The Issue Whether Respondent violated section 760.10, Florida Statutes, by discriminating against Petitioner based on his race (black) and age (over 40 years old) and retaliating against him for engaging in protected activity.1
Findings Of Fact Petitioner is a male African-American who was 46 years old at the time of the formal hearing. At all times relevant to this proceeding, Petitioner was over the age of 40. Petitioner graduated from Tuskegee University with a degree in mechanical engineering. He has 17 years of experience in manufacturing and 10 years of working in management. On May 14, 2004, WDW hired Petitioner as a host and ride attendant at WDW's Animal Kingdom Dinoland Attraction. Petitioner was an hourly employee. On November 3, 2004, WDW promoted Petitioner to a position titled "Material Control Supervisor," which is a salaried position. Petitioner's promotion included a substantial pay increase from his prior hourly position. Although there was no change in his actual duties, Petitioner's job title changed from Supervisor to Superintendent. In January 2008, his job title changed to Service Manager. Material Control is one of several departments within WDW's in-house manufacturing unit, which is referred to as "Central Shops." Until September 2007, Petitioner's direct supervisor was either Laura Greico or Bill Pace.2 In September of 2007, Donald W. Drasheff, Jr., became the manufacturing manager of Central Shops and became Petitioner's direct supervisor. Mr. Drasheff, a Caucasian male, was 37 years of age at the time of the formal hearing. In addition to Petitioner, Mr. Drasheff had direct supervision over Robert Castillo (Hispanic male under 40 years of age), Anthony Roberts (black male over 40 years of age), and Betty Forrest (black female over 40 years of age). For ease of reference, these employees will be referred to as Mr. Drasheff's direct reports. All of Mr. Drasheff's direct reports were salaried superintendents or supervisors (later titled service managers). When the title of the direct reports was changed to service manager, Petitioner's pay grade was changed from a 27 to a 30. The pay grades overlap, and Petitioner received no additional compensation when his pay grade was changed. The reclassification for Petitioner and the other direct reports was in title only. No one received any additional compensation. Mr. Drasheff informed his direct reports that he expected each of them to be present at the time their subordinates clocked-in around 6:30 a.m. and clocked-out in the afternoon; absent emergency circumstance, each was to obtain advance approval of vacation and personal appointments; each had to arrange coverage from another Drasheff direct report when absent; and each had to inform him if he or she was going to be late. Mr. Drasheff informed his direct reports that he expected them to be available 24 hours per day, 7 days per week. Mr. Drasheff regularly met with all his direct reports, including Petitioner, on a one-on-one basis to discuss his expectations as a manager, the status of pending projects, and to follow up on any outstanding issues. Mr. Drasheff provided his direct reports performance critiques when he thought it necessary. Mr. Drasheff kept notes of those meetings to document his discussions with his direct reports. There was insufficient evidence to establish that Mr. Drasheff treated Petitioner any differently than he treated his other direct reports. Between September 2007 and September 2008, Petitioner's job performance was inconsistent, and he failed to meet reasonable expectations. Petitioner repeatedly complained about his work assignments and his level of pay. Mr. Drasheff repeatedly met with Petitioner and counseled him as to his performance and to areas of performance that required improvement. On March 11, 2008, Robert Castillo was hired as a service manager over the paint shop, which is a department within the Central Shop. Petitioner applied for the position for which Mr. Castillo was hired because the pay grade was higher than Petitioner's pay grade. While Mr. Castillo had little or no training as a painter, he had management skills WDW wanted. Mr. Castillo was an external hire, i.e., he was not promoted from within WDW. As an external hire, Mr. Castillo could and did command a higher salary than an employee such as Petitioner, who had been promoted from within the company. At the time he was hired, Mr. Castillo was paid $60,000.00 per year while Petitioner was earning $57,000.00. Neither the decision to hire Mr. Castillo nor the disparity in pay was based on Petitioner's race or age.3 On September 5, 2008, Mr. Drasheff again discussed with Petitioner some of the issues they had been discussing throughout the year. Those issues included Petitioner's failure to follow up on job assignments, failure to communicate non- emergency absences, failure to obtain coverage in the event of absence, failure to get to work on time, and lack of dependability. Mr. Drasheff advised Petitioner that he would evaluate Petitioner's job performance in the category of "falling behind," which is an unsatisfactory rating, and that he would place Petitioner on a 60-day performance plan (PDO), once the PDO had been constructed with the assistance of WDW's human relations department (HR). On September 7, 2008, Petitioner lodged a complaint against Mr. Drasheff by a telephone call to WDW's hotline, which is the company's complaint line. Petitioner asserted that Mr. Drasheff was harassing him, that he was being discriminated against, and that his pay was inequitable. For the evaluation period October 1, 2007 to September 30, 2008, Petitioner received an annual performance rating of "falling behind." On November 6, 2008, Petitioner began the PDO that had been developed by Mr. Drasheff and HR. The PDO outlined the performance concerns that Mr. Drasheff had been discussing with Petitioner throughout the previous year. When he issued the PDO, Mr. Drasheff advised Petitioner that there would be weekly review sessions during which he and Petitioner would discuss Petitioner's performance and any concerns Mr. Drasheff had with that performance. These weekly sessions replaced the less formal one-on-one sessions Mr. Drasheff had utilized during the previous year. The PDO included a 30-day review and a 60-day review with a representative from HR present to monitor Petitioner's progress. In January 2009, while still on the PDO, Petitioner caused damage to a company vehicle that Mr. Drasheff attributed to Petitioner's lack of attention. Mr. Drasheff, with the assistance of HR, issued Petitioner a counseling memorandum in connection with the accident. At the conclusion of the PDO, Mr. Drasheff concluded that Petitioner's performance while on the PDO had been inconsistent and that he should be placed on an "At Risk Plan," which was a 30-day plan to provide Petitioner a final opportunity to improve his performance. A representative of HR assisted in developing and monitoring the At Risk Plan. The development of the PDO and the subsequent development of the At Risk Plan were consistent with established WDW policies. Petitioner disputed that his performance had not satisfied the PDO and asserted that he should not have been placed on the At Risk Plan. Mr. Drasheff, in consultation with HR, determined that Petitioner's performance remained inconsistent during the At Risk Plan period. Petitioner had periods during which he performed well, but he was unable to sustain satisfactory performance. Petitioner continued to lack dependability, failed to adequately communicate with Mr. Drasheff, and did not follow through with projects as expected. There was no evidence that Petitioner's race or age was a factor in Mr. Drasheff's evaluation of Petitioner's performance. Towards the end of the At Risk Plan, Petitioner was told during a meeting with Mr. Drasheff and a representative from HR that he was not meeting expectations and that he was in danger of losing his job. Mr. Drasheff therefore recommended to his immediate supervisor and to the HR director that Petitioner's employment be terminated. While that recommendation was pending, Petitioner went on family medical leave for one or two weeks. After Mr. Drasheff had submitted his recommendation of termination to his immediate supervisor and to HR, Petitioner filed with FCHR the Charge of Discrimination dated April 1, 2009.4 Petitioner's employment with WDW was terminated when he returned from family medical leave. Mr. Drasheff followed WDW policies and procedures in supervising Petitioner. There was insufficient evidence to establish that Mr. Drasheff or any other WDW employee discriminated against Petitioner based on Petitioner's race or age. There was no evidence that Mr. Drasheff or any other WDW employee retaliated against Petitioner based on any complaint made by Petitioner regarding pay inequity or discriminatory treatment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order that dismisses Petitioner's claims of discrimination. DONE AND ENTERED this 1st day of March, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2011.
Findings Of Fact On June 6, 1977, HRS issued a Certificate of Need to Reachout for the construction of a 120 bed ICF/MR facility in Winter Garden, Florida, at an approximate cost of two million dollars. The certificate stated that its termination date was June 5, 1978, with "renewal possible only if applicant clearly demonstrates positive construction efforts." On May 8, 1978, Reachout requested a six month extension of the Certificate of Need due to delays occasioned by what Reachout termed "changing thinking" in the field of mental retardation facility planning. On May 30, 1978, HRS responded to Reachout's request by requesting documented evidence that 1) the project site had been secured, 2) firm financing for the project had been secured and 3) final construction plans had been submitted for review to HRS. In its letter of June 2, 1978, Reachout submitted its position on these three points raised by HRS. Subsequently, on June 5, 1978, HRS denied the request for extension of Certificate of Need on the grounds that documented evidence had not been submitted with regard to the three points raised. Thereupon, Reachout requested this administrative proceeding. Reachout is a general partnership organized by Mr. John M. Jenkins, Mr. William C. Demeteree and Mr. Hale Washburn. Mr. Washburn was the sole owner of the property constituting the project site and as of June 2, 1978, Reachout had agreed to finalize the purchase of the property from Mr. Washburn. Reachout was pursuing a Federal Housing and Urban Development (hereafter HUD) insured loan under Section 232 of the National Housing Act. As of the date of the request for extension of time, Reachout was in the conditional commitment stage of its financing with a tentative date of June 15, 1978, set for receiving the conditional commitment. Conditional commitment is the second stage of a three stage processing procedure which must be accomplished prior to receiving the federal funding. It was estimated that the final stage would be completed sometime during the late summer with construction beginning shortly thereafter. The processing of the HUD application was delayed some two months by virtue of HRS's failure to file a HUD form on behalf of Reachout. While the delay was necessitated because of HRS's need for legal clearance to file the form, the delay was nonetheless occasioned by HRS and not Reachout. In August, 1977, some two months after the Certificate of Need was originally issued, Reachout retained the services of Fred G. Owles as architect to design Reachout's ICF/MR. Upon assuming his employment, Mr. Owles contacted all State agencies within his knowledge that dealt with the treatment of the mentally retarded in order to secure their guidance during the design phase. On November 14, 1977, as a result of his efforts, Mr. Owles received from the Retardation Program office of HRS draft proposals of final guidelines for ICF/MR physical plant designs. Mr. Owles was advised that the draft proposals were not expected to vary significantly from the final versions to be promulgated in the future. Mr. Owles subsequently resigned as Reachout's architect because he was, in his words, totally frustrated by the absence of State design criteria for the construction of an ICF/MR facility. At the time of his resignation in the first week of March, 1978, Mr. Owles was aware that plans could be submitted in accordance with Nursing Home facility criteria, but Owles was not assured that such a design would please the Retardation Program office which, while not having licensing authority at that time, would be in a position of approving the use of Reachout's proposed facility for the transfer of State patients. Mr. Owles was advised by Ira Wagner, a medical facility's architect with the Office of Licensure and Certification in Jacksonville, that while approval would probably be forthcoming for a facility designed with standard nursing home guidelines, that did not mean that the facility would ultimately receive State patient referrals. On March 17, 1978, Reachout contracted with Mr. James Fulcher as their new architect for the ICF/MR project. Mr. Fulcher immediately began diligent efforts to incorporate the latest ideas of the Retardation Program office in the plan design for the ICF/MR facility. Five days after being retained as architect, Mr. Fulcher submitted his first schematic design to HRS. On April 14, 1978, Fulcher received a letter from HRS listing seventeen (17) items to be resolved in the first schematic design. After two more telephone calls, Fulcher, on April 27, 1978, submitted the second schematic design incorporating responses to all of the seventeen (17) comments contained in the April 14th letter. On May 12, 1978, revised plans showing additional land added to the project were delivered to HRS. On May 25, 1978, Mr. Charles Kimber, the director of the Retardation Program office of HRS advised Mr. Jenkins that the schematic plan did not express a concept consistent with their goal of placing clients in residential facilities that were non-institutional in nature and which reflected the characteristics of a home. Mr. Kimber expressed his desire for an early meeting to discuss alternative designs. As of the date of the hearing, Reachout had not received a letter of approval of its schematic design, although Ira Wagner assured Mr. Fulcher that such approval would be forthcoming. It was Mr. Fulcher's opinion that upon receipt of the letter of approval of schematic design, the preliminary drawings and the final construction plans could be submitted and construction commenced within the six month extension requested in these proceedings.
The Issue Validity of Emergency Rule 22 AER 76-1, Department of Administration. This case concerns Petitioner's challenge of the validity of Emergency Rule 22 AER 76-1, Department of Administration, State of Florida, on the ground that promulgation of the rule was an invalid exercise of delegated legislative authority. The petition specifically alleges that Respondent failed to make an adequate finding that an immediate danger to the public health, safety, or welfare warranted an emergency rule, and that there existed no such immediate danger which might have necessitated enacting an emergency rule. The petition further alleges that the procedure adopted by Respondent in promulgating the emergency rule was unfair and contrary to law. The petition was filed with the Division of Administrative Hearings on February 23, 1977, and thereafter assigned to the undersigned Hearing Officer. Prior to final hearing herein, Petitioner propounded written interrogatories and requests for admission from Respondent. The Respondent filed a "Notice of Objection" to the said interrogatories on grounds that judicial review is exclusive as to the agency's findings of immediate danger, necessity, and procedural fairness, as provided under subsection 120.54(9)(a)3, F.S., and that therefore the Hearing Officer has no jurisdiction over the matter. The parties stipulated that if Respondent's objection was resolved in favor of Petitioner, the interrogatories and answers submitted by Respondent thereto, together with supporting documents, would be admissible in evidence for all relevant purposes. For the reasons stated hereinafter in Conclusions of Law, it is determined that the Hearing Officer has jurisdiction in this case and, accordingly, the stipulated matters are accepted, as set forth below.
Findings Of Fact On April 26, 1976, the procedures for layoff of state career service employees contained in certain memoranda of the Department of Administration (DOA) and the Department of Health and Rehabilitative Services were determined to be invalid rules by a Hearing Officer of the Division of Administrative Hearings. (J. Richard Stevens v. DHRS and DOA, DOAH Case No. 75-2024R). The specific documents held to be invalid rules were Personnel, Policy and Procedure Memorandum No. 74-7, Subject: Guidelines for Preparing Layoff Procedures, issued by the DOA, and Directive No. 8.07, Dept. of HRS, Subject "Layoff and Reemployment of Personnel." The DOA procedures were effective on July 1, 1974, and implemented Rule 22A-7.10(H)(3), Florida Administrative Code. On May 25, 1976, the First District Court of Appeal denied a motion of the DOA for a stay of the Hearing Officer's Final Order (Case No. CC-101). However, the Hearing Officer granted a stay of his Final Order until June 21, 1976. On April 6, 1977, the First District Court of Appeal upheld the Final Order of the Hearing Officer in the Stevens case (Case No. CC-101,156.) A 1976 amendment of subsection 110.061(2)(a), required specified layoff procedures to be developed by Respondent. (Chapter 76-116, Laws of Florida) Federal standards for a merit system of personnel administration affecting all state agencies receiving federal grant-in-aid funds that were in effect in 1976 require the establishment of certain procedures for layoff of permanent state employees. (Testimony of Dean, Attachment 5 to Respondent's memorandum) Respondent's personnel officers were aware that there was impending legislation to abolish some 2,000 state employee positions, effective June 30, 1976, that would require the existence of layoff criteria and procedures for orderly and fair implementation (Testimony of Dean). In view of the foregoing, DOA,during the latter part of May and early June, 1976, began the process of formulating and adopting an emergency rule to cover layoff procedures. Although consideration was given to the possibility of following normal rule-making procedures, it was determined that there was insufficient time available to promulgate a rule in that manner. (Testimony of Dean) Notice of the proposed emergency rule was prepared and published in the June 11, 1976, issue of the Florida Administrative Weekly. The notice stated that the rule would become effective upon filing with the Secretary of State, and that a copy could be obtained by writing to the state personnel director. It provided in part as follows: "SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO PUBLIC HEALTH, SAFETY AND WELFARE: Recent changes in law have cast doubt upon the proper current Career Service layoff procedure. Because numerous layoffs may be required before a permanent rule could become effective, it is essential to the welfare of the State that all doubt be removed by adoption of a definite procedure, both for the benefit of the State as employer and of the affected employees. REASONS WHY PROCEDURE USED IS FAIR UNDER THE CIRCUMSTANCES: The emergency rule is based on the recommendations of the Career Service Commission contained in its report of November 7, 1975, following public hearings October 23 and 24, 1975, incorporating any applicable guidelines approved by the Secretary of Administration." The proposed emergency rule was placed on the agenda of the Administration Commission for June 15, 1976, and, after discussion, the rule was amended and adopted by that body. On the same date, the emergency rule was filed with the Department of State. (Composite Exhibit 1a-d, Exhibit 2) By letter of June 16, 1976, Petitioner was informed by the personnel officer of the Department of Agriculture and Consumer Services that his position of Agriculture Investigator Supervisor in the Division of Animal Industry had been abolished, effective June 30, 1976, and that, in accordance with Department of Administration Emergency Rule No. 22 AER 76-1, he was being notified of the proposed action. Pursuant to that notification, Petitioner was laid off as of June 30, 1976. He thereafter filed an appeal with the Career Service Commission on July 7, 1976. (Testimony of Shelby, Exhibits 3, 4)
The Issue The issue for determination is whether Petitioner successfully completed the Minimum Standards Practical Examination for Retention of Firefighter Certification Retest.
Findings Of Fact Petitioner was certified as a Florida firefighter by Respondent on June 27, 1991, being issued certificate number C- 62497. During the period 1991 through 1994, Petitioner was not active as a firefighter, either in a paid or volunteer role. He maintained his certification by completion of a 40-hour continuing education class in vehicle extrication in 1994. During the period 1994 through 2000, Petitioner was not active as a firefighter, either in a paid or volunteer role. His primary income was derived from being a painting contractor. Effective July 1995, Florida's law, regarding certification of firefighters, changed to require firefighters to take and pass the Examination when they have not been active as a firefighter, either paid or as a volunteer, for a period of three years. The Florida law was Section 633.352, Florida Statutes. As a result, in order for Petitioner to retain his certification, he was required to take the Examination. On September 8, 2000, Petitioner made application to take the Examination, which consisted of four areas--SCBA, Hose Operations, Ladder Operations, and Fireground Skills. Petitioner's primary preparation for the Examination was a private refresher course offered by the Marion County School Board. The refresher course consisted of a 24-hour class, spread over three days. The refresher course reviewed the four areas on the Examination. During the refresher course, approximately 20 hours were devoted to practicing the four areas. As to practicing the SCBA skill, under the supervision of an instructor, two to three hours on the first day were devoted to timed conditions and one to two hours on the second and third day were devoted to timed conditions. The instructor of the course taught and explained to the attendees, including Petitioner, that time was an issue in the Examination and that completing the timed skills within the maximum time allotted is pass/fail. On September 25, 2000, Petitioner took the Examination. None of the candidates taking the Examination were identified by name but were given numbers for identification. Prior to March 1, 2000, the scoring system for the Examination consisted of initially giving each candidate 100 points and thereafter, subtracting points for things done incorrectly. On and after March 1, 2000, the scoring system changed and consisted of each candidate starting with zero points and being awarded points for things done correctly. Three of the four skilled areas on the Examination were being timed. The timed skills were SCBA, Hose Operations, and Ladder Operations and mandatory steps existed for each skill. Each mandatory step for each skill was required to be successfully completed and, if not, the candidate received an automatic failing score for the skill. Examiners for the Examination, during orientation, reviewed the timed skills with the candidates and explained the grading for each of the skills. Furthermore, the examiners explained to the candidates that time was pass/fail for the SCBA and the Ladder Operations skills. The minimum score required to pass the Examination was 70 on each of the four skills. Petitioner received a score of zero on each of the SCBA and the Ladder Operations skills, which was failing for both. The maximum time allotted for SCBA was one minute and forty-five seconds, but Petitioner took one minute and fifty seconds; and for Ladder Operations was two minutes and forty-five seconds, but Petitioner took three minutes and twenty-five seconds. Petitioner exceeded the maximum time allotted for both skills. On November 29, 2000, Petitioner took the Examination Retest. He was only required to re-take the SCBA and the Ladder Operations skills; both again being timed. For the Examination Retest, Petitioner did not take a refresher course. He arrived at the Examination Retest early and was present for the orientation given by the examiners. Again, during the orientation, the examiners reviewed the timed skill with the candidates and explained the grading for each of the skills. Furthermore, the examiners again explained to the candidates that time was pass/fail on SCBA and Ladder Operations. On the Examination Retest, Petitioner passed the Ladder Operations skill. However, Petitioner failed the SCBA skill, having received a score of zero. The maximum time allotted for SCBA was one minute and forty-five seconds, but Petitioner took two minutes and twenty-six seconds. Petitioner exceeded the maximum time allotted for the SCBA skill. By letter dated December 7, 2000, Respondent notified Petitioner, among other things, that he had not successfully completed the Examination Retest and that, therefore, his application to retain his certification was denied. Applicants for retention of their certification are permitted to take the Examination Retest only once. An applicant for retention of certification, who fails the Examination and the Examination Retest, must take and successfully complete the Minimum Standards Course before being allowed to take the Examination again. Having unsuccessfully completed the Examination Retest, Petitioner cannot take the Examination again until he takes and successfully completes the Minimum Standards Course.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order finding that Jeffrey M. Williams is not entitled to retention of his firefighter certification and that his certification has expired. DONE AND ENTERED this 15th day of June, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 15th day of June, 2001. COPIES FURNISHED: Jeffrey M. Williams 3241 Arthur Street Hollywood, Florida 33021 James Morrison, Esquire Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue Whether Respondent, Department of Transportation’s (“DOT”), notice of intent to award a contract to Intervenor, Blue Ray’z Heating and Air Conditioning, LLC (“Blue”), for maintenance, repair, installation, and replacement of heating, ventilation, and air conditioning (“HVAC”) equipment and components located at various facilities along Florida’s Turnpike System, is contrary to DOT’s governing statutes, rules, or the bid specifications, and contrary to competition, clearly erroneous, or arbitrary and capricious.
Findings Of Fact DOT is an agency of the state of Florida tasked with procuring the construction of all roads designated as part of the State Highway System, the State Park Road System, or any roads placed under DOT’s supervision by law. On March 10, 2017, DOT published its bid solicitation for ITB-DOT-16/17-8017-AC (the “ITB”), seeking bids from contractors for maintenance, repair, installation, and replacement of HVAC equipment and components at various facilities along Florida’s Turnpike (SR 91) milepost 172.0 to milepost 312.0; Southern Connector (SR 417) milepost 0.0 to milepost 6.5; Beachline Expressway (SR 528) milepost 0.0 to milepost 8.4; Seminole Expressway (SR 417) milepost 37.7 to milepost 55.0; and Daniel Webster Western Beltway (SR 429) milepost 0.9 to milepost 11.0. The scope of work of the ITB requires all labor, materials, and incidentals necessary to provide maintenance and repair of 232 HVAC units located at 65 facilities along Florida’s Turnpike System. The contract is for one year, with three one- year renewal periods. The 65 facilities span the distance from Wildwood in the north at milepost 304 to past Yeehaw Junction in the south to milepost 172, and from a westernmost point on State Road 429 at milepost 11 (Orlando area) to the easternmost section of State Road 417. Under the ITB, the vendor is required to conduct bimonthly preventative maintenance services on each HVAC unit; a total of five visits per site, per year. The vendor is also required during the first month of the contract and any subsequent annual renewal periods to conduct one annual preventative maintenance service. The annual maintenance is typically more extensive than the 60-day maintenance. However, the bi-monthly and annual maintenance services require, on average, 30 minutes for each of the 232 HVAC units. The vendor is also required to provide unscheduled, emergency services to diagnose problems and make necessary repairs of units that are not operating properly. An unscheduled repair could take several hours to complete, and there have been occasions where more than one unit needed a repair at the same time. The vendor must be available 24 hours a day, seven days a week, 52 weeks a year, to provide unscheduled, emergency services. Most air conditioning work is treated as an emergency, which requires the vendor to respond within three hours. The ITB includes specifications, schedules, a list of facilities, and other materials. Section 9.1 of the ITB requires bidders to meet certain minimum qualifications, including demonstrating the experience necessary to satisfactorily perform the services within the scope of work. Of particular relevance to the instant case is the following language on page 12 of the ITB: Certification of Experience The organized business enterprise (e.g. corporation, LLC or sole proprietorship) shall have been licensed and actively involved in the type of business requested for a minimum of three (3) years. Prior experience shall specifically be related to HVAC maintenance, repair, installation and replacement services of commercial facilities similar in size, technical scope, and volume of work to that specified in the Scope of Work for this Contract. Submit documentation of the work experience with the bid package. Pursuant to section 9.2, “[f]ailure by the bidder to provide the above item(s) will constitute a non-responsive determination. Bids found to be non-responsive will not be considered.” The Certification of Experience requirement is also referenced on page 2 of the ITB, followed by this statement: “The Department will review carefully to determine if the Vendor is responsive, responsible and qualified in the area of work contemplated by this Contract.” A two-page “Certification of Experience Documentation” form is located on pages 23 and 24 of the ITB. The form reiterates, in pertinent part: Prior experience shall specifically be related to the technical scope and volume of work to that specified in the scope of work for this Contract. Submit documentation of the work experience with the bid package. The Department will review carefully to determine if the Vendor(s) is responsive, responsible and qualified in the area of work contemplated by this Contract. Describe your work experience in detail for the minimum period required, beginning with your current or most recent project. Use a separate block to describe each project. (Print out additional copies of the form or attach additional sheets as necessary.) The form includes many lines, spaces, and separate blocks for bidders to provide the client names, addresses, and telephone numbers; dates of service; dollar value of each project; client project manager for each project; and a description of each project. The form includes enough lines and spaces for bidders to provide the required information for up to seven clients. The bidders are directed to attach additional sheets as necessary. The deadline for submission of bids was Tuesday, April 4, 2017, at 2:30 p.m. On April 4, 2017, DOT received and opened bids from four vendors in response to the ITB, which revealed the following bid tabulation prices: (1) All Seasons ($158,446.00); (2) Blue ($128,630.00); (3) Kenyon & Partners, LLC ($279,183.00); and (4) Florida Drawbridges, Inc. ($331,183.00). On April 4, 2017, DOT posted a notice of intent to award the contract for the work described in the ITB to Blue. Notwithstanding the requirement for each bidder to demonstrate prior experience “specifically . . . related to HVAC maintenance, repair, installation and replacement services of commercial facilities similar in size, technical scope, and volume of work to that specified in the Scope of Work for this Contract,” Blue failed to demonstrate such experience in the Certification of Experience Documentation form. The first client listed on Blue’s Certification of Experience Documentation form is the Florida Department of Juvenile Justice (“DJJ”). With regard to this client, Blue indicated service dates of June 2015 to present and a project dollar value of $5,000.00 per year. As to the project description, Blue stated: “Provide HVAC Maintenance, Repair & Service @ Orange Regional Juvenile Detention Center.” At hearing, Mr. Davis, the sole owner and operator of Blue, conceded the work involved a total of only 12 HVAC units, in two DJJ buildings, and at the same location. The second client listed is Florida Environmental Compliance Corp. (“FECC”). With regard to this client, Blue indicated service dates of 2012 to present and no dollar value for the project was provided. As to the project description, Blue stated: “HVAC Maintenance, Repair & Service. Installation.” At hearing, Mr. Davis conceded the work for FECC involved a total of only eight HVAC units at two locations (Polk County–two units, and Orlando-six units). The third client listed is DOT. With regard to this client, Blue indicated service dates of July through August 2015, and the dollar value of the project was $21,300.00. As to the project description, Blue stated: “Installation of Recorder Room Ductless split system.” At hearing, Mr. Davis conceded the work for DOT involved the installation of only three HVAC units in three locations at a cost of $7,100.00 each. The fourth client listed is CVS. With regard to this client, Blue indicated service dates of July through August 2014, and the dollar value of the project was $17,000.00. As to the project description, Blue stated: “Installation of Mini split system in CVS store clinics.” At hearing, Mr. Davis conceded the work for CVS involved the installation of only two HVAC units at one store location.2/ DOT did not review Blue’s Certification of Experience Documentation form to determine whether Blue demonstrated the necessary qualifications and experience required by the ITB. At hearing, none of the witnesses presented by DOT could testify as to Blue’s demonstration of prior experience, specifically related to HVAC maintenance, repair, installation, and replacement services of commercial facilities similar in size, technical scope, and volume of work to that specified in the scope of work. Leonard Robinson, a contract manager for Jacobs Engineering, the consultant for the project, testified he was involved only “to a very small extent” in the review of Blue’s bid. Mr. Robinson testified that “the only thing I had to do was to award the bid per the lowest bidder as written in the contract and state the reason why I’m doing so and also sign the Conflict of Interest form. That is it.” Mr. Robinson did not review Blue’s qualifications or past experience, and he could not say that Blue could perform the work described in the ITB. Alan Chua is the capital improvement procurement administrator for Jacobs Engineering. Mr. Chua evaluated Blue’s bid to determine whether it corresponded to the engineer’s estimate. He testified he reviewed the Certification of Experience Documentation form, but only as to the dates and to the limited extent necessary to determine whether the projects listed by Blue satisfied the three years of experience required by the contract. Mr. Chua conceded he did not review the project descriptions for the four referenced clients identified on the form, and he could not say whether any of the four projects identified on the form were similar in volume or technical scope to that specified in the ITB. Trisa Thomas is a contracts development manager for Jacobs Engineering. Ms. Thomas testified she reviewed the Certification Experience Documentation form. Ms. Thomas testified she reviewed the dates to determine whether the projects listed by Blue satisfied the three years or more of experience required by the contract. She further testified she reviewed the dates, project manager, and project descriptions. As to the project descriptions, Ms. Thomas testified she reviewed the type of work Blue did for the company to see if it was related to the work specified in the ITB. However, she did not consider the volume of Blue’s work. Significantly, Ms. Thomas testified: Q: Okay. All right. Do you know why the dollar value of the project is on the Certification of Experience Documentation? A: Just to get an idea what they--how much they probably performed. Q: So would that help you get an idea of the volume of work that they performed for that client? A: I’m not even really sure if that played a factor. Q: And when you say, I’m not sure if that played a factor, what--what are you referring to? A: Well I guess what I’m saying is, I’m-- that’s really not where my concentration is. I’m looking at the years, the project description, what they--the type of work they performed for the--for that agency, and if the references are credible or, you know, satisfactory. Q: Okay. And when you say they’re satisfactory, what do you look at to determine if they’re satisfactory? A: Based on the service that they provided to them, the vendor will let us know how pleased they were with the work that they provided to their agency. Q: All right. Looking at this Joint Exhibit 5, pages 5 and 6, which places did Blue Ray’z perform HVAC maintenance, repair, installation and repair services that were of the same technical scope as the Invitation to Bid? A: I see on the Certification of Experience where they provided HVAC repair and service installation. Also I see where they provided installation of a recorder room. But the volume, there’s--I don’t--I wouldn’t be able to determine that. Q: And let me ask my question again. So which places did Blue Ray’z perform HVAC maintenance, repair, installation and replacement services that were of the similar technical scope? A: I don’t know. Q: What maintenance, repair and installation or replacement services did Blue Ray’z provide to another vendor that was similar to the volume of work specified in the Invitation to Bid? A: The volume work? I don’t know. Q: Do you know if the bid by Blue Ray’z was reviewed by anybody to determine if the experience was similar in size, technical scope and volume of work specified in the Scope of Work? A: I don’t know. Tr., Vol. I, pp. 121-123. Santiago Alvarez is the facilities and telecommunications administrator for the Turnpike Enterprise, which is part of DOT. Mr. Alvarez testified he did not review the Certification of Experience Documentation form in any detail. He just looked to confirm the documents were included in the bid package. Sheree Merting is the contract services administrator for DOT’s Turnpike Enterprise. Ms. Merting testified she was not involved in the evaluation of Blue’s bid. Amanda Cruz is a contract analyst for DOT. She did not review Blue’s bid to determine whether Blue was qualified by having the experience required by the ITB. DOT established specific requirements for the ITB to determine responsiveness and then failed to determine if Blue had prior work experience specifically related to HVAC maintenance, repair, installation, and replacement services of commercial facilities similar in size, technical scope, and volume of work to that specified in the scope of work. DOT awarded the bid to Blue because it was the lowest bidder, without considering whether Blue demonstrated prior experience specifically related to HVAC maintenance, repair, installation, and replacement services of commercial facilities similar in size, technical scope, and volume of work to that specified in the scope of work. DOT awarded the bid to Blue because it was the lowest bidder, even though Blue failed to demonstrate in the Certification of Experience Documentation form that it had prior experience specifically related to HVAC maintenance, repair, installation, and replacement services of commercial facilities similar in size, technical scope, and volume of work to that specified in the scope of work. In sum, Blue is not a responsive and responsible vendor, and DOT’s proposed action is contrary to the bid specifications, clearly erroneous, contrary to competition, arbitrary and capricious.3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Transportation, enter a final order rescinding the proposed award to Intervenor, Blue Ray’z Heating and Air Conditioning, LLC. DONE AND ENTERED this 28th day of August, 2017, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2017.
Findings Of Fact In order for the Petitioner to obtain his license as a building contractor in Florida, he is required to successfully complete a certification examination which consists of three tests. The examination is prepared by the ACSI National Assessment Institute and administered by the Department of Professional Regulation. The June 1987, examination involved a new format, new scoring methods, and areas of competency which had not been tested in previous exams. A post examination report prepared by the Office of Examination Services of the Department of Professional Regulation reveals that, while forty seven per cent of the examinees passed at least one part of the examination, only seven per cent passed the entire examination. Historically, pass rates for previous examinations ranged from thirty five to fifty five per cent. The reasons given for the low pass rate on this particular exam by the Office of Examination Services were: 1) Candidates are currently required to demonstrate competency in each of the three content areas. If the exam was graded in the same manner as the grading method used in prior exams (compensatory scoring), the pass rate would have increased to twenty one per cent in this examination. 2) Whenever an examination is significantly changed, the performance of the candidates will decrease until they prepare for the demands of the new examination. 3) There appeared to be a time problem. Many of the candidates did not timely complete the answers to all of the questions in the second and third test. The Petitioner was not prepared for the new format. The review course taken by him shortly before the exam did not alert him to the changes approved by the Board. As a reexamination candidate, his expectations as to exam content were even more entrenched than those of first time candidates. The Petitioner failed all three tests in the exam. A review of the Petitioner's score sheets on all three tests reveal that he timely completed all of the answers, so the time problem does not appear to have affected his results. If the compensatory scoring method had been used on this exam, as it had been in prior exams, the Petitioner would still not have passed the examination administered in June 1987. The Petitioner did not demonstrate that the Respondent failed to follow standard procedures for conducting or grading the examination. The Petitioner was not treated differently from other candidates who took the examination. Although the content in this exam was different than the preceding exam, the content of the exam had been properly promulgated in Rule 21E-16.001, Florida Administrative Code, as amended May 3, 1987. The Respondent has agreed to allow the Petitioner the opportunity to take the next scheduled examination, without charge.
Findings Of Fact Prior to March 9, 1983, Petitioner had been employed by Respondent for a period of approximately 13 years. On March 9, 1983, Petitioner was serving as Superintendent of Respondent's West Palm Beach Field Station, a position which required that he supervise some 88 of Respondent's employees. By memorandum dated March 9, 1983, Petitioner was terminated from his position with Respondent by virtue of Respondent's contention that he discharged his responsibilities in an unsatisfactory manner. In the memorandum of March 9, 1983, Petitioner was advised that he had been advised of the shortcomings leading to his discharge in performance reviews conducted pursuant to Respondent's Merit Review Program from as early as April 1977, through October of 1982. Respondent's Merit Review Program, which was in effect at the time of Petitioner's termination, "...establishes policies and procedures for evaluating and recognizing employee performance This policy....applies to all District employees filling a permanent position The program establishes a procedure whereby Respondent's employees are evaluated twice yearly to determine their level of performance and to make salary adjustments. There is no provision in the Merit Review Program for either disciplining or discharging a District employee as a result of performance reviews conducted pursuant to the policy. The Merit Review Program establishes six types of merit reviews, which include normal, interim, initial probation, proportional, positional probation, and special probation. Supervisory personnel conducting reviews are required to follow specific procedures within each of these categories. In addition to the six categories of merit reviews, the Merit Review Program establishes a complex and mandatory evaluation procedure for supervisors conducting reviews. The program also establishes a mandatory appeal procedure should an employee disagree with his rating. Evaluation factors utilized in the program are defined and established from "outstanding" performance to "unacceptable" performance. The program establishes specific performance categories including planning, organization, coordination, administration, control, human relations, knowledge of work, leadership, dependability, communications skills, efficiency, judgment, performance skills, initiative, cooperation, and job knowledge. Effective July 18, 1982, Respondent effectuated a Corrective Action Policy for resolving performance problems and violation of Respondent's rules of conduct. This policy categorizes unsatisfactory behavior, divides disciplinary action into four categories according to the Seriousness of the offense, and establishes penalties ranging from verbal warnings for less serious offenses to termination of employment for more serious violations. This policy is not challenged in this proceeding. The Merit Review Program, which is the subject matter of this proceeding, provides a procedure whereby employees may appeal the result of a merit review within five days of receipt of their copy of the Merit Review Form should they disagree with the contents of that review. Although Petitioner had received merit review ratings for at least seven years prior to the date of final hearing in this cause, there is no evidence that he ever appealed any such evaluation. Although it is undisputed that Respondent did not comply with the rulemaking procedures established In Section 120.54, Florida Statutes, prior to adoption of the Merit Review Program, it is equally clear that results from the Merit Review Program in this case were used solely to document Petitioners performance problems for purposes of applying Respondent's Corrective Action Policy, thereby resulting in Petitioner's discharge from employment
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department, an executive agency of the State of Florida, is an employer as that term is defined in Section 760.01(6), Florida Statutes. Vickers is a black male who at all times material to this proceeding was employed by the Department. Vickers was first hired as a COI at the Mayo Correctional Institution, Lafayette County, Florida, on or about October 30, 1987, and transferred to the Madison Correctional Institution, Madison County, Florida, on or about February 19, 1988. At all times material to this proceeding, Vickers held permanent status within the Career Service System, enacted and authorized under the laws of Florida. On April 28, 1989, Vickers was promoted from COI in food service to COII in food service. Vickers was placed on a nine-month probationary status insofar as the promotion was concerned. Vickers was selected for this promotion over two other white candidates. The interview team consisted of Eric Holt, Cathy Leggett and Aubrey Dean. Then-Superintendent, Terry Hicks selected Vickers for the promotion on the recommendation of the review committee. In the position of COII in food service, Vickers was responsible for supervising staff and inmates in the preparation of food at the Madison Correctional Institution. Vickers would supervise as many as three correctional officers and as many as 20-30inmates. Among those under Vicker's supervision was COI, Janice Lingenfelter and inmate Jeffery Lausin. On or about August 15, 1989, Lingenfelter made a complaint to COII Nellie Cunningham that Vickers had been sexually harassing her. Lingenfelter then made a written complaint to Hicks, who then requested that an inspector from the Department's Inspector General's Office be assigned to investigate the allegations. CO Inspector II William Dotson was assigned to investigate the allegations made by Lingenfelter. Dotson began his investigation on August 17, 1989, by interviewing several witnesses including Lingenfelter, Cunningham, Lausin and Vickers. Dotson's investigative report was completed and sent for review to the Inspector General of the Department on October 3, 1989. It was determined through Dotson's investigation that there was evidence to support Lingenfelter's claim of sexual harassment against Vickers and a failure by Vickers to maintain a professional relationship with staff and inmates under his supervision. Dotson's report was sent to Hicks at Madison Correctional Institution sometime between October 4, 1989 and November 1, 1989. By letter dated November 1, 1989, Vickers was notified that disciplinary charges were being brought against him for violating certain Department rules pertaining to sexual harassment and failure to maintain a professional relationship with inmates under his supervision. That letter, signed by Hicks, also advised Vickers of his right to request a conference, prior to any final action being taken, at which he could present evidence to refute or explain the charges against him. Vickers requested and was given a conference held on November 28, 1989. At that conference, Vickers was represented by counsel and presented a statement to Hicks regarding the charges against him. Vickers was notified by letter dated December 6, 1989 that he would be suspended for five days without pay for his violation of the rules cited in the charging letter of November 1, 1989. On or about August 18, 1989, Vickers was reassigned from food service to security. Hicks made this reassignment due to the investigation into allegations of sexual harassment against Vickers which had originated in food service. After reviewing Dotson's investigative report, and after hearing Vickers' response to the charges against him, Hicks made the decision to demote from COII to COI. The demotion was effective December 15, 1989. At the time of the demotion, Vickers was in probationary status as a COII. Hicks determined that Vickers had exhibited an inability to properly supervise the inmates and staff under his supervision. An inmate in food service had patted a female correctional officer in food service (Lingenfelter) on the buttocks. Hicks attributed this lack of discipline on the part of the inmate to poor supervision by Vickers. On or about December 15, 1989, Vickers was given a below standards performance appraisal written by Eric Holt, his supervisor. On the front of the appraisal was the indication that it was a probationary appraisal. Personnel Manager Leggett told Hicks that it should be a special performance appraisal rather than probationary, but Hicks did not change the appraisal prior to giving it to Vickers. This performance appraisal was incorrectly titled "probationary" rather than "special", and later determined to be invalid. Vickers was not given an annual performance appraisal on his anniversary date (October 30, 1989) because he was in a probationary status. While the failure to give a timely and appropriate employee performance appraisal may be a violation of the Career Service System Rules, Chapter 22A-9, Florida Administrative Code, this not would prohibit the Department from demoting an employee who is on probationary status because of a promotion, if there were legitimate, nondiscriminatory reasons for the demotion. Vickers has never received a Performance Appraisal wherein he was rated at less than an "Achieves Level", other than the Performance Appraisal entitled "probationary" which was later determined to be invalid for reasons other than the rating of Vickers' performance. Vickers appealed his suspension and demotion to the Public Employees Relations Commission (PERC). A hearing was held, since it was determined that PERC did have jurisdiction to review Vicker's suspension but not his demotion. Under the personnel rules governing state employees, a person who is in probationary status in a class may not appeal his or her demotion from that class. After hearing and weighing the evidence and argument of both parties, the Hearing Officer entered a Recommended Order dated March 2, 1990 wherein it was found that the Department had proven the charges against Vickers by a preponderance of the evidence, and therefore, just cause existed for discipline. The Hearing Officer also determined that the five-day suspension should not be reduced, specifically citing the seriousness of the offense as it related to his duties and responsibilities. A Final Order was issued by PERC on May 2, 1990 adopting the Hearing Officer's Recommended Order in its entirety and dismissing Vicker's appeal. Approximately January 3, 1990, interviews were held to fill the position of COII in food service from which Vickers had been demoted. Of the eleven applicants, two were black males, one was a black female, five were white males, and three were white females. One of the black males cancelled his interview, while the other "declined F.S." (food service). The black female was promoted to a position with the Hamilton Correctional Institution. Larry Pickels, a qualified white male, was selected for the position. Neither the "invalid Performance Appraisal" nor Hick's decision to demote Vickers were motivated by Vickers' race or sex, to wit: black and male. The Department has produced sufficient admissible evidence to show that it had a legitimate, nondiscriminatory reason for demoting Vickers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, recommended that the Commission enter a Final Order finding that Petitioner, Curtis Vickers, was not demoted due to his race or sex in violation of Section 760.10, Florida Statute, and that the Petition for Relief be dismissed. RECOMMENDED this 19th day of February, 1992, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 day of February, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5279 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings On Proposed Findings Of Fact Submitted by the Petitioner The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the finding(s) of fact which so adopts the proposed finding(s) of fact: 1(1); 2(2,3); 3(4); 4(14); 5(2,19); 6(11); 7(7,18); 8(7); 11(10); 12(17); 13-14(16); 15-16(15); 18(14); 19(12); 20-21(14); 27(7,8); 31(16). Proposed findings of fact 9 and 10 are a restatement of testimony rather than a finding of fact, but see Finding of Fact 8. Proposed findings of fact 17, 28 and 32 are unnecessary. Proposed findings of fact 22-26, and 33 are neither material nor relevant. Proposed findings of fact 29 and 30 are more in the way of an argument than findings of fact. Proposed finding of fact 34 is neither material nor relevant, unless it is shown that Vikers' demotion was discriminatorily movitated. Specific Rulings On Proposed Findings Of Fact Submitted by the Respondent 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number inparenthesis is the finding(s) of fact which so adopts the proposed finding(s) of fact: 1(2); 2(4,5); 3-14(6,7,8,9,10, 11,12,13,14,17,18 and 19, respectively). COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esquire General Counsel 325 John Knox Road Building F, Suite 240 Tallahssee, FL 32399-1570 Gary L. Asbell, Esquire McMurry & Asbell 1357 East Lafayette Street Suite C Tallahassee, FL 32301 Harry K. Singletary, Jr. Secretary Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500 Ernest L. Reddick, Esquire Assistant General Counsel Florida Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500
The Issue Whether the Respondents' decision to rank the Intervenor, Turner Construction Company (Turner) first for purposes of entering into contract negotiations was clearly erroneous, arbitrary, capricious, or contrary to competition as alleged by the Petitioner, PCL/Centex Rooney, a joint venture comprised of PCL Civil Contractors, Inc. and Centex Rooney Construction Company, Inc. (PCL/Centex or Petitioner).
Findings Of Fact Prior to December of 2000, the Department of Transportation and the Department of Management Services entered into negotiations whereby DMS would assist the Department by providing project management services for a program known as the Miami Intermodal Center to be located in Miami, Florida. DMS was to assist the Department in securing a Construction Manager-at-Risk (CMAR) for the project. On December 26, 2000, the Department and DMS entered into an agreement that more fully detailed the terms of how DMS would assist in the procurement of the CMAR. Article 4 of the agreement specified that the Department would be considered the owner of the project and that all payments to any "architects, engineers, contractors, etc., will be paid under the control of The Florida Department of Transportation." Additionally, such section provided that all payments "under this contract, as prescribed hereinabove, will be made by The Florida Department of Transportation." The agreement authorized DMS to assist with agreements for architects, engineers, contractors, etc. and recognized DMS forms and procedures for the design, bidding and construction of the project. The complete agreement is identified as Exhibit 4 in this record. After entering the agreement, employees of DMS met with members of the Department's MIC Management Group to coordinate efforts on the procurement of a CMAR for the MIC project. DMS in concert with the Department developed the guidelines for the project, and on January 29, 2001, the Department of Management Services and the Department of Transportation issued a Corrected Legal Notice advertising a Request for Statements of Qualifications for the MIC CMAR. On February 14, 2001, the MIC management group held a meeting for prospective bidders to present information about the Statement of Qualifications. Seven firms responded to the invitation to submit Statements of Qualifications. Those entities were identified on or about March 6, 2001. Thereafter, the seven applicants were "short-listed" and four were selected to continue in the process. The short- listing review did not rank the applicants. The purpose of reviewing the qualifications at that time was to merely cull the group of applicants down to those most able to continue the process toward selection. Had only four applicants applied, most likely all would have proceeded to the next round of review. The Petitioner and Intervenor were two of the four entities that progressed to the next level. All four were invited to an information meeting on April 6, 2001. At that time the MIC management group made a Power Point presentation concerning the next phase of the selection process. The MIC management group explained the technical review process and were available to respond to any questions that the applicants might raise. Subsequently, each applicant was to provide a written technical proposal and was to give an oral presentation before the technical review committee (TRC). The written technical proposals from the four entities were due May 1, 2001. The Petitioner and Intervenor timely filed technical responses. The sufficiency of the Intervenor's technical response and oral presentation is not at issue. Instead, the Petitioner maintains that the score from the short-listing process should be averaged with the technical response score to achieve an overall ranking. That average was not done. Subsequent to the four oral presentations from the short-listed applicants, the TRC met for deliberations and ranked the entities based upon the technical responses and the oral presentations. The TRC did not have the authority to make the final selection. In fact, the TRC recommended their rankings to the selection committee. The selection committee met on May 31, 2001, to consider the recommendation of the TRC and selected the Intervenor as the first ranked applicant. Thereafter, the Petitioner timely filed the instant challenge to the selection. Turner Construction Company moved to intervene in the protest and by order entered June 22, 2001, was granted intervention in this case. When efforts to settle the dispute proved unsuccessful, the matter was forwarded to the Division of Administrative Hearings for formal proceedings on July 10, 2001. The RFQ in this case was developed by, and with the cooperation of, personnel from both the Department and DMS. It provided that the policies and procedures of DMS and the Department would apply in the selection process for the MIC CMAR. More specifically, the RFQ provided at page 1: Pursuant to policies and procedures of the State of Florida Department of Management Services and the Florida Department of Transportation statements of qualifications (SOQs) for Construction Management-At-Risk services for the Miami Intermodal Center (MIC) Program will be received at the Miami Intermodal Center Project Office 3910 NW22nd Street, Miami, Florida 33142, until 4:00 P.M. Eastern Standard Time, on Tuesday, March 6, 2001. * * * Beginning Monday, January 29, 2001, a "Request for Statements of Qualifications" will be available free of charge at the reception desk, Miami Intermodal Center Project Office 3910 NW22nd Street, Miami, Florida 33142. This package outlines the scope of the program, the SOQ format, evaluation criteria, submittal instructions, a description of the selection process and general project information. * * * Proposers are encouraged to bring all questions concerning this Request for Statements of Qualifications to the informational meeting. Page 2, Section 1.0 of the RFQ, provided, in pertinent part: The Florida Department of Transportation (FDOT) and State of Florida Department of Management Services (FDMS) jointly intend to select a construction manager-at-risk (Construction Manager) to provide pre- construction services and construction management-at-risk services for the construction of facilities and roadways constituting the Miami Intermodal Center Five Year Work Program. Pursuant to an agreement between FDOT and FDMS dated December 26, 2000, the selection process will be conducted pursuant to the policies and procedures of FDMS. FDOT may contract with the Construction Manager through FDMS and FDMS may provide certain owner representation on behalf of FDOT during the construction process. Therefore, references in this RFQ to FDOT shall also include FDMS when acting as a representative for FDOT. The selection process for the CMAR was set forth in Section 4, page 9 of the RFQ. That provision stated: The selection of the Construction Manager shall be based upon the qualifications and experience of Proposers as reflected in the statement of qualifications and the technical proposals and oral presentations of short-listed Proposers. The selection process will be a two-phase process. In the first phase, SOQs will be submitted for review and evaluated based on the evaluation criteria identified in Section 5. The most highly qualified Proposers will be short-listed and invited to submit technical proposals and provide oral presentations with the final ranking made in accordance with criteria generally described in Section 6. The Petitioner did not dispute the criteria to be used to evaluate the proposals. The Petitioner did not seek an explanation of the foregoing section of the RFQ and did not dispute the language of the section. Similarly, the Petitioner did not dispute the language of Section 5 that set forth the process to be used for short-listing the proposers. Section 6 was entitled "TECHNICAL PROPOSALS, ORAL PRESENTATIONS AND FINAL SELECTION." That section provided, in pertinent part: Upon completion of the short-listing, each of the Proposers selected on the shortlist will be invited to prepare a technical proposal and make an oral presentation to the Technical Review Committee. * * * All short-listed Proposers will be required to attend a presentation of the Program by the Program Manager on March 22, 2001. The presentation will provide detailed information regarding the design as generated to date and will answer any questions from short-listed firms. * * * FINAL SELECTION CRITERIA Following the technical proposals and oral presentations, the Proposers will be ranked by the Technical Review Committee based on the following criteria: Understanding of the Program and Requirements- * * * Approach and Method- * * * Ability to Provide Services- * * * The Technical Review Committee will rank short listed Proposers after all the presentations and interviews have been completed. The recommendations of the Technical Review Committee will be presented to the Selection Committee, which, will determine the official ranking of the Proposers. The RFQ did not require that scores from the short- listing process be averaged with the technical presentation phase. In fact, there were no scores from the short-listing process; the short-listed entities were identified in alphabetical order. If an averaging of scores was the Petitioner's understanding of the DMS policy or practice, the Petitioner did not request clarification to confirm such procedure during the time to pose questions to the MIC project manager. Neither the Intervenor nor the fourth ranked proposer understood the RFQ to require an averaging of scores. No one from DMS or the Department contemplated that the instant RFQ would be "scored" on a numerical basis. DMS and the Department had agreed that the recommendation of the TRC would be done on a consensus basis. To that end, members of the TRC rated the applicants using the terms "strong, average, fair, and poor." To provide more flexibility, the ratings were broken down into subgroups as follows: strong, strong/average, average/strong, average, average/fair, fair/average, fair, fair/poor, poor/fair, and poor. In this case, the Intervenor prevailed as the first-ranked proposer since it had one category noted as Strong/average, whereas the Petitioner had a category ranked Average/strong. Otherwise, the two proposals would have been rated identically. Recognizing this close evaluation, but still compelled to reach a consensus, the TRC recommended the Intervenor to the Selection Committee as the first-ranked proposer. No member of the TRC disputed the result of the consensus selection. No member of the TRC voiced any opposition to the final recommendation to the Selection Committee. Two employees of DMS participated on and with the TRC. The Selection Committee then considered the recommendation of the TRC. The Selection Committee asked questions to the TRC chairman as to how the consensus was reached, as to the ranking of the proposers, as to the considerations given to the proposers, and as to the final determination of the TRC. Had the Selection Committee chosen to disregard the TRC recommendation, it could have done so. Had the Selection Committee sought additional information based upon the closeness of the ranking for the top two proposers, it could have sent the matter back to the TRC for additional consideration and input. It did not. After considering the recommendation of the TRC, the Selection Committee adopted the consensus recommendation. The TRC consisted of eight individuals who independently ranked the technical proposals and the oral presentations of the short-listed applicants. They met as a group to discuss their individual findings and to compile the individual ratings they ascribed to each entity. All of the deliberations were done in an open meeting that was video-taped and made a part of this record. No one individual controlled the tone or ratings submitted by the TRC members. The TRC chairman compiled the individual ratings and reviewed all consensus rankings with the group. No TRC member was precluded from changing their individual rating. No TRC member was precluded from challenging the consensus reached on any category. The criteria used by the TRC were drafted by DMS and the Department staff to specifically address the needs of the MIC project. Such criteria took into consideration all policies and practices utilized by DMS. The criteria used to evaluate the proposals for the MIC CMAR project considered and addressed the criteria set forth in DMS form DBC-5033. There is no DMS practice, policy or procedure that mandates the use of form DBC-5033. When such form is typically to be used, it is included in the RFQ package. It was not included in the instant package, and no proposer sought clarification as to whether the form would be utilized in the instant case. DMS did not intend to combine the scores from the short-listing process and the technical review process in this case. When it does require a combination of the two scores, DBC form 5033 is typically used. Although referenced by the RFQ, the agreement between DMS and the Department regarding the MIC project was not made a part of the RFQ. Neither DMS or the Department advised the Petitioner that the scores from the short-listing process and the technical review phase would be combined. DMS does not require that all details of an evaluation or scoring method be disclosed in an RFQ. All parties were aware of the consensus recommendation to rank the Intervenor ahead of the Petitioner and were further cognizant that the Selection Committee would make the final decision in the matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation and the Department of Management Services enter a Final Order dismissing the Petitioner's Formal Protest. DONE AND ENTERED this 21st day of September, 2001, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 21st day of September, 2001. COPIES FURNISHED: O. Earl Black, Jr., Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Gregory S. Martin, Esquire Moye, O'Brien, O'Rourke, Hogan & Pickert 800 South Orlando Avenue Maitland, Florida 32751 Brian F. McGrail, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450 E. A. Seth Mills, Jr., Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. 501 East Kennedy Boulevard, Suite 1700 Post Office Box 1438 Tampa, Florida 33601-1438 Paul Sexton, Esquire Thornton Williams & Associates 215 South Monroe Street South 600-A Tallahassee, Florida 32301 Cynthia Henderson, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Monesia Taylor, Deputy General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue in this case is whether Respondent's intended contract award pursuant to Invitation to Bid No. SDOC-11-B-049- CJ for ready-mix concrete is contrary to Respondent's governing statutes, Respondent's rules or policies, or the solicitation specifications.
Findings Of Fact In October 2010, the School District issued an invitation to bid for ready-mix concrete (the original ITB). The only bidder who submitted a bid in response to the original ITB was Bedrock. Bedrock had had the concrete contract with the School District for the prior three years and had used a front discharge delivery method. On December 7, 2010, Cindy Hartig (Ms. Hartig) and Michael Grego (Mr. Grego), who at the time was the superintendent of the School District, had a conversation concerning the award of the concrete contract to Bedrock pursuant to the original ITB. Mr. Grego testified that Ms. Hartig told him that the School Board would not support a recommendation to award the contract to Bedrock. Mr. Grego further testified that when he asked Ms. Hartig how she knew that the School Board would not support an award to Bedrock, she did not say how she knew. Ms. Hartig testified that Mr. Grego told her that he had polled the School Board members and that they advised they would not support an award of a contract to Bedrock. Having considered the testimony of Mr. Grego and Ms. Hartig, the testimony of Mr. Grego is more credible. On December 7, 2010, prior to the School Board meeting in which the School Board considered the original ITB, Ms. Hartig sent an email to Mr. Grego and Cheryl Olson (Ms. Olson), who was the director of purchasing for the School District. The email stated: Team, An ex board member works for bedrock An ex board member is building the house for the owner of bedrock Bedrock is only one of two companies that have front discharge trucks And reality is the front discharge is not needed, most CM's will not use them Please re look at the requirements for this bid prior to rebid Also make sure that each company is getting the vendor request and that it is not in their spam thank you cindy lou The former board member to whom Ms. Hartig was referring was John McKay (Mr. McKay). There had been friction between Ms. Hartig and Mr. McKay in the past. At the School Board meeting on December 7, 2010, the School Board voted to reject all bids for the original ITB. The reasoning for rejecting all bids was not apparent from the minutes of the School Board meeting. There was no evidence presented that the School Board, as a whole, was biased against Bedrock or that Ms. Hartig had influenced the School Board to reject all bids. On December 10, 2010, the School District issued the rebid ITB, which allowed the vendors to bid front and rear discharge methods of delivery. It was felt that having both front and rear delivery would give the maintenance staff an opportunity to choose the method they wanted to use on a job-by- job basis. The rebid ITB includes a bid submittal form on which the bidders are to submit their prices. There are 15 separate line items on which the bidders may submit a bid. Line items 1 and 2 are for delivery of ready-mix concrete using a front discharge cement truck. Line items 3 and 4 are for delivery of ready-mix concrete using a rear discharge cement truck. The rebid ITB did not specify whether the bidders had to submit a price for each line item in order to be deemed responsive. Paragraph 25, on page 2 of 29 of the rebid ITB states: AWARD: As the best interests of the School Board may require, the School Board reserves the right to make award(s) by individual item, group of items, all or none, or a combination thereof; on a geographical basis and/or on a district wide basis with one or more supplier(s) or provider(s); to reject any and all offers or waive any minor irregularity or technicality in offers received. Offerors are cautioned to make no assumptions unless their offer has been evaluated as being responsive. Any and all award(s) made as a result of this invitation shall conform to applicable School Board Rules, State Board Rules, and State of Florida Statutes. Page 3 of 39 of the rebid ITB provides: "THE SCHOOL BOARD RESERVES THE RIGHT TO REJECT ANY OR ALL OFFERS, TO WAIVE ANY INFORMALITIES, AND TO ACCEPT ALL OR ANY PART OF ANY OFFER AS MAY BE DEEMED TO BE IN THE BEST INTEREST OF THE SCHOOL BOARD." Section 2.09 of the rebid ITB provides: The School Board reserves the right to award the contract to the bidder(s) that the Board deems to offer the lowest responsive and responsible bid(s), as defined elsewhere in this solicitation. The Board is therefore not bound to accept a bid on the basis of lowest price. In addition, the Board has the sole discretion and reserves the right to cancel this Bid, to reject any and all bids to waive any and all information and/or irregularities, or to re-advertise with either the identical or revised specifications, if it is deemed to be in the best interest of the Board to do so. The Board also reserves the right to make multiple awards based on experience and qualifications or to award only a portion of the items and/or services specified, if it is deemed to be in the Board's best interest. Section 2.42 of the rebid ITB provides: "The School Board reserves the right to award one or more contracts to provide the required services as deemed to be in the best interest of the School Board." Section 2.11 of the rebid ITB defines "responsive and responsible" as follows: Each bid submittal shall be evaluated for conformance as responsive and responsible using the following criteria: Proper submittal of ALL documentation as required by this bid. (Responsive) The greatest benefits to the School District as it pertains to: (Responsible) Total Cost. Delivery. Past Performance. In order to evaluate past performance, all bidders are required to submit: A list of references with the bid and; A list of relevant projects completed within the last 3 years that are the same or similar to the magnitude of this ITB. All technical specifications associated with this bid. Financial Stability: Demonstrated ability, capacity and/or resources to acquire and maintain required staffing. Bidders are reminded that award may not necessarily be made to the lowest bid. Rather, award will be made to lowest responsive, responsible, bidder whose bid represents the best overall value to the School District when considering all evaluation factors. Two vendors, Bedrock and Prestige, submitted bids in response to the rebid ITB. Bedrock does not have the capability to provide concrete with rear delivery trucks. Therefore, Bedrock did not submit a bid for concrete delivered by rear discharge trucks. Bedrock submitted a bid for concrete delivered with front discharge trucks. Bedrock's total bid price was $74,887.50. Prestige's bid was for concrete delivered by rear discharge trucks. Prestige did not submit a price for concrete delivered by front discharge trucks. Prestige's total bid price was $70,300.00. The bid tabulation was posted on January 18, 2011. Staff of the School District made a recommendation to the School Board to award the front discharge portion of the rebid ITB to Bedrock and to award the rear discharge portion to Prestige. The recommendation was placed on the agenda for the School Board meeting scheduled for February 1, 2011. There was a discussion among the School Board members concerning notification to the vendors. Thomas Long (Mr. Long) became a School Board member in November 2010. He was concerned by the lack of response to the original ITB and, on January 27, 2011, requested Ms. Olson to send him a list of local vendors who did not respond to the rebid ITB. The purpose of the communication was to learn why vendors were not submitting bids. He contacted one vendor who did not submit a bid, but he did not contact either Bedrock or Prestige. The communication would have had to have been made after he received the list of vendors on January 28, 2011. Section 7.70 I. G. of the School Board Policy Manual provides: Vendors, contractors, consultants, or their representatives shall not meet with, speak individually with, or otherwise communicate with School Board members, the Superintendent, or School District Staff, other than the designated purchasing agent, and School Board members, the Superintendent, or School District staff, other than the designated purchasing agent shall not meet with, speak individually with, or otherwise communicate with vendors, contractors, consultants, or their representatives, about potential contracts with the School Board once an invitation to bid, request for quote, request for proposal, invitation to negotiate, or request for qualification has been issued. Any such communication shall disqualify the vendor, contractor, or consultant from responding to the subject invitation to bid, request for quote, request for proposal, invitation to negotiate, or request for qualifications. At the February 1, 2011, School Board meeting, the School Board voted to appoint Scott Stegall (Mr. Stegall) as the new chief facilities officer for the School District. The School Board also voted to table the issue of the concrete contract in order to give Mr. Stegall an opportunity to review the procurement. Mr. Stegall did review the procurement and recommended that the contract award be split between Bedrock and Prestige. There was no difference between the quality of the concrete whether it was delivery by a front discharge truck or a rear discharge truck. Whether it would be more efficient to use a front discharge versus a rear discharge method of delivery would depend on the job for which the concrete was ordered. The recommendation to split the award of the concrete contract was placed on the agenda for the School Board meeting scheduled for March 1, 2011. Five School Board members were present for the School Board meeting of March 1, 2011. Four School Board members voted to reject the staff recommendation and to award the contract to Prestige. One School Board member voted against awarding the contract to Prestige. Thus, the School Board's intended award of the contract was to Prestige.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the intended award to Prestige was not contrary to the School Board's governing statutes, the School Board's policies or rules, or the rebid ITB and that the intended award to Prestige was not clearly erroneous, arbitrary, capricious, or contrary to competition. DONE AND ENTERED this 16th day of August, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2011.
