Stages II and III of the evaluation process were conducted by an evaluation team comprised of six Department employees: Dr. Debby Houston, Ms. Lynn Joszefczyk, Dr. Peggy Stillwell, Dr. Cornelia Orr, Dr. Laura Melvin, and Ms. Karen Bennett. Dr. Thomas Fisher, head of the Department’s Assessment and Evaluation Services Section, and Dr. Mark Heidorn, Administrator for K-12 Assessment Programs within the Department’s Assessment and Evaluation Services Section, served as non-voting co-chairs of the evaluation team. The focus of this proceeding is Stage II of the evaluation process addressing a bidder’s corporate qualifications. RFP Provisions Regarding Corporate Qualification The FCAT administration contractor will be required to administer tests to approximately one and a half million students each year in a variety of subject areas at numerous grade levels. The FCAT program involves a complex set of interrelated work activities requiring specialized human resources, technological systems and procedures. The FCAT must be implemented annually within limited time periods. The FCAT administration contractor must meet critical deadlines for the delivery of test materials to school districts and the delivery of student scores prior to the end of the school year. In developing the RFP, the Department deliberately established a set of minimum requirements for corporate qualifications that a bidder was to demonstrate in order for its proposal to be eligible for further evaluation. The purpose of the RFP’s minimum corporate qualifications requirements was to limit bidding to qualified vendors who have demonstrated prior experience in successfully administering large-scale assessment projects like the FCAT, thereby providing the Department with some degree of assurance that the winning bidder could successfully administer the FCAT. The instructions to bidders regarding the minimum requirements for corporate qualifications are contained in RFP Section 10, which gives directions on proposal preparation. Section 10.1, which lists certain mandatory documents and statements to be included in the bidder’s proposal, requires that a transmittal letter contain "[a] statement certifying that the bidder has met the minimum corporate qualifications as specified in the RFP." These "minimum corporate qualifications" are set forth in RFP Appendix J. RFP Section 10.2 identifies what a bidder is required to include in its proposal with respect to corporate qualifications. The first paragraph of Section 10.2 directs a bidder generally to describe its qualifications and experience performing tasks similar to those that it would perform in administering the FCAT, in order to demonstrate that the bidder is qualified where it states: Part II of a bidder’s proposal shall be entitled Corporate Qualifications. It shall provide a description of the bidder’s qualifications and prior experience in performing tasks similar to those required in this RFP. The discussion shall include a description of the bidder’s background and relevant experience that qualifies it to provide the products and services required by the RFP. RFP Section 10.2, however, is not limited to a directive that qualifications and past experience be described generally. Instead, Section 10.2, also communicates, in plain and unambiguous terms, that there are specific minimum corporate qualifications a bidder must demonstrate: The minimum expectations for corporate qualifications and experience are shown in Appendix J. There are two separate sets of factors, one set of eight for the developmental contractor and another set of nine for the administration contractor. Bidders must demonstrate their Corporate Qualifications in terms of the factors that are applicable to the activities for which a bid is being submitted -- development or administration. For each criterion, the bidder must demonstrate that the minimum threshold of experience has been achieved with prior completed projects. (Emphasis added.) Moreover, Section 10.2 singles out for emphasis, in relation to the administration component of the RFP, the importance placed on a bidder’s ability to demonstrate experience processing a large volume of tests: The [bidder’s prior completed] projects must have included work tasks similar to those described herein, particularly in test development or processing a comparable number of tests. The bidder will provide a description of the contracted services; the contract period; and the name, address, and telephone number of a contact person for each of the contracting agencies. This description shall (1) document how long the organization has been providing similar services; (2) provide details of the bidder’s experience relevant to the services required by this RFP; and (3) describe the bidder’s other testing projects, products, and services that are similar to those required by this RFP. (Emphasis added.) The Department thus made clear its concern that bidders demonstrate experience with large-scale projects. RFP Appendix J sets forth nine different criteria (C1 through C9) for the administration contractor. As stated in RFP Section 10.2, "[f]or each criterion, the bidder must demonstrate that the minimum threshold of experience has been achieved with prior completed projects . . . ." (emphasis added). Appendix J contains a chart which lists for each criterion: (1) a summary of the related FCAT work task, (2) the detailed criteria for the bidder’s experience related to that work task, and (3) the necessary documentation a bidder must provide. Criterion C4 and Criterion C6 include work tasks that involve the use of image-based scoring technology. C4 and C6 are the only corporate qualifications criteria at issue in this proceeding. RFP Provisions Involving Corporate Qualifications for Image-Based Scoring "Handscoring" is the test administration activity in which open-ended or performance-based student responses are assessed. This practice involves a person reading something the student has written as part of the test, as distinguished from machine scoring multiple choice responses (i.e., the filled-in "bubbles" on an answer sheet). There are two types of handscoring: (1) paper-based handscoring, and (2) image-based handscoring. Paper-based handscoring requires that a student response paper be sent to a reader, who then reviews the student’s response as written on the paper and enters a score on a separate score sheet. Image-based handscoring involves a scanned image of the student’s response being transmitted to a reader electronically. The student’s response is then projected on a computer screen, where the reader reviews it and assigns a score using the computer. The RFP requires that the reading and math portions of the FCAT be handscored on-line using imaging technology beginning with the February 2000 FCAT administration. The RFP provides that the writing portion of the FCAT may be handscored using either the paper-based method or on-line imaging technology during the February 2000 and 2001 FCAT administrations. However, on-line image-based scoring of the writing portion of the FCAT is required for all FCAT administrations after February 2001. An image-based scoring system involves complex computer technology. William Bramlett, an expert in designing and implementing large-scale imaging computer systems and networks, presented unrefuted testimony that an image-based scoring system will be faced with special challenges when processing large volumes of tests. These challenges involve the need to automate image quality control, to manage the local and wide area network load, to assure adequate server performance and storage requirements, and to manage the work flow in a distributed environment. In particular, having an image-based scoring system process an increasing volume of tests is not simply a matter of adding more components. Rather, the system’s basic software architecture must be able to understand and manage the added elements and volume involved in a larger operation. According to Bramlett, there are two ways that the Department could assess the ability of a bidder to perform a large- scale, image-based scoring project such as the FCAT from a technological perspective: (1) have the bidder provide enough technological information about its system to be able to model or simulate the system and predict its performance for the volumes involved, or (2) require demonstrated ability through completion of prior similar projects. Dr. Mark Heidorn, Administrator for Florida’s K-12 Statewide Assessment Programs, was the primary author of RFP Sections 1-8, which describe the work tasks for the FCAT -- the goods and services vendors are to provide and respond to in their technical proposals. Dr. Heidorn testified that in the Department’s testing procurements involving complex technology, the Department has never required specific descriptions of the technology to be used. Instead, the Department has relied on the bidder’s experience in performing similar projects. Thus, the RFP does not specifically require that bidders describe in detail the particular strategies and approaches they intend to employ when designing and implementing an image-based scoring system for FCAT. Instead, the Department relied on the RFP requirements calling for demonstrated experience as a basis to understand that the bidder could implement such an image-based scoring system. Approximately 717,000 to 828,000 student tests will be scored annually by the FCAT administration contractor using imaging technology. The RFP, however, does not require that bidders demonstrate image-based scoring experience at that magnitude. Instead, the RFP requires bidders to demonstrate only a far less demanding minimum level of experience using image-based scoring technology. Criterion C4 and Criterion C6 in Appendix J of the RFP each require that a bidder demonstrate prior experience administering "a minimum of two" assessment programs using imaged- based scoring that involved "at least 200,000 students annually." The requirements for documenting a "minimum of two" programs or projects for C4 and C6 involving "at least 200,000 students annually" are material because they are intended to provide the Department with assurance that the FCAT administration contractor can perform the large-scale, image-based scoring requirements of the contract from a technological perspective. Such experience would indicate that the bidder would have been required to address the sort of system issues described by Bramlett. Dr. Heidorn testified that the number 200,000 was used in C4 and C6 "to indicate the level of magnitude of experience which represented for us a comfortable level to show that a contractor had enough experience to ultimately do the project that we were interested in completing." Dr. Fisher, who authored Appendix J, testified that the 200,000 figure was included in C4 and C6 because it was a number judged sufficiently characteristic of large-scale programs to be relevant for C4 and C6. Dr. Fisher further testified that the Department was interested in having information that a bidder’s experience included projects of a sufficient magnitude so that the bidder would have experienced the kinds of processing issues and concerns that arise in a large-scale testing program. The Department emphasized this specific quantitative minimum requirement in response to a question raised at the Bidder’s Conference held on November 13, 1998: Q9: In Appendix J, the criteria for evaluating corporate quality for the administration operations C4, indicates that the bidder must have experience imaging as indicated. Does this mean that the bid [sic] must bid for using [sic] imaging technology for reading and mathematics tests? A: Yes. The writing assessment may be handscored for two years, and then it will be scored using imaging technology. To be responsive, a bid must be for imaging. The corporate experience required (200,000 students annually for which reports were produced in three months) could be the combined experience of the primary contractor and the subcontractors. (Emphasis added.) Criterion C4 addresses the RFP work tasks relating to handscoring, including both the image-based handscoring of the reading and math portions of the FCAT for all administrations and the writing portions of the FCAT for later administrations. The "Work Task" column for C4 in Appendix J of the RFP states: Design and implement efficient and effective procedures for handscoring student responses to performance tasks within the limited time constraints of the assessment schedule. Handscoring involves image-based scoring of reading and mathematics tasks for all administrations and writing tasks for later administrations at secure scoring sites. Retrieve and score student responses from early district sample schools and deliver required data to the test development contractor within critical time periods for calibration and scaling. The "Necessary Documentation" column for C4 in Appendix J states: Bidder must document successful completion of a minimum of two performance item scoring projects for statewide assessment programs during the last four years for which the bidder was required to perform as described in the Criteria column. (Emphasis added.) The "Criteria" column for C4 in Appendix J, like the related work tasks in the RFP, addresses both image-based handscoring of reading and math, as well as paper-based or image- based handscoring of writing. In connection with all handscoring work tasks, "[t]he bidder must demonstrate completion of test administration projects for a statewide program for which performance items were scored using scoring rubrics and associated scoring protocols." With respect to the work tasks for handscoring the reading and math portions of the FCAT, "[t]he bidder must demonstrate completion of statewide assessment programs involving scoring multiple-choice and performance items for at least 200,000 students annually for which reports were produced in three months." In addition, for the reading and math work tasks, "[e]xperience must been shown in the use of imaging technology and hand-scoring student written responses with completion of scoring within limited time restrictions." This provision dealing with "imaging technology" experience self-evidently addresses the reading and math components, because separate language addresses imaging experience in connection with the writing component. The relevant handscoring experience for the reading and math aspects of the program is experience using image-based technology. By contrast, with respect to the work tasks for scoring the writing portions of the FCAT, "the bidder must also demonstrate completion of statewide assessment programs involving paper-based or imaged scoring student responses to writing assessment prompts for at least 200,000 students annually for which reports were produced in three months." (Emphasis added.) Criterion C6 addresses work tasks relating to designing and implementing systems for processing, scanning, imaging and scoring student responses to mixed-format tests within limited time constraints. The "Work Task" column for C6 in RFP Appendix J states: Design and implement systems for the processing, scanning, imaging, and scoring of student responses to test forms incorporating both multiple-choice and constructed response items (mixed-format) within the limited time constraints of the assessment schedule. Scoring of student responses involves implementation of IRT scoring tables and software provided by the development contractor within critical time periods. The "Necessary Documentation" column for C6 in Appendix J states: Bidder must document successful completion of a minimum of two test administration projects for statewide assessment programs during the last four years in which the bidder was required to perform as described in the Criteria column. (Emphasis added.) The Criteria column for C6 in Appendix J states: The bidder must demonstrate completion of test administration projects for statewide assessment programs or other large-scale assessment programs that required the bidder to design and implement systems for processing, scanning, imaging, and scoring responses to mixed-format tests for at least 200,000 students annually for which reports were produced in three months. Experience must be shown in use of imaging student responses for online presentation to readers during handscoring. (Emphasis added.) RFP Provisions Per Corporate Qualifications The procedure for evaluating a bidder’s corporate qualifications is described in RFP Section 11.3: The Department will evaluate how well the resources and experience described in each bidder’s proposal qualify the bidder to provide the services required by the provisions of this RFP. Consideration will be given to the length of time and the extent to which the bidder and any proposed subcontractors have been providing services similar or identical to those requested in this RFP. The bidder’s personnel resources as well as the bidder’s computer, financial, and other technological resources will be considered in evaluating a bidder’s qualifications to meet the requirements of this RFP. Client references will be contacted and such reference checks will be used in judging a bidder’s qualifications. The criteria to be used to rate a bidder’s corporate qualifications to meet the requirements of this RFP are shown in Appendix J and will be applied as follows: * * * Administrative Activities. Each of the nine administration activities criteria in Appendix J will be individually rated by members of the evaluation team. The team members will use the rating scale shown in Figure 1 below. Individual team members will review the bidder’s corporate qualifications and rate the response with a rating of one to five. The ratings across all evaluators for each factor will be averaged, rounded to the nearest tenth, and summed across all criteria. If each evaluator assigns the maximum number of points for each criterion, the total number of points will be 45. To meet the requirements of Stage II, the proposal must achieve a minimum rating of 27 points and have no individual criterion for which the number of points averaged across evaluators and then rounded is less than 3.0. Each proposal that receives a qualifying score based on the evaluation of the bidder’s qualifications will be further evaluated in Stage III. Figure 1 Evaluation Scale for Corporate Qualifications 5 Excellent 4 3 Satisfactory 2 1 Unsatisfactory The bidder has demonstrated exceptional experience and capability to perform the required tasks. The bidder has demonstrated that it meets an acceptable level of experience and capability to perform the required tasks. The bidder either has not established its corporate qualifications or does not have adequate qualifications. RFP Section 11.3 provides that each of the nine corporate qualifications criteria for administration operations in Appendix J (C1 through C9) will be individually rated by the six members of the evaluation team using a scale of one to five. A rating of three is designated as "satisfactory" which means that "[t]he bidder has demonstrated that it meets an acceptable level of experience and capability to perform the required tasks." In order to be further evaluated, Section 11.3 provides that there must be no individual corporate qualifications criterion for which the bidder’s proposal receives a score less than 3.0 (average points across evaluators). Dr. Fisher, the primary author of Section 11.3 of the RFP, referred to the 3.0 rating as the "cut score." (Emphasis added.) The RFP’s clear and unambiguous terms thus establish the "minimum threshold" of experience that a bidder "must demonstrate" in its proposal for Criterion C1 through Criterion C9. The "minimum threshold" of experience that a bidder must demonstrate for each criterion is described in Appendix J of the RFP. If a proposal failed to demonstrate that the bidder meets the minimum threshold of experience for a particular criterion in Appendix J, the bidder obviously would not have demonstrated "that it meets an acceptable level of experience and capability to perform the required tasks." Thus, in that setting, an evaluator was to have assigned the proposal a rating of less than "satisfactory," or less than three, for that criterion. (Emphasis added.) The fact that a score less than "3" was expected for -- and would eliminate -- proposals that did not demonstrate the "minimum threshold" of experience does not render meaningless the potential scores of "1" and "2." Those scores may reflect the degree to which a bidder’s demonstrated experience was judged to fall below the threshold. Although some corporate capability minimums were stated quantitatively (i.e., "minimum of two," or "at least 200,000"), others were open to a more qualitative assessment (i.e., "large-scale," "systems," or "reports"). Moreover, a proposal that included demonstrated experience in some manner responsive to each aspect of Appendix J might nevertheless be assigned a score of less than "3," based on how an evaluator assessed the quality of the experience described in the proposal. By the terms of the RFP, however, an average score across evaluators of less than 3 represented essentially a decision that the minimum threshold of experience was not demonstrated. Had the Department truly intended Appendix J to reflect only general targets or guidelines, there were many alternative ways to communicate such an intent without giving mandatory direction about what bidders "must demonstrate" or without establishing quantitative minimums (i.e. "a minimum of two," or "at least 200,000"). RFP Appendix K, for instance, sets forth the evaluation criteria for technical proposals in broad terms that do not require the bidder to provide anything in particular. Even within Appendix J, other than in Criterion C4 and Criterion C6, bidders were to show experience with "large-scale" projects rather than experience at a quantified level. Pursuant to the RFP’s plain language, in order to meet the "minimum threshold" of experience for Criterion C4 and Criterion C6, a bidder "must demonstrate," among other things, successful completion of a "minimum of two" projects, each involving the use of image-based scoring technology in administering tests to "at least 200,000 students annually." Department’s Evaluation of Corporate Qualifications In evaluating Harcourt’s proposal, the Department failed to give effect to the plain RFP language stating that a bidder "must document" successful completion of a "minimum of two" testing projects involving "at least 200,000 students annually" in order to meet the "minimum threshold" of experience for C4 and C6. Dr. Fisher was the primary author of Sections 10, 11 and Appendix J of the RFP. He testified that during the Stage II evaluation of corporate qualifications, the evaluation team applied a "holistic" approach, like that used in grading open-ended written responses in student test assessments. Under the holistic approach that Dr. Fisher described, each member of the evaluation team was to study the proposals, compare the information in the proposals to everything contained in Appendix J, and then assign a rating for each criterion in Appendix J based on "how well" the evaluator felt the proposal meets the needs of the agency. Notwithstanding Dr. Fisher’s present position, the RFP’s terms and their context demonstrate that the minimum requirements for corporate qualifications are in RFP Appendix J. During the hearing, Dr. Fisher was twice asked to identify language in the RFP indicating that the Department would apply a "holistic" approach when evaluating corporate qualifications. Both times, Dr. Fisher was unable to point to any explicit RFP language putting bidders on notice that the Department would be using a "holistic" approach to evaluating proposals and treating the Appendix J thresholds merely as targets. In addition, Dr. Fisher testified that the Department did not engage in any discussion at the bidders’ conference about the evaluation method that was going to be used other than drawing the bidders’ attention to the language in the RFP. As written, the RFP establishes minimum thresholds of experience to be demonstrated. Where, as in the RFP, certain of those minimum thresholds are spelled out in quantitative terms that are not open to interpretation or judgment, it is neither reasonable nor logical to rate a proposal as having demonstrated "an acceptable level of experience" when it has not demonstrated the specified minimum levels, even if other requirements with which it was grouped were satisfied. The plain RFP language unambiguously indicates that an analytic method, not a "holistic" method, will be applied in evaluating corporate qualifications. Dr. Fisher acknowledged that, in an assessment using an analytic method, there is considerable effort placed up front in deciding the specific factors that will be analyzed and those factors are listed and explained. Dr. Fisher admitted that the Department went into considerable detail in Appendix J of the RFP to explain to the bidders the minimums they had to demonstrate and the documentation that was required. In addition, Dr. Orr, who served as a member of the evaluation team and who herself develops student assessment tests, stated that in assessments using the "holistic" method there is a scoring rubric applied, but that rubric does not contain minimum criteria like those found in the RFP for FCAT. The holistic method applied by the Department ignores very specific RFP language which spells out minimum requirements for corporate qualifications. Harcourt’s Corporate Qualifications for C4 and C6 Harcourt’s proposal lists the same three projects administered by Harcourt for both Criterion C4 and Criterion C6: the Connecticut Mastery Test ("CMT"), the Connecticut Academic Performance Test ("CAPT") and the Delaware Student Testing Program ("DSTP"). Harcourt’s proposal also lists for Criterion C4 projects administered by its proposed scoring subcontractors, Measurement Incorporated ("MI") and Data Recognition Corporation ("DRC"). However, none of the projects listed for MI or DRC involve image- based scoring. Thus, the MI and DRC projects do not demonstrate any volume of image-based scoring as required by C6 and by the portion of C4 which relates to the work task for the imaged-based scoring of the math and reading portions of the FCAT. Harcourt’s proposal states that "[a]pproximately 35,000 students per year in grade 10 are tested with the CAPT." Harcourt’s proposal states that "[a]pproximately 120,000 students per year in grades 4, 6 and 8 are tested with the CMT." Harcourt’s proposal states that "[a]pproximately 40,000 students in grades 3, 5, 8, and 10" are tested with the DSTP. Although the descriptions of the CMT and the CAPT in Harcourt’s proposal discuss image-based scoring, there is nothing in the description of the DSTP that addresses image-based scoring. There is no evidence that the evaluators were ever made aware that the DSTP involved image-based scoring. Moreover, although the Department called the Delaware Department of Education ("DDOE") as a reference for Harcourt’s development proposal, the Department did not discuss Harcourt’s administration of the DSTP (including whether the DSTP involves image-based scoring) with the DDOE. Harcourt overstated the number of students tested in the projects it referenced to demonstrate experience with image-based scoring. Harcourt admitted at hearing that, prior to submitting its proposal, Harcourt had never tested 120,000 students with the CMT. In fact, the total number of students tested by Harcourt on an annual basis under the CMT has ranged from 110,273 in the 1996- 97 school year to 116,679 in the 1998-99 school year. Harcourt also admitted at hearing that, prior to submitting its proposal, Harcourt had never tested 35,000 students in grade 10 with the CAPT. Instead, the total number of grade 10 students tested by Harcourt on an annual basis with the CAPT ranged from 30,243 in 1997 to 31,390 in 1998. In addition, Harcourt admitted at hearing that, prior to submitting its proposal, it had conducted only one "live" administration of the DSTP (as distinguished from field testing). That administration of the DSTP involved only 33,051, not 40,000, students in grades 3, 5, 8 and 10. Harcourt itself recognized that "field tests" of the DSTP are not responsive to C4 and C6, as evidenced by Harcourt’s own decision not to include in its proposal the number of students field tested under the DSTP. Even assuming that the numbers in Harcourt’s proposal are accurate, and that the description of the DSTP in Harcourt’s proposal reflected image-based scoring, Harcourt’s proposal on its face does not document any single project administered by Harcourt for C4 or C6 involving image-based testing of more than 120,000 students annually. When the projects are aggregated, the total number of students claimed as tested annually still does not reach the level of "at least 200,000;" it comes to only 195,000, and it reaches that level only once due to the single administration of the DSTP. Moreover, even if that 195,000 were considered "close enough" to the 200,000 level required, it was achieved only one time, while Appendix J plainly directs that there be a minimum of two times that testing at that level has been performed. The situation worsens for Harcourt when using the true numbers of students tested under the CMT, CAPT, and DSTP, because Harcourt cannot document any single image-based scoring project it has administered involving testing more than 116,679 students annually. Moreover, when the true numbers of students tested are aggregated, the total rises only to 181,120 students tested annually on one occasion, and no more than 141,663 tested annually on any other occasion. Despite this shortfall from the minimum threshold of experience, under the Department’s holistic approach the evaluators assigned Harcourt’s proposal four ratings of 3.0 and two ratings of 4.0 for C4, for an average of 3.3 on C4; and five ratings of 3.0 and one rating of 4.0 for C6, for an average of 3.2 on C6. Applying the plain language of the RFP in Sections 10 and 11 and Appendix J, Harcourt did not demonstrate that it meets an acceptable level of experience and capability for C4 or C6, because Harcourt did not satisfy the minimum threshold for each criterion by demonstrating a minimum of two prior completed projects involving image-based scoring requiring testing of at least 200,000 students annually. Harcourt’s proposal should not have received any rating of 3.0 or higher on C4 or C6 and should have been disqualified from further evaluation due to failure to demonstrate the minimum experience that the Department required in order to be assured that Harcourt can successfully administer the FCAT program. NCS’s Compliance With RFP Requirements Even though the NCS proposal did not meet all of the mandatory requirements, and despite the requirement of Section 11.2 that the proposal be automatically disqualified under such circumstances, the Department waived NCS’s noncompliance as a minor irregularity. The factors in C4 and C6 were set, minimal requirements with which NCS did not comply. For example, one of the two programs NCS submitted in response to Criteria C4 and C6 was the National Assessment of Educational Progress program ("NAEP"). NAEP, however, is not a "statewide assessment program" within the meaning of that term as used in Criteria C4 and C6. Indeed, NCS admitted that NAEP is not a statewide assessment program and that, without consideration of that program, NCS’s proposal is not responsive to Criteria C4 and C6 because NCS has not have submitted the required proof of having administered two statewide assessment programs. This error cannot be cured by relying on the additional experience of NCS’s subcontractor because that experience does not show that its subcontractor produced reports within three months, and so such experience does not demonstrate compliance with Criteria C4. The Department deliberately limited the competition for the FCAT contract to firms with specified minimum levels of experience. As opined at final hearing, if the Department in the RFP had announced to potential bidders that the type of experience it asked vendors to describe were only targets, goals and guidelines, and that a failure to demonstrate target levels of experience would not be disqualifying, then the competitive environment for this procurement would have differed since only 2.06 evaluation points (out of a possible 150) separated the NCS and Harcourt scores. Dr. Heidorn conceded that multiple companies with experience in different aspects of the FCAT program -- a computer/imaging company and a firm experienced in educational testing -- might combine to perform a contract like the FCAT. Yet, that combination of firms would be discouraged from bidding because they could not demonstrate the minimum experience spelled out in the RFP. Language in the RFP, indicating the "holistic" evaluation that was to be applied, could have resulted in a different field of potential and actual bidders.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, State of Florida, Department of Education, enter a Final Order rejecting the bids submitted by Harcourt and NCS for the administration component of the RFP. The Department should then seek new proposals. DONE AND ENTERED this 25th day of May, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1999. COPIES FURNISHED: Karen D. Walker, Esquire Holland and Knight, LLP Post Office Drawer 810 Tallahassee, Florida 32302 Mark D. Colley, Esquire Holland and Knight, LLP Suite 400 2100 Pennsylvania Avenue, Northwest Washington, D.C. 20037 Charles S. Ruberg, Esquire Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Paul R. Ezatoff, Jr., Esquire Christopher B. Lunny, Esquire Katz, Kutter, Haigler, Alderman, Bryant and Yon, P.A. 106 East College Avenue, Suite 1200 Tallahassee, Florida 32302-7741 Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
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
Findings Of Fact Test Anxiety at the February 1994 General Contractor's Examination The General Contractor's Examination used in the licensing of individuals as general contractors is divided into three parts, each of which may be passed separately. Credit for passing any one portion of the examination is good for a period of only one year. An applicant for a license as a General Contractor is limited in taking any part of the examination to three times per year. If an applicant fails to pass all three parts of the examination in one year, therefore, the applicant must commence the examination process anew, as if none of the portions of the examination had been passed. On February 17, 1994, William T. Davenport, sat for the Contract Administration portion of the exam for the third time within a one-year period. At each of the two examinations taken earlier, he had passed one portion. The Contract Administration portion was the only part he had not yet passed. Mr. Davenport was anxious as he waited to take the exam. He fully realized that if he did not pass the Contract Administration portion he would have to start the examination process all over again. His concern was generated not only from the perspective of delay and inconvenience attendant to having to repeat the entire exam process, but also from the perspective of cost. Repeating the process would require him to pay the full exam fee after having paid already a full examination fee for each of three examinations in the year of his attempt to successfully complete the examination requirements for licensure. Different Approved Reference Lists The Construction Industry Licensing Board approves reference materials that applicants may use during the examination and issues a list of those materials periodically. The Reference List for the February examination covered the period between November 1, 1993 and February 28, 1994. On that list was a book Mr. Davenport brought with him to the examination: Practical Mathematics, 3rd Edition, Copyright 1972. As Mr. Davenport sat nervously awaiting commencement of the exam, a proctor removed Practical Mathematics from his desk indicating that use of the book was not allowed. Mr. Davenport relates his response to the incident in this way, (Tr. 26.) The anxiety was very high at that point. My concern was try to get through the exam and, when the book was taken away from me, I panicked, to be blunt. I just totally panicked. Unlike the testing period from November 1, 1993 to February 28, 1994, Practical Mathematics was not on the Reference List for the next period of testing, from March 1, through June 30, 1994. The later list, issued January 13, had been out for over a month at the time of the exam. It is likely the proctor removed the book in mistaken reliance on the later list. As it turned out, the proctor returned the book to Mr. Davenport either shortly before the examination commenced. As he did so, the proctor commented, "Well, I don't know." (Tr. 25.) Mr. Davenport did not use the book during the exam because, "[a]t that point, I was reluctant to use the book ... I didn't want the test to be invalidated and I didn't want to be challenged." Id. Not using the book proved to be critical to whether Mr. Davenport passed the Contract Administration portion of the exam. He scored a 68. A passing grade is 70. Had Mr. Davenport answered correctly question number 3, which was worth four points, he would have received a 72, a passing grade. The question involves applying a percentage. Mr. Davenport could not remember whether in obtaining a percentage it is necessary to multiply or divide. Practical Mathematics has a chapter on percentages. The chapter teaches that multiplication is the arithmetic method to use when obtaining a percentage. But Mr. Davenport guessed that division should be used. He divided by the percentage and, therefore, chose an incorrect answer. Question number 3 on the exam is one of the questions that Mr. Davenport challenged originally: A 2-man crew has consistently worked at a labor performance standard ratio of 0.85 to 1. They are selected for a job requiring 60 (standard time) man-hours to perform. They will NOT work more than 8 hours per workday. NO work will be done on Saturdays or Sundays. There are NO holidays during the time the work will be performed. According to Builder's Guide to Accounting, if the job must be finished NO later than Friday afternoon at 5:00 p.m., what is the last day that they could be scheduled to start the job? Thursday of the previous week Friday of the previous week Monday of the same week Tuesday of the same week Respondent's. Ex. No. 2. The correct answer is "(D) Tuesday of the same week." The Department's expert witness explained that the correct answer is reached by way of an algebraic formula. The formula is: "the labor performance standard ratio = x (the unknown) divided by the standard time man hours" and then that answer is divided by 2 since the crew is a 2 man crew. Applied to the problem, the formula is: .85/1 = x/60, with x, once known, divided by 2. Using the formula, the calculation goes as follows: .85/1 = x/60; multiplying both sides of the equation by 60, .85(60) = x; carrying out the arithmetic calculation, x equals 51; 51/2 = 25.5. It takes 25.5 hours, therefore, for the crew to complete the job. If, as the problem states, the job must be completed by Friday at 5 p.m. and the crew works 8 hours a day, then it will take the crew 3 full days and 1.5 additional hours to complete the job. Working backward from Friday, the crew will work 8 hours on Friday, 8 hours on Thursday, and 8 hours on Wednesday for a total of 24 hours. The crew must start on Tuesday of the same week to work the additional 1.5 hours required to complete the job. One does not need to use algebra, however, to solve the problem. One can simply obtain the number of actual hours needed to complete the job by applying 85 percent (the crew's labor performance standard) to the number of standard time manhours called for by the job, in this case, 60. Here is where Mr. Davenport needed Practical Mathematics. Not knowing whether to obtain the actual hours by multiplying .85 times 60 or dividing .85 into 60, he guessed, in error, division. Through the use of division, it appears incorrectly that the number of manhours needed is 70.588. Divided by two, to take into account that there are two members of the crew, it would take the crew 35.294 hours. If it took the crew 35 hours and a fraction to complete the job on time, the crew would need to start on Monday of the same week. "(C) Monday of the same week," is the answer chosen by Mr. Davenport. Other Distractions and the Site of the Exam The examination was conducted in the Tallahassee office of the National Assessment Institute (NAI). The NAI was under contract to the Department as the vendor to conduct the exam. At the time of the examination, the exam site was a room approximately forty feet by thirteen feet four inches in size. It contained nine tables, each 18 inches by eight feet. The tables were spaced 35 inches from each other. At each table were two straight-backed chairs. There were seven candidates present for the examination. The first and last tables were unoccupied. Each of the seven candidates were allotted 34 square feet of floor space to be occupied by the candidate, the chair, the table and materials used in the exam. On the east wall of the exam room were three plate glass fixed windows. Two of the windows are 48 inches long by 36 inches tall and one is 36 inches long by 31 inches tall. The glass is one-eighth inch thick non- commercial grade. The windows are acceptable under NAI guidelines. On the other side of the windows is a workroom that measured 15.25 by 17.5 feet. Through these windows the examination supervisor seated in the work room can monitor the performance of the proctors in the exam room and see the candidates as they take the exam. The candidates, seated to the left of the workroom, do not face the workroom. Rather, their right side is exposed to the workroom. If the tables are numbered 1 through 9 on Respondent's Ex. No. 1, beginning with 1 on the side of the room marked on the exhibit as "N" or north, candidates who were seated at tables 4 through 8 were directly exposed to the workroom windows. Mr. Davenport was seated at one of the tables exposed to the workroom windows, most likely table 3, 4 or 5, that is, one of the center 3 tables. During the exam, he could see employees through the windows moving in the workroom and hear noise from the workroom. There were four employees who were present at one time or another in the workroom. Three of these employees were also engaged in proctoring the examination. In addition to the visual diversion posed by the four employees in the workroom, Mr. Davenport could hear sounds emanating from the room. The doors to the workroom, open so that the exam supervisor seated in the workroom could hear what occurred in the exam room, also allowed sounds from the workroom into the exam room. The source of the sound was the printer working, the four workers conversing from time to time and other noises associated with an office work environment. Sight of the employees and noise from the workroom prevented petitioner from fully concentrating on the exam. Mr. Davenport was also distracted by the activities of the proctors while in the exam room. During the four hours he sat for the exam, three of the four employees he observed in the workroom were also acting as proctors. They left the workroom in a rotation in order to spell each other. During their shifts as proctors, the three monitored the exam room. Mr. Davenport felt distracted by the coming and goings of the three as they rotated in and out of the room. Although there was a table designated for the proctors at a corner outside the workroom across from table 3, they rarely sat there. They sat at one of the empty tables or walked beside the seated candidates, all the time carrying out the function of a proctor: observing the candidates during examination. The FCILB Examination Administration Manual, applicable to the February General Contractor's exam, details the responsibilities of proctors in sixteen separate counts. No. 13 reads: Proctors observe at all times and move quietly about the room. Proctors do not disturb or distract candidates during the examination. If speaking is necessary, a proctor needs to be quiet and brief as possible. Proctors avoid asking candidates to move chairs to get around them, standing too close or directly behind candidates, or rustling papers and talking to other proctors in the vicinity. Petitioner's Ex. No. 2, FCILB Examination Administration Manual, p. 2-5. Movement of the proctors was necessary during the exam because of its open-book format. It is incumbent on the proctors of an open-book exam to insure that candidates do not copy questions form the examination into their reference materials. Other Candidates Reactions to the NAI's Tallahassee Office Among the three proctors the day of the exam was Ms. Jean Love. Ms. Love is also the Office Manager of the NAI's Tallahassee Office. She has worked for NAI for over two years. Before that she worked for eight and one-half years with the Department in examination services, during which she administered exams, including acting as a proctor for exams. In addition to the daily operations of the office, she oversees the administration of examinations, a function she fulfilled at the February General Contractor's exam this year. Ms. Love did not see any unusual or distracting activities on the part of the other two proctors and did not undertake any activities, in her opinion, that would have violated any of the responsibilities of proctors, including those quoted, above, from the FCILB Examination Administration Manual. The activities during the exam in the workroom, undertaken under Ms. Love's supervision, were normal activities undertaken every day at the NAI Tallahassee Office during and outside of times of examinations. Aside from typical office activities, such as conducting telephone conversations, scheduling candidates for tests, and doing paperwork that included hand-folding documentation, there was no unusual activity the day of the exam. The only event in the workroom that contributed at all to the sound of normally quiet office activity was the validation of a single candidate's check. No complaints about noise in the workroom during the February General Contractor's Exam were registered with the NAI Tallahassee Office. Nor did any of the candidates that day complain about the activities of the proctors. Ms. Love did not learn of Mr. Davenport's complaint until after he filed his challenge to the examination questions. While a proctor may have from time to time stood near Mr. Davenport as he took the exam, none of the proctors hovered over him or, in Ms. Love's opinion, did anything that would distract the average candidate. No complaint during the examination was made by Mr. Davenport. He did not complain about inability to concentrate on the exam until after he received the exam results. During Ms. Love's two years at the NAI Tallahassee office, no candidate, prior to Mr. Davenport, had ever complained about the testing environment for any reason. The comments she has received from candidates following exams have been solely complimentary. Over the last two years, the office has administered between 15 and 20 tests per month. Complimentary comments are made, on average, by one candidate per test. In the last two years the office has received, at a minimum, well in excess of 350 compliments on the testing environment from candidates. In contrast, Mr. Davenport's complaint stands alone as the only complaint about the office testing environment in the last two years at the NAI's Tallahassee Office.
Recommendation It is, accordingly, RECOMMENDED, in the alternative: That petitioner's request for reexamination or a passing grade on the "Contract Administration, Division I" portion of the General Contractor's examination administered in February 1994 be DENIED; or, in the alternative, If the Construction Industry Licensing Board is willing to overlook the petitioner's failure to challenge his grade specifically on the appropriation of the book before the examination in the petition for formal hearing and the Department's legitimate objection to the presentation of evidence on the issue, that petitioner be allowed to sit for reexamination and, if he passes the Contract Administration portion of the exam, be credited with passing the other two portions of the exam as well as if all three portions had been passed in one year. DONE and ENTERED this 1st day of December, 1994. DAVID M. MALONEY 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 December, 1994. APPENDIX Petitioner's proposed findings of fact Nos. 3, 4, 5, 6, 9, 10, 12, and 13 are adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 1, the first and last sentences are adopted. The remainder of the proposed finding, and in particular the reference to Linda Chaffin, test proctor, is rejected because it is either not supported by the evidence or argumentative in nature rather than factual. Petitioner's proposed finding of fact No. 2 is rejected as against the weight of the evidence. Petitioner's proposed finding of fact Nos. 7 and 8 are rejected as unsupported by the evidence. With respect to petitioner's proposed finding of fact No. 11, the reference to Linda Chaffin is rejected. Ms. Chaffin was not identified by the evidence as the proctor who removed the book from petitioner prior to the exam. Respondent's proposed findings of fact are adopted, in substance, insofar as material. COPIES FURNISHED: William T. Davenport 336 14th Avenue, North Jacksonville, FL 32250 William W. Woodyard Assistant General Counsel D B P R 1940 North Monroe Street Tallahassee, FL 32399-0750 Richard Hickok, Executive Director C I L B 7960 Arlington Expy., Ste. 300 Jacksonville, FL 32311-7467 Jack McRay General Counsel D B P R 1940 North Monroe Street Tallahassee, FL 32399-0750
