The Issue The issue is whether Petitioner, Ricky Lynn Sapp (Sapp), was nonrenewed for his annual teaching contract for constitutionally permissible reasons.
Findings Of Fact Petitioner was first employed by the Escambia County School Board for the 1984-85 school year in the compensatory education program at Bellview Middle School and later that school year he took the place of an eighth grade math teacher who was out on maternity leave. Sapp holds a Florida Teaching Certificate in elementary education and is not certified to teach in middle school. He has a bachelors degree. Sapp was asked by the School Board to take the courses necessary to become certified in middle school math, but did not do so because he was working at another job at the time. Petitioner was hired on annual contract by the principal of Bellview Middle School to teach seventh grade math during the 1985-86 school year and to teach sixth grade for the 1986-87 school year. For the most part, Sapp received excellent performance evaluations from the Bellview principal. In September, 1986, a mother of a Bellview Middle School student complained to the principal regarding what she believed to be unacceptable contact between Sapp and her son. The principal told Sapp to stay away from the student, but the parent's complaints continued. The student had been in Sapp's seventh grade math class the prior school year. On November 7, 1986, Sapp was arrested for lewd and lascivious assault on that student. As a result of these charges the Superintendent of the Escambia County School District recommended to the School Board that Sapp be suspended without pay. The School Board voted to disapprove the Superintendent's recommendation. Instead, Sapp was reassigned to administrative duties at the Hall Center. In the fall of 1986, Sapp was also notified by the Department of Education, Professional Practices Services (PPS), that an investigation of the allegations involved in the criminal charge had been instituted. On April 1, 1987, Sapp received the standard memo from the School Board, signed by the Bellview principal, indicating that his annual contract was going to expire at the end of the 1986-87 school year. The memo also indicated that the school district would move as rapidly as possible on the reappointment of the annual contract teachers recommended to the Superintendent for reappointment for the 1987-88 school year, but "personnel assignments resulting from the closing of the Beggs Center and the redistricting of all middle school boundaries greatly obscures the timeline for such reappointments." During the summer of 1987, Sapp talked to Dr. Roger Mott, the Assistant Superintendent for Personnel Services of the school district, and others in his office regarding appointment to an annual contract for the 1987-88 school year. Sapp claims he was told by Mott that he would not be rehired until after his criminal trial. Mott denies telling this to Sapp. Because Sapp's testimony was very confused and contradictory regarding these alleged statements by Mott, Sapp's version is given little weight. Instead, it is found that Mott did not tell Sapp that he would be rehired after the criminal trial. During the discussions between Sapp and Mott in the summer of 1987, Mott did tell Sapp that he was free to interview with any principals in the district for open annual contract positions, however those principals who inquired would be told that there was a Professional Practices Services investigation. Sapp expressed interest only in employment at Bellview. During 1987 the middle schools of Escambia County were redistricted. As a result of redistricting, Bellview Middle School anticipated losing approximately 300 students and 10 teaching positions for the 1987-88 school year. After the jury found him not guilty on August 12, 1987, Sapp again inquired regarding employment. According to Charles McCurley, principal of Bellview Middle School, there were no positions available at Bellview. By letter dated August 21, 1987, Sapp was advised that the Professional Practices Services was investigating two complaints. The first related to the charge of lewd and lascivious assault on a child. The second complaint was that Sapp had received his teaching certificate by fraudulent means because he failed to disclose two criminal convictions on his applications. Mott became aware of the PPS investigation and he discovered that Sapp had apparently falsified the applications for his teaching certificate and the applications for employment with the Escambia County School District. Mott then informed Sapp that the chances of reemployment were not good and that he could not be considered for employment until the PPS investigation was complete. Mott also testified that Sapp was not reemployed because of the information that formed the basis of the second PPS investigation. While this is not the place to determine whether or not Sapp falsified these applications, it is necessary to determine what facts the Respondent acted on in not renewing Sapp's annual contract. Sapp's applications to both the school district and the state showed that he answered "no" when asked if he had ever been convicted of a felony or first degree misdemeanor or other criminal offense other than a minor traffic violation. Sapp has, in fact, been convicted of at least two such violations which were not disclosed. Sapp approached Robert Husbands, Executive Director of the Escambia Education Association, for assistance in getting employment. Husbands talked to Mott. Mott informed him that Sapp could not be rehired until the PPS investigation was resolved. Husbands found that there were seven teaching positions in the whole county which were vacant at the beginning of the 1987-88 school year. Two of those positions were located some distance from Pensacola. Only one of those positions was known to have been filled by an annual contract teacher. There were 37 annual contract teachers in the school district who were not renewed for the 1987-88 school year. Eight others who were not renewed at the beginning of the school year were rehired during the year. Because of redistricting, Bellview had only one opening for an annual contract teacher after it placed its continuing contract teachers. That one opening was for reading and was filled by a reading teacher with a masters degree. Sapp was not qualified for that position. After the 1987-88 school year had begun, Bellview experienced increased enrollment and a resulting increase in teaching positions. Those positions were filled by teachers who were teaching in their field of certification and who were at least as qualified as Sapp. It was very important that Bellview have teachers working in their area of certification because the school was to be audited for accreditation in the 1987-88 school year. Sapp's former position at Bellview was filled by a continuing contract teacher who had previously taught seventh grade and who was certified to teach in both middle and elementary school. The teacher who took over Sapp's class in the 1986-87 school year was not rehired. During the first week of the 1987-88 school year, Sapp sought employment at Bellview and the principal correctly told him there were no jobs. Later, in October, 1987, a position opened up at Bellview and a continuing contract teacher with a masters degree in reading and 18 years of experience was transferred in at her request. Sapp believes he was not renewed as retaliation for the School Board's rejection of the Superintendent's recommendation for suspension on January 27, 1987. This allegation is based only on Sapp's personal feeling and no evidence was presented to substantiate his belief. Sapp also believes he was not renewed because of the arrest itself. Again, no evidence was presented to substantiate his belief. By letter of September 18, 1987, the School District, through counsel, advised Sapp's attorney that Sapp would not be considered for reemployment until the PPS investigation was concluded and the District was advised of the results. The PPS has not filed any complaint against Sapp based on either of its investigations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Ricky Lynn Sapp, be DENIED relief from the nonrenewal of his annual contract and that his request for relief be DISMISSED. DONE and ENTERED this 8th day of March, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5059 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 Finding's of Fact Submitted by Petitioner, Ricky Lynn Sapp Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(10); 3(12); 4(14); 5(2); 6(2); 8(3); 9(3); 11(4); 12(5); 13(8); 15(6); 16(7); 18(23); 20(20); 21(24); 22(26); 23(26); and 25(27). Proposed findings of fact 7, 17, 28 and 29 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 10 is rejected as irrelevant. Propose findings of fact 14, 19, 24, 26, 27, and 30 are rejected as being unsupported by the competent, substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, School Board of Escambia County Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(9); 2(1 and 10); 3(11); 4(25); 5(25); 6(13); 7(14 and 16); 8(15 and 22); 9(18); 10(22 and 23); 11(6); 12(19); 13(29); 14(30 and 31); 15(32); 16(33); 18(19); 19(27); 20(28); 21(33); 22(34); and 23(35). Proposed finding of fact 17 is rejected as being unnecessary. Proposed finding of fact 24 is subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: G. James Roark, III, Esquire 17 West Cervantes Street Pensacola, Florida 32501 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Mike Holloway Superintendent of School Board Escambia County 215 West Garden Street Post Office Box 1470 Pensacola, Florida 32597-1470 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
The Issue Whether the award of a contract for Request for Proposal 031-MDW-1121 Fiber WAN Lakeland E-rate by Respondent, the School Board of Polk County, is contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact The School Board operates the public school system established for the School District of Polk County, Florida. See § 1001.30, Fla. Stat. The School Board is an authorized governmental entity allowed to contract for commodities or services using a competitive solicitation process. See §§ 1001.41(4), 1001.32(2), and 1010.04(2), Fla. Stat., and Fla. Admin. Code R. 6A-1.012(1)(e). The solicitation at the center of this protest is 031-MDW-1121, Fiber WAN Lakeland E-rate (the "RFP"). The Department published the RFP on December 2, 2020.4 The School Board initiated this competitive procurement seeking a contract for leased fiber to deliver wide area network ("WAN") communication services throughout the School District (the "WAN Services Contract"). The winning vendor's network design will directly connect the School District's main office building to approximately 65 school locations in and around Lakeland, Florida. Background Information: A WAN network provides dedicated broadband connectivity for computer networks that are geographically dispersed. For the RFP, the School Board contemplates a WAN network that delivers network resources, connectivity, and services to the various School Board facilities. WAN networks are designed using "highways" of crystal fiber optic cable. The fiber optic cables, which consist of strands smaller than a human 3 By requesting a deadline for filing a post-hearing submission beyond ten days after the filing of the hearing transcript, the 30-day time period for filing the Recommended Order is waived. See Fla. Admin. Code R. 28-106.216(2). 4 No vendor challenged the specifications in the RFP within 72 hours after the posting of the solicitation. hair, are fitted within a sheath. Sheaths are encapsulated by buffer tubes. Typically, 12 strands of fiber cable run through a buffer tube. The RFP: RFP Section 3.1 informed vendors that the School Board was seeking one of three options for its network infrastructure. These options included: 1) leased "lit" fiber, 2) leased "dark" fiber, or 3) leased "dark" fiber (IRU).5 Although the School Board intended to select only one "solution" for the WAN Services Contract, the RFP invited interested vendors to "propose one, two, or all three options" for the School Board's consideration. The School Board purposefully provided vendors the flexibility to design and engineer a product the vendors believed was the best fit for the School District. As stated in RFP Section 3.1, "[t]he District is not advocating or mandating any preconceived network design or construction route and leaves this decision up to the proposer to present their best solution while recognizing the cited termination locations." The School Board presented Denise Whitaker to discuss the RFP, as well as the process and procedures the School Board followed to evaluate the proposals. Ms. Whitaker served as the School Board's Purchasing Agent responsible for the RFP. In her role, Ms. Whitaker, together with a team, developed, drafted, and prepared the RFP documents and forms. Commenting on RFP Section 3.1, Ms. Whitaker relayed that the School Board was open to any of three scenarios for the WAN services. Ms. Whitaker (and later Rob Oyler) explained that: "Lit" fiber, as referenced in RFP Section 4.1, is a fiber network that is ready-made to transmit computer signals. To send data, an optical transceiver module is attached to an end point of the fiber cable, which shoots a laser through one or more of the crystal fiber strands. When activated, this 5 IRU is an acronym for Indefeasible Right of Use, which means an exclusive lease to use a telecommunications network. laser "lights" the fiber, and the fiber strand is immediately ready to send data and information. "Dark" fiber, as referenced in RFP Section 4.2, like "lit" fiber, is a WAN network that is ready to transmit data. However, once the network is constructed, the fiber is left dormant. In other words, the vendor will not activate the laser at the end point of the fiber cable. Instead, the customer (the School Board) will light the fiber using its own transceiver module. Leased Dark fiber (IRU), as referenced in RFP Section 4.3, is essentially a communications network built, owned, and operated by the vendor. To lease a dark fiber IRU, the customer (the School Board) would purchase the right to use a certain amount of network capacity for a specified number of years. Ms. Whitaker testified that the leased "lit" fiber option (the proposal the School Board eventually selected) required vendors to propose a price quote for an initial 60-month contract period, as well as five additional 60- month renewal terms, for a total of 360 months (30 years). As stated in RFP Section 4.1: Price quotes are requested for services provided on a month-to-month basis, as well as 60 month term of service with up to five additional 60 month renewal options. Ms. Whitaker explained that during the initial 60-month contract, the winning vendor was expected to construct, install, and then maintain a "lit" fiber network for the School Board's exclusive use. The School Board would then lease the "lit" fiber network from the vendor for the length of the contract. Thereafter, per RFP Sections 4.1 and 8.2, the School Board and the winning vendor could agree to renew the WAN Services Contract for up to five additional 60-month periods. Ms. Whitaker further stated that each vendor had to agree not to increase its pricing during the 360-month (30-year) total contract length. In other words, the Monthly Recurring Costs that each vendor quoted for the initial contract term would remain the same through each and every contract renewal period.6 Ms. Whitaker further stated that the School Board intended to apply for federal funding through the Federal Communication Commission's ("FCC") E-rate program to cover up to 90 percent of the cost of the fiber network.7 See RFP Sections 1.1 and 3.1 and Appendices G and H. RFP Section 4 specifically stated that "[t]he District will follow the purchasing policies of the School Board of Polk County, Florida and requirements and procedures of the FCC's E-rate program as administered by the Universal Service Administrative Company to be eligible for all available funding." Therefore, the School Board intended to use information contained within the winning proposal to apply for E-rate funding and obtain an E-rate funding commitment through the Universal Service Administrative Company ("USAC"). Obtaining E-rate funds would mean that the School Board would not have to bear the full price of the WAN Services Contract. Five vendors timely responded to the RFP. Zayo presented a proposal for the leased "lit" fiber option. WANRack submitted proposals for both leased "lit" fiber and leased "dark" fiber. The School Board also received proposals from Southern Light (leased "dark" fiber and dark fiber (IRU)); 6 Ms. Whitaker testified that the School Board landed on a 30-year procurement term for all three options as a way to establish an equal standard by which to compare and score the three different network designs ("lit," "dark," or dark IRU). This 30-year "apples-to-apples" comparison created a fairer analysis of the best network solution among the proposals. For the leased "lit" fiber option, as stated above, vendors were to submit a Financial Proposal Worksheet listing prices for a 360-month length of service. For the leased "dark" fiber option, vendors were to offer a price for an initial 120-month/10-year term of service with up to ten additional 24-month renewal options. For the leased dark fiber (IRU) option, vendors were to quote a 20-year indefeasible right of use price with up to five additional 24-month renewal options. 7 The FCC E-rate program provides funding through federal subsidies to schools for computer networks, internet access, and telecommunications systems. As explained by Mr. Oyler, the FCC created the E-rate program to provide financial support for public services. Mr. Oyler detailed that the E-rate program is funded by a universal tax on telecommunication devices. Summit (leased "lit" fiber (three options), leased "dark" fiber (three options), and hybrid "dark" fiber (three options)); and Frontier Communications (leased "lit" fiber). To score the proposals, the School Board selected three individuals to serve on an evaluation committee. The evaluation committee consisted of School Board employees Joseph "Sid" Lee, Curtis Hodnett, and Michael Chiavuzzi (collectively referred to as the "Evaluators"). Once the Evaluators were selected, Ms. Whitaker became their "facilitator." Ms. Whitaker explained that she was responsible for guiding the Evaluators through the scoring process. She was also charged with ensuring that the Evaluators followed all applicable procurement policies and procedures. Prior to scoring the proposals, Ms. Whitaker provided each Evaluator with the School Board's Request For Proposal (RFP) Evaluator's Guide (the "Evaluator's Guide"). The Evaluator's Guide explained that, "the evaluation committee members are responsible for reading and evaluating all responses for their completeness and quality of content. … Committee members meet together to discuss the proposals and determine if they missed anything during their initial review." The Evaluator's Guide further instructed each Evaluator to "exercise [their] independent judgment" and to not be "dependent on anyone else's judgment, wishes, or demands." Each Evaluator was to be free from "any influences from within the committee." Each Evaluator also signed a Conflict of Interest and Non-Disclosure Statement in which they certified that "no other relationship with or bias towards any offeror exists which will prevent me from evaluating any proposal solely on its merits." After Ms. Whitaker received the vendors' proposals, she read through them to ensure that the proposals were complete and adequately responded to the RFP. She then distributed them to the Evaluators for their individual review and scoring. RFP Section 6.2 established the RFP's evaluation criteria. The Evaluators were to score and rank vendors' proposals on a scale of 100 points. The specific award criteria and corresponding point values were set out as follows: Evaluation Criteria Maximum Possible Points Experience, Qualifications, and References ("Experience") 15 Methodology 20 E-rate eligible recurring and one-time Cost of Services ("E-rate Eligible Cost")8 25 E-rate ineligible recurring and one- time Cost of Services9 15 Demonstrated scalability of technology through pricing for higher tiered bandwidths ("Scalability") 10 Overall ability to meet the district needs ("Overall Ability") 15 Total Points 100 Under RFP Section 6.3, the Evaluators awarded points by placing a vendor's response to a specific criterion into a certain category. Based on the category assigned, a multiplier was applied to calculate the score. The categories which an Evaluator could assign were: Excellent (with a score multiplier of 1.0); Very Good (with a score multiplier of 0.8); Good (with a score multiplier of 0.6); Fair (with a score multiplier of 0.4); 8 RFP Section 6.2 emphasized that the E-rate Eligible Cost was the highest weighted factor. 9 No points were awarded to any vendor for the E-rate ineligible cost of services category because no vendor identified an E-rate ineligible cost in its proposal. Poor (with a score multiplier of 0.2); Unacceptable (with a score multiplier of 0.0). For example, if an Evaluator deemed a vendor's Methodology to be "Excellent," the Evaluator applied a score multiplier of 1.0 to the total points available for that subsection (20 points) to calculate the total points the vendor would receive for that evaluation criterion, i.e., 1.0 x 20 equals 20 total points. If an Evaluator determined that a vendor's Methodology was "Very Good," then the Evaluator applied a score multiplier of 0.8 to the total points available to reach the score awarded, i.e., 0.8 x 20 equals 16 total points. After the Evaluators completed their reviews, each Evaluator's score was added together to produce a final score for each proposal. The proposal receiving the highest point total would be designated the highest ranked proposal. After the Evaluators received the proposals, they met for two public meetings during which they reviewed, discussed, and scored all proposals. The first meeting took place on January 13, 2021. Initially, Ms. Whitaker instructed the Evaluators on the RFP's evaluation criteria and process. She also handed each Evaluator an Evaluation Criteria Sheet, which they were instructed to reference and use when scoring the proposals. Over the course of the first meeting, the Evaluators and Ms. Whitaker reviewed each proposal to determine whether the vendors properly responded to the RFP's requirements. They also discussed the merits of the different proposals. After several hours of discourse, however, the Evaluators realized that they could not complete their scoring in a single session. Therefore, the Evaluators agreed to schedule another meeting. The Evaluators reconvened for the second public meeting on January 20, 2021. During this meeting, the Evaluators determined that Zayo, WANRack, and Summit all submitted responsive proposals. The proposals from Southern Light and Frontier Communications, on the other hand, were nonresponsive. The Evaluators found that Southern Light failed to list a third customer reference per RFP Section 5.3, and Frontier Communications only provided a proposal for the first five years of service. Thereafter, the Evaluators finished their reviews, awarded their points (electronically), and turned their completed Evaluation Criteria Sheets into Ms. Whitaker. The Evaluators scored the proposals of Zayo and WANRack as follows: Mr. Lee: Experience (15 points): Zayo: 15 points WANRack: 15 points Methodology (20 points): Zayo: 16 points WANRack: 20 points E-Rate Eligible Cost (25 points): Zayo: 25 points WANRack: 21 points Scalability (10 points): Zayo: 8 points WANRack: 10 points Overall Ability (15 points): Zayo: 12 points WANRack: 15 points Total Points Awarded by Mr. Lee: Zayo: 76 points WANRack: 81 points Mr. Chiavuzzi: Experience (15 points): Zayo: 15 points WANRack: 15 points Methodology (20 points): Zayo: 16 points WANRack: 20 points E-Rate Eligible Cost (25 points): Zayo: 25 points WANRack: 21 points Scalability (10 points): Zayo: 8 points WANRack: 10 points Overall Ability (15 points): Zayo: 12 points WANRack: 15 points Total Points Awarded by Mr. Chiavuzzi: Zayo: 76 points WANRack: 81 points Mr. Hodnett: Experience (15 points): Zayo: 15 points WANRack: 15 points Methodology (20 points): Zayo: 16 points WANRack: 20 points E-Rate Eligible Cost (25 points): Zayo: 25 points WANRack: 21 points Scalability (10 points): Zayo: 8 points WANRack: 10 points Overall Ability (15 points): Zayo: 12 points WANRack: 15 points Total Points Awarded by Mr. Hodnett: Zayo: 76 points WANRack: 81 points At the final hearing, each Evaluator testified how they approached the review process and awarded points, as follows: Joseph "Sid" Lee: Mr. Lee works for the School Board as a Senior Manager in charge of electronic equipment repair and support. In his job, Mr. Lee manages all computer repairs and telecommunication support for the School Board. Mr. Lee commented that, in addition to serving as an Evaluator on the RFP, he also participated on the team that helped develop the RFP's specifications with Ms. Whitaker. Mr. Lee represented that the three Evaluation team members were School Board employees with computer networking responsibilities and were the most experienced employees in the RFP's subject matter. Mr. Lee testified that after he was selected as an Evaluator, Ms. Whitaker gave him a copy of the Evaluator's Guide, which he "skimmed" through. He also recalled that Ms. Whitaker provided him approximately seven proposals, which he read. In formulating his scores, Mr. Lee described the evaluation as the combination of a joint and individual effort amongst the Evaluators. First, the three Evaluators walked through each proposal and discussed the merits and deficiencies of the various sections. They then, individually, awarded points as appropriate. When awarding points, Mr. Lee testified that he applied the point values and procedures laid out in RFP Sections 6.2 and 6.3. Mr. Lee asserted that he used the same analysis and evaluation process for each proposal. He further stated that all his rankings and scores were based solely on his evaluations of the various proposals during the two January meetings. He asserted that he had no discussions outside of the two public meetings with any person regarding his review. Regarding his score for E-Rate Eligible Cost, Mr. Lee explained that the School Board's Purchasing Department (Ms. Whitaker) actually calculated the E-rate Eligible Cost score, not the Evaluation Team. Mr. Lee understood that Ms. Whitaker determined that Zayo's proposal should receive the top description of "Excellent" for the maximum 25 points. Mr. Lee relayed that Ms. Whitaker found that WANRack's proposal should be assigned the score of "Very Good," which equaled 21 points. Mr. Lee testified that Ms. Whitaker provided him the scores (25/21 points), which he then inserted into his score sheet. Mr. Lee further conveyed that he is familiar with and has worked on School Board E-rate projects. Mr. Lee was aware that E-rate funds are granted by the FCC to help schools pay for computer services, including the fiber network the School Board seeks through this RFP. Mr. Lee testified that the School Board hopes that the E-rate program will cover 90 percent of the WAN Services Contract cost. Mr. Lee also recalled a discussion during the January 20, 2021, meeting when the Evaluators debated the possibility that the E-rate program might have an issue awarding funds for Zayo's proposed network. Mr. Lee understood that Zayo's network design might contain "redundancies," the cost of which would not be covered by E-rate. (Mr. Lee testified that WANRack's proposed methodology did not raise this concern.) Consequently, Zayo's proposed network configuration might not qualify for E-rate funding. For the Methodology criterion, Mr. Lee awarded WANRack with an "Excellent" (the maximum 20 points) based on its proposed network design. He gave Zayo's network a "Very Good" for 16 points. Mr. Lee explained that he had no concerns with the efficacy of WANRack's proposed "point-to-point" or "hub and spoke" network. Based on his discussion with the other Evaluators during their January meetings, he believed that WANRack's solution would mesh well with the School Board's existing network and equipment. The School Board would not be required to change or modify anything to accommodate WANRack's network design. On the other hand, Mr. Lee described what he believed to be a flaw in Zayo's "Ring Topology" design. Mr. Lee believed that Zayo's network was susceptible to multiple points of failure. Mr. Lee explained that a "ring" network is devised to connect sites in an aggregated ring before funneling into the School District central office. Therefore, a single failure along a fiber cable line could affect multiple locations. WANRack, on the other hand, proposed a central hub to be installed at the School District's office building. WANRack would then build a point-to-point connection directly from the hub to each of the 65 separate school sites. Mr. Lee stated that the advantage of WANRack's network solution is that a point-to-point design only exposes the network to a single point failure along the fiber cable between two points. In other words, one failure within the network would only affect one school destination as opposed to multiple sites. In addition, Mr. Lee believed that Zayo's "ring" topology would lead to additional costs for the School Board. Mr. Lee noted his concern on his Evaluation Criteria Sheet where he wrote, "Zayo would require additional equipment for the installation which would cause the district a large overall increase in cost." Mr. Lee explained that he wrote this comment during the January 20, 2021, meeting after a discussion with the other Evaluators regarding the possibility that the School Board might have to purchase extra equipment to accommodate Zayo's design. Mr. Lee understood that this supplemental equipment could include additional rack space or power sources. Mr. Lee testified that the possibility that Zayo's proposal would cause the School Board additional costs led to his decision to categorize Zayo's Methodology as "Very Good," instead of "Excellent." For Scalability, Mr. Lee awarded WANRack's proposal with an "Excellent" (the maximum 10 points), and Zayo's proposal with a "Very Good" for 8 points. Mr. Lee explained that RFP Section 4.1 required each leased "lit" fiber proposal to be scalable to 100Gbps (gigabits per second), without limitation, at the same cost as 1GB/sec. The Scalability category contemplated the School Board's need to increase bandwidth and internet speed in the future. Mr. Lee testified that he based his score for Scalability on his overall discussion with other Evaluators. He understood that WANRack's proposed network design provided fiber dedicated to the School Board's use with no additional cost to the School Board. For Overall Ability, Mr. Lee awarded WANRack with an "Excellent" (the maximum 15 points), and Zayo with a "Very Good" for 12 points. Mr. Lee testified that in scoring this criterion, he contemplated that WANRack's proposed network would not require the School Board to make any infrastructure changes. As a final point, during his testimony, Zayo sharply examined Mr. Lee regarding one specific comment WANRack included in its proposal. The RFP Section 5.3 required each vendor to "provide three (3) references from current or recent customers (preferably Florida K-20) with projects equivalent to the size of The District or larger." WANRack, in its response, identified four referral projects. One of these projects was a current contract with "Polk County-FL." For the point of contact for this project, WANRack identified Mr. Lee, followed by his phone number and email address (sid.lee@polk- fl.net). Upon questioning, Mr. Lee disclosed that he is familiar with WANRack based on his past working relationship with the company on the "Polk County-FL" WAN contract. Mr. Lee explained that in 2020, he served as an evaluator for the School Board's RFP 032-MDW-0220, entitled Ethernet Service Bartow Sites E-rate (the "Bartow Contract"). WANRack won that RFP and currently provides the requested services to the School Board. Mr. Lee testified that, from September 2020 through May 2021, he regularly received biweekly status updates from WANRack's contract manager regarding WANRack's progress on the Bartow Contract. Despite this regular interaction, however, Mr. Lee urged that none of his communications with WANRack representatives involved the WAN Services Contract. He further testified that he never spoke to WANRack during the RFP scoring process. Neither did WANRack ever attempt to exert any influence or pressure on him regarding his evaluation of its proposal for the WAN Services Contact. Finally, Mr. Lee declared that WANRack never consulted him about using his name as the point of contact for the Bartow Contract. He had no knowledge of WANRack's decision to reference him in its proposal for the WAN Services Contract, nor did he approve it. Michael Chiavuzzi: Mr. Chiavuzzi currently works for the School Board as a Senior Manager of Network Operations. In this role, he oversees all network operations between the School District and the different school locations including connectivity, data storage, and security issues. Similar to Mr. Lee, Mr. Chiavuzzi served on the team that helped develop the RFP with Ms. Whitaker. After Mr. Chiavuzzi was selected as an Evaluator, Ms. Whitaker provided him with a copy of the Evaluator's Guide, as well as access to electronic versions of all proposals. Prior to scoring, Mr. Chiavuzzi read through the Evaluator's Guide and all of the proposals. As with Mr. Lee, Mr. Chiavuzzi recounted meeting with the other Evaluators and Ms. Whitaker for two public meetings. During the first meeting on January 13, 2021, Mr. Chiavuzzi testified that the Evaluation Team reviewed all the proposals to ensure that they contained the required forms and information. During the second meeting on January 20, 2021, the Evaluators awarded their scores. Echoing Mr. Lee, Mr. Chiavuzzi expressed that during the meetings, the Evaluators walked through each proposal and jointly examined how the different vendors met the evaluation criteria. They also discussed any concerns they had with any of the proposals. Mr. Chiavuzzi recalled that the Evaluators specifically addressed whether a proposal imposed additional costs upon the School Board for equipment that might be needed to support a particular network design. Mr. Chiavuzzi further relayed that the Evaluators explicitly compared and contrasted the benefits of WANRack's point-to-point network as opposed to Zayo's "ring" topology. The Evaluation Team also weighed the advantages and disadvantages of WANRack's aerial network design versus Zayo's intent to construct an entirely underground network. When scoring the proposals, Mr. Chiavuzzi testified that he applied the scoring matrix and procedures laid out in RFP Sections 6.2 and 6.3. He further voiced that he looked at the information in each proposal, as well as that vendor's references and prior projects. Regarding WANRack and Zayo, Mr. Chiavuzzi commented that both vendors were very experienced, and presented good references and qualifications. As to the Methodology category, Mr. Chiavuzzi awarded WANRack with an "Excellent" (20 points) and Zayo with a "Very Good" (16 points). To reach this score, Mr. Chiavuzzi explained that he looked at the proposed network solution each vendor offered the School Board. Mr. Chiavuzzi testified that he believed that WANRack's point-to-point network was superior to Zayo's "ring" network. He concluded that WANRack's design, which would run through aerial cables, was easier to maintain, modify, and repair, as well as presented fewer points of failure. Conversely, Mr. Chiavuzzi determined that Zayo's methodology contained more potential points of failure. Mr. Chiavuzzi repeated Mr. Lee's comment that the Purchasing Department (Ms. Whitaker) scored the E-rate Eligible Cost criterion. Mr. Chiavuzzi was under the impression that Ms. Whitaker calculated the scores based on a formula included in the RFP. However, he was not aware of the actual computations. For Scalability, Mr. Chiavuzzi awarded WANRack's proposal with an "Excellent" (the maximum 10 points), and Zayo's proposal with a "Very Good" (8 points). Mr. Chiavuzzi based his score on the fact that WANRack proposed extra fiber cables and optic modules for the School Board's future use. On the other hand, Mr. Chiavuzzi determined that Zayo's network might not accommodate future build-out. This limitation would force the School Board to expend additional costs to support Zayo's efforts to increase the bandwidth of its system. For Overall Ability, Mr. Chiavuzzi awarded WANRack with "Excellent" (the maximum 15 points), and Zayo with "Very Good" (12 points). Mr. Chiavuzzi's score was a cumulation of the various factors he previously identified including his conclusion that WANRack's point-to-point network design offered a more attainable and reasonable solution to the WAN Services Contract with less potential points of failure, as well as the fact that WANRack's design included multiple strands of fiber and extra modules for the School Board's future needs. Zayo's proposed network, in contrast, did not dedicate as much fiber for the School Board's use and contained multiple points of failure. Finally, Mr. Chiavuzzi asserted that his rankings and scores were based solely on his personal evaluation and independent judgment. Mr. Chiavuzzi expressed that he considered all relevant criteria and factors described in the RFP, and was not influenced by any vendor. Finally, Mr. Chiavuzzi stated that, when scoring, he looked for the best vendor for the School Board, and he formulated his scores in good faith. Curtis Hodnett: Mr. Hodnett currently works for the School Board as a Senior Wide Area Network Engineer. In this job, Mr. Hodnett manages the network connections between the School District's main offices and the different school sites. As with Mr. Lee and Mr. Chiavuzzi, Mr. Hodnett served on the team that helped develop the RFP with Ms. Whitaker. Mr. Chiavuzzi is his supervisor. After Mr. Hodnett was selected as an Evaluator, Ms. Whitaker provided him with a copy of the Evaluator's Guide, as well as an electronic version of all the proposals (which he downloaded). Mr. Hodnett testified that he read through the Evaluator's Guide and all of the proposals prior to scoring. Mr. Hodnett also confirmed that the Evaluators met for two public meetings during which they reviewed and scored the proposals. Mr. Hodnett recalled that when the first meeting on January 13, 2021, ran late, the Evaluators decided to schedule a second meeting to complete their review. When scoring the proposals, Mr. Hodnett testified that he applied the scoring procedures established in RFP Sections 6.2 and 6.3. For Methodology, Mr. Hodnett awarded WANRack with an "Excellent" (20 points) and Zayo with a "Very Good" (16 points). Explaining his specific scores, Mr. Hodnett testified that he believed that WANRack's "super simple" network configuration would enable data traffic to be more easily routed across the network. He also found that WANRack's proposal provided all essential support equipment, including an additional power source, if necessary. Conversely, Mr. Hodnett believed that the School Board would need to provide additional equipment and power to support Zayo's network design, which would result in added costs to the School District over the life of the contract. Mr. Hodnett also found WANRack's point-to-point/hub-and-spoke design superior to Zayo's "ring" topology. Mr. Hodnett explained that, as electronic data is transmitted through the different sites located along a "ring" network, the system's bandwidth can be diluted. A point-to-point network, however, avoids this problem. Mr. Hodnett also appreciated the fact that WANRack's design not only provided two "lit" fiber strands for the School Board's immediate use, but also included 10 additional strands of fiber for future "build-out" purposes (12 total fiber strands). Zayo, however, only offered two fiber strands as part of its proposal. Regarding the School Board's desire to use E-rate funding, Mr. Hodnett was aware that the School Board intended to fund up to 90 percent of the WAN Services Contract with E-rate funds. Mr. Hodnett further relayed that, to be eligible for E-rate funds, he understood that the project's construction must be completed within one year from the request for E-rate support. For Scalability, in awarding WANRack's proposal an "Excellent" (10 points), and Zayo's proposal a "Very Good" (8 points), Mr. Hodnett explained that the ability of Zayo's proposed solution to scale up to higher bandwidths was limited by the shared network design, which included only two strands of fiber cable. WANRack's design, on the other hand, would enable more data and information traffic to be routed through District offices. Mr. Hodnett again referred to the fact that WANRack's design included two "lit" fiber strands, as well as ten additional strands for future use. For Overall Ability, Mr. Hodnett awarded WANRack an "Excellent" (15 points), and Zayo a "Very Good" (12 points). Mr. Hodnett explained that the Methodology and Scalability of WANRack's proposal offered a "better fit" for the School Board. Mr. Hodnett also believed that WANRack's proposed network would allow the School Board to more easily control the WAN network. Conversely, Mr. Hodnett reduced Zayo's "overall" score due to lingering questions regarding the amount of data that Zayo's network could route to the District sites through the "ring" design. In addition, Mr. Hodnett wondered whether the redundancies in Zayo's design would negatively impact the School Board's request for E-rate funding. Finally, Mr. Hodnett was concerned that the School Board would have to provide additional costs, manpower, and resources to ensure that Zayo's network got up and running. With their proposals, per RFP Section 5, each vendor submitted a "Financial Proposal Worksheet." (A blank Financial Proposal Worksheet was included with the RFP at Attachment 2.) The Financial Proposal Worksheet required the vendors to complete a cost spreadsheet for the initial 60-month contract term, together with a separate cost spreadsheet for each of the five 60-month options. To score the E-rate Eligible Cost criterion, Ms. Whitaker prepared a Cost Summary of the E-rate Eligible Cost for each proposal. Ms. Whitaker used the price evaluation procedure set forth in RFP Section 6.3, Calculation of the cost, which stated: Points for the cost shall be determined by summing the total cost at 100GB for all sites in the proposal for all options. Distribution of points for evaluation of cost will be calculated using the following formula: lowest proposed cost/proposer's cost x total point value = proposer's points. Using this formula, the vendor with the lowest total cost would receive 100 percent of the possible points. Ms. Whitaker's Cost Summary revealed that Zayo's proposed price for leased "lit" fiber ($10,239,494.99) was the lowest price submitted of all bidders.10 Therefore, based on the price formula, Zayo's proposal received the maximum 25 points. WANRack's price ($12,467,196.36) was the second lowest price for leased "lit" fiber. Accordingly, WANRack's proposal received the second highest score (21 points). After all Evaluators completed their scoring, Ms. Whitaker tabulated the total scores for each proposal to determine the vendors' final scores. WANRack's proposal for its leased "lit" fiber option received the highest ranking with a score of 81. Zayo's leased "lit" fiber proposal received the second highest ranking with a score of 76. On January 27, 2021, Ms. Whitaker posted a Notice of Recommended Award (the "Notice of Award"). The Notice of Award reported that, at a School Board meeting to be held on February 23, 2021, a recommended bid award would be made to "WANRack Holdings, LLC," for WANRack's Leased Lit Fiber Services Option. On February 23, 2021, the School Board unanimously voted to approve the recommendation to award the WAN Services Contract to WANRack. 10 Zayo, in its proposal, quoted a total price of $10,239,494.99. It appears that throughout this matter, the parties rounded this figure up to $10,239,495.00. Both numbers were used interchangeably at the final hearing, as well as in this Recommended Order. On March 10, 2021, Ms. Whitaker wrote a letter to WANRack stating: The School Board of Polk County, Florida, in regular session, on Tuesday, February 23, 2021 approved RFP 031-MDW-1121 Fiber WAN Lakeland E-rate recommended bid award to WANRack, LLC. The contract between the parties consists of RFP 031-MDW-1121 and all requirements, attachments, worksheets, appendices, addenda and WANRack's proposal signed December 29, 2020 and submitted. This constitutes the complete agreement between the proposer and the District. An additional agreement is not required. The initial contract period will begin on or about July 1, 2021. On March 11, 2021, the School Board initiated its request for E-rate funding for the WAN Services Contract. The School Board prepared and submitted two FCC Form 471 applications to USAC regarding its contract with WANRack. Zayo's Protest: In its protest, Zayo contends that the manner in which the Evaluators reviewed, then scored, the proposals was arbitrary or capricious, clearly erroneous, or contrary to the RFP specifications. Zayo further argues that the evaluation committee members awarded WANRack's proposal points to which it was not entitled. In addition, Zayo maintains that WANRack's proposal violates E-rate requirements and is therefore nonresponsive. As a result, WANRack improperly received the highest point total and was undeservedly awarded the WAN Services Contract. To support its allegations, Zayo presented the testimony of Matt Mulcahy. Mr. Mulcahy is the Solutions Engineering Director for Zayo. In this role, Mr. Mulcahy supervises Zayo's sales engineers, who support Zayo's sales teams. He also designs Zayo's WAN networks, including Zayo's proposed "ring" topology design for this RFP. Regarding the Methodology behind Zayo's proposal, Mr. Mulcahy explained that the network that Zayo designed for the School Board would consist of 100 percent underground cable. Mr. Mulcahy stated that, conversely, WANRack intends to route 75 percent its network fiber through aerial installation. Mr. Mulcahy asserted that, in Florida, Zayo's design provides a far better protected and reliable WAN infrastructure because buried cables are substantially more resistant to hurricanes and tropical storms. Mr. Mulcahy conceded, however, that aerial installations are less expensive to maintain and repair because of the ease of access. Mr. Mulcahy also commented that Zayo's network solution offers superior "fault tolerance." Mr. Mulcahy explained that WANRack's proposal includes many more miles of fiber than Zayo's design. Mr. Mulcahy declared that the larger amount of fiber cable increases the risk of failure along the network. And, any point of failure would cause a loss of service to a network's end point. Mr. Mulcahy surmised that the Evaluators may not have understood the significance of fault points. As to the points awarded to Zayo for Scalability, Mr. Mulcahy confirmed that Zayo's network design only dedicated two fiber strands to transmit data throughout the School District. However, Mr. Mulcahy advanced that the RFP did not require vendors to offer a certain number of fibers for the School Board's use. Instead, the RFP charged vendors to present a solution that offered an initial bandwidth of 10Gbps that could be "scaled" up to 100Gbps. Mr. Mulcahy explained that, in essence, the RFP sought network designs that included the capability of increased bandwidth, which would accommodate the School Board's "future business ventures." Based on this directive, Mr. Mulcahy asserted that Zayo's proposal roundly meets the RFP's Scalability criterion because it is fully scalable to a bandwidth of 100Gbps using only two fibers. Therefore, he firmly disagreed with any Evaluator's comments or scores critical of the number of fiber strands Zayo built into its proposed network infrastructure. Further, Mr. Mulcahy testified that, in practice, Zayo's network designs routinely pull 12 strands into a building as is the industry practice. Regarding the Evaluators' concerns with additional costs necessary to support Zayo's proposal, Mr. Mulcahy conceded that Zayo's network design would require the School Board to purchase supporting equipment. Mr. Mulcahy contemplated that Zayo's proposed network would cost the School Board approximately $6,000 to $12,000 to install laser optics/pluggable modules at the 65 school sites within the District. On the other hand, Mr. Mulcahy rejected the supposition that the School Board would need to purchase a supplemental power source to augment Zayo's design. Plus, the RFP represented that the School Board would provide any necessary power to support the WAN network. See RFP Addendum 2, Question 6. Mr. Mulcahy added that he believed that WANRack's network will also require the School Board to purchase pluggable modules and switches. He surmised that the School Board would spend $5,000 to $10,000 to purchase equipment to accommodate WANRack's point-to-point design, as well as install a pluggable port and a more sophisticated switch at the District's hub site. WANRack introduced Rob Oyler to discuss the details of its proposal for the WAN Services Contract. Mr. Oyler founded WANRack and currently serves as the company's Chief Executive Officer. In this role, Mr. Oyler oversees all aspects of WANRack's business operations. Mr. Oyler stated that he started WANRack with a focus on school systems similar to the School Board. He relayed that all schools need internet access and technological services. WANRack provides this support through the construction of private fiber networks. Mr. Oyler testified that WANRack proposed a point-to-point network solution for the School Board. Mr. Oyler explained that this type of design contemplates an exclusive, "private highway" of fiber cable and equipment. WANRack would establish a central hub site at the District's headquarters. Network cables would then run directly from the hub to the separate District buildings. Mr. Oyler asserted that WANRack offered the School Board a "turnkey" solution. In other words, WANRack would "light" the fiber cable so that the network would be ready for the immediate flow of data as soon as the School Board accessed it. Mr. Oyler added that WANRack would be prepared to modify or supplement its design should the School Board elect to increase the available bandwidth or add more technology. However, WANRack will not charge the School Board any additional cost for this future work. Mr. Oyler confirmed that WANRack intends to route the majority of the School Board's network via aerial installation. Mr. Oyler anticipated that WANRack would construct approximately 111 miles of fiber cable to connect the 65 school locations. Mr. Oyler acknowledged that this aerial network will be more exposed to points of failure due to tropical storms and hurricanes than underground cables. However, Mr. Oyler countered that in the event of a failure or outage, aerial cable is much more accessible for repairs or replacement. With the above background information and testimony, Zayo presented a number of arguments asserting that the School Board's recommended award to WANRack must be rejected. Each specific challenge, along with the School Board's response, is analyzed as follows. The Evaluation Committee Failed to Follow the Mandatory Requirements of the RFP and School Board Policy in Scoring the Proposals: Zayo asserts that the Evaluators' comments on their Evaluation Criteria Sheets, as well as the consensus nature of the scoring, show that the Evaluators failed to follow the RFP requirements. Specifically, Zayo argues that the Evaluators incorrectly determined that Zayo's bid would result in a large overall increased cost to the School Board. Zayo argues that the Evaluators misunderstood both the proposal specifications, as well as how to appropriately apply the evaluation criteria to the proposals. As a result, the Evaluators improperly deducted points from Zayo's proposal. Consequently, the evaluation, scoring, and ranking were based on factual inaccuracies and were conducted unreasonably. To support its claim, Zayo points to the comment Mr. Lee wrote on his Evaluation Criteria Sheet that "Zayo would require additional equipment for the installation which would cause the district a large overall increase in cost." Zayo asserts that Mr. Mulcahy established that this statement is demonstrably not true. Instead, the information in Zayo's proposal made it clear that all equipment and infrastructure necessary to support its network solution would not require the School Board to purchase any additional equipment. Neither would it result in additional costs above Zayo's quoted price. As a result, Zayo argues that no rational basis exists for the Evaluators to have deducted Zayo's scores for the categories of Experience, Methodology, Scalability, and Overall Ability based on the assumption that the School Board would incur additional costs if it selected Zayo's proposed network. Consequently, the Evaluators' scores were arbitrarily or capriciously derived, which provided WANRack's proposal an unfair competitive advantage. School Board Position: The School Board asserts that the testimony shows that the Evaluators carefully and completely considered all the criteria enumerated in RFP Section 6.2 when formulating their scores. Thereafter, in the Evaluators' neutral and objective judgment, WANRack's proposed network design was superior to Zayo's design. Accordingly, the Evaluators concluded WANRack's proposal best served the interests of the School Board. Finding: The evidence supports the School Board's argument that the Evaluators' concerns regarding the possibility that Zayo's proposal would result in additional costs to the School Board was not arbitrarily or irrationally derived or gave WANRack an unfair advantage. At the final hearing, all three Evaluators credibly testified that they fairly and reasonably reviewed and considered each proposal. The Evaluators voiced logical and rational explanations as to how they analyzed, and then scored, each proposal. They further provided good faith and factually based reasons why they believed that WANRack offered the most cost-effective service and presented the most advantageous network solution for the School Board. (Furthermore, Mr. Mulcahy openly confirmed that Zayo's network design would cost the School Board an additional $6,000 to $12,000 in supporting equipment.) Finally, the Evaluators persuasively testified that they measured each vendor's proposal against the same criteria and held every proposal to the same scoring standard. Accordingly, Zayo's argument on this point is rejected. The Evaluators Erred Because WANRack's Proposal is not Demonstratively Better than Zayo's Proposal: Zayo asserted that WANRack's proposed network was not demonstrably better than its own proposal. Presented through the testimony of Mr. Mulcahy, Zayo contended that the Evaluators' scores for Zayo's proposal were "misguided." Mr. Mulcahy commented that the Evaluators did not appear sufficiently knowledgeable in WAN network designs to adequately grade and rank the different network designs. He did not believe that the Evaluators gave Zayo's proposal proper consideration. While Mr. Mulcahy conceded that he was not aware of any evidence that the Evaluators acted dishonestly, illegally, or unethically, he maintained that the scores they awarded to Zayo's proposal were simply "wrong." Zayo presented examples of error based on Mr. Mulcahy's testimony: Methodology: Zayo asserts that the evidence does not support the Evaluator's collective characterization of WANRack's Methodology as Excellent, while labelling Zayo's proposal Very Good. Zayo claims that its Methodology is superior to WANRack's network design because, in Mr. Mulcahy's opinion, buried fiber cables are substantially more resilient to storms. In addition, the fact that Zayo presented the lowest bid "maximizes the cost-effectiveness" of its proposal. Consequently, the Evaluators' scores to the contrary are flawed. Scalability: Similar to Methodology, Zayo asserts that the fact that each Evaluator awarded WANRack an Excellent for Scalability while awarding Zayo a score of Very Good was unjustified. Zayo asserts that both its proposal and WANRack's proposal provided for maximum scalability without any additional costs to the School Board. Therefore, no justification existed to score Zayo's proposal lower than WANRack's proposal for an identical response to this criterion. School Board Position: The School Board highlighted that the RFP expressed no preference for a specific type of methodology. To the contrary, RFP Section 3.1 stated that the School Board would consider "traditional network designs (such as hub and spoke) or alternative proposals." Therefore, the fact that Zayo's underground cables might provide more protection from environmental hazards than aerial cables does not automatically mean that Zayo's proposal was "demonstrably" superior to WANRack's design. How the vendors proposed to construct their network cable "highway" was only one factor in the Evaluators' analysis of which proposal presented the best solution for the School Board. The School Board further contends that the evidence presented at the final hearing does not show that the Evaluators' conclusions regarding additional cost to the School Board were erroneous. Mr. Mulcahy plainly testified that the School Board would need to purchase additional equipment to support Zayo's network design. Finally, the School Board again asserts that the evidence establishes that the Evaluators neutrally and objectively determined that WANRack's proposed network design was superior to Zayo's design. The Evaluators' testimony at the final hearing shows that they considered all the criteria set forth in RFP Section 6.2 when formulating their scores. Thereafter, they individually concluded that WANRack's proposal best served the interests of the School Board. Finding: The School Board's position has merit. The evidence at the final hearing demonstrates that the Evaluators awarded points based on an honest exercise of their discretion. The Evaluators credibly testified that they fairly and in good faith considered the information presented in each proposal. During the final hearing, each Evaluator evinced a broad and comprehensive knowledge of the details of both Zayo and WANRack's proposed network designs, as well as the subject matter of the RFP. The Evaluators further provided logical and rational reasons why they believed that WANRack's proposal was superior to the other proposals, particularly Zayo's proposal. The evidence did not prove that the Evaluators' scores were based on unfair or irrational prejudice. Accordingly, Zayo's argument on this point is rejected. The Evaluators Failed to Exercise their Independent Judgment When Scoring the Proposals: Zayo charges that the Evaluators, when scoring the proposals, acted "in a concerted way" to reach a consensus score in favor of one particular proposal (WANRack's), instead of applying their independent judgment as required by the Evaluator's Guide. Consequently, the Evaluators acted arbitrarily or capriciously in awarding a winning score to WANRack. To support this allegation, Zayo points to the fact that the Evaluators' scores for the Zayo and WANRack proposals were identical in every evaluation criteria. Zayo was further troubled as to why Mr. Chiavuzzi's scoresheet was devoid of any written commentary or notes that would explain how or why he scored as he did. School Board Position: The School Board maintains that the Evaluators' testimony clearly established that they independently formulated their scores based on their individual assessment of the proposals. Further, while the Evaluator's Guide advised that the Evaluators "should record brief comments that lend insight as to why they awarded or failed to award points based on the established RFP evaluation criteria for a particular item," neither the Evaluator's Guide nor any other provision of the RFP mandated that the Evaluators must document their exact thoughts or analysis on their Evaluation Criteria Sheets. Finally, regarding "concerted" collaboration between the Evaluators, the Evaluator's Guide specifically advised: It's normal and acceptable for there to be debate, even passionate debate, within the evaluation committee about how well a proposal meets the established evaluation criteria. As an independent evaluator you may be swayed by the debate in making you judgment about how many points you wish to award, and that is okay. Therefore, the RFP scoring process explicitly contemplated a collaborative process amongst the Evaluators in formulating the points to award to each proposal, as long as the ultimate score was based on each Evaluators' independent assessment. Finding: The evidence and testimony at the final hearing supports the School Board's position. While the Evaluator's Guide stressed that the Evaluators should exercise their "independent judgment," the Evaluator's Guide also clearly indicated that the Evaluators could collectively develop their scores. The Evaluator's Guide prompted the Evaluators to ask questions to understand pertinent information, as well as engage in "passionate debate" regarding the merits of each proposal. Such was the case in this RFP. During their two public meetings, the Evaluators freely and openly discussed the details of the vendors' proposals. However, each Evaluator credibly testified that when the time came to score the proposals, they applied their honest and independent opinions to the information presented by each vendor, and awarded scores as appropriate. Accordingly, Zayo's argument on this point is rejected. WANRack's Proposal Creates the Appearance of Impropriety with One of the Evaluators: Zayo alleges that a relationship between one of the Evaluators and WANRack creates an appearance of impropriety in violation of the Evaluator's Guide. The Evaluator's Guide specifically directed that Evaluators: will not have contact with any of the proposers during the evaluation process except during interviews; and, conversely, [Evaluators] are not to be contracted by any of the proposers during or following the evaluation process prior to contract award. … It is always best to err on the side of avoiding even the appearance of impropriety in the evaluation process. Zayo points to WANRack's listing of Mr. Lee's name as a point of contact for one of its references in its proposal. School Board Position: The School Board argues that no evidence indicates that WANRack ever contacted or spoke to Mr. Lee regarding the WAN Services Contract. On the contrary, Mr. Lee provided credible testimony that he and WANRack never discussed the terms, conditions, or scoring of the proposals for this RFP. For her part, Ms. Whitaker was not alarmed at finding Mr. Lee's name listed as a project contact in WANRack's proposal. Ms. Whitaker did not believe that this single reference in WANRack's proposal caused a potential impropriety. She commented that nothing in WANRack's proposal indicated that Mr. Lee was anything more than a reference regarding another contract between WANRack and the School Board. Ms. Whitaker expressed that WANRack's proposal did not contain any information that Mr. Lee was involved in WANRack's current contract with the School Board in any direct or material capacity. On the contrary, the fact that WANRack disclosed its specific point of contact on the Bartow Contract showed that WANRack openly revealed its existing working relationship with the School Board. For his part, Mr. Lee steadfastly asserted that he never spoke to WANRack during the RFP process, and WANRack never attempted to exert any influence over him regarding his evaluation of the WAN Services Contact. Mr. Lee further maintained that he was unaware that WANRack listed his name as a reference, nor did he approve the same. Mr. Lee testified that he fairly and objectively evaluated every proposal, and he formulated his scores consistent with his understanding of the RFP specifications and based on the best interests of the School Board. Finding: The School Board (and Mr. Lee) presents the most effective argument on this point. At first blush, the fact that WANRack inserted Mr. Lee as its point of contact on a prior School Board project does raise questions as to the working relationship between Mr. Lee and WANRack. And, the School Board certainly desired to prevent any inappropriate communication or influence between the vendors and the Evaluators. However, the questions were all answered. There was no evidence of any inappropriate communication or influence. No evidence or testimony establishes that WANRack received any competitive advantage or favoritism based on Mr. Lee's previous dealings with WANRack on the Bartow Contract. Neither does any evidence demonstrate that WANRack was awarded the WAN Services Contract based on its prior relationship with Mr. Lee. Mr. Lee persuasively testified that the scores he gave to WANRack and Zayo were based solely on the information contained within the proposals, and not from any other source or from his prior interactions with WANRack. Accordingly, Zayo did not prove that the fact that WANRack listed Mr. Lee as a point of contact on another contract with the School Board actually gave WANRack's proposal an unfair competitive advantage or led to the School Board's selection of WANRack for the WAN Services Contract. Therefore, an insufficient basis in fact exists to overturn the School Board's intended award to WANRack on this issue. WANRack's Proposal is Nonresponsive in that it Violates the FCC's E-rate Program Rules: Zayo contends that WANRack's proposal is ineligible for award under the RFP because it included terms that violated E-rate funding rules. Therefore, awarding the WAN Services Contract to WANRack will jeopardize the School Board's ability to use federal funds to pay for the network services. Specifically, Zayo represents that, to be eligible for E-rate funding, the E-rate program requires all special construction charges for a network to be completed and the fiber "lit" (i.e., ready to provide service) within the same 12-month fiscal year as the funding request. Zayo contends that WANRack's proposal, however, includes a timeline that stretches beyond the required, 12-month E-rate funding year. To support this argument, Zayo points to an illustration within WANRack's proposal that portrays a construction timeline that starts on July 1, 2021, and ends on October 13, 2022. (Pet. Ex. 25, pg. 61) This graphic representation indicates that WANRack will need 15 months to completely construct its network before it is able to provide WAN services to the School Board. Zayo argues that because WANRack's proposal contemplates an upfront construction time of greater than one funding year, it violates the requirements of the E-rate program. Consequently, the School Board must reject WANRack's proposal as nonresponsive because WANRack's solution is ineligible for E-Rate support and cannot meet the RFP service requirements. School Board Position: Ms. Whitaker agreed with Zayo's point that the scoring of the vendors' Methodology included evaluating how the vendors' network solutions comply with the E-rate guidance. However, in responding to this specific assertion, the School Board and WANRack argue that the illustration included in WANRack's proposal is only an "example of a construction timeline." Mr. Oyler (as supported by the School Board) testified that WANRack fully intends to construct its network within E-rate time requirements and that its network design for the WAN Services Contract will qualify for E-rate funding. At the final hearing, Mr. Oyler insisted that the October 13, 2022, date on the sample timeline is merely a conservative point of reference. He urged that, at the time WANRack submitted its proposal, the exact date that E-rate would approve funding for the WAN Services Contract was unknown. Consequently, the dates WANRack included on its illustration are simply projections for planning purposes. Further, the School Board and WANRack witnesses represented that E-rate special construction rules allow construction of the fiber network to begin up to six months prior to the start of the funding year (July 1). In light of this provision, Mr. Oyler conveyed that WANRack fully intends to begin construction of its network several months prior to the start of the pertinent E-rate funding year. Finding: Based on the testimony adduced at the final hearing, the School Board (and WANRack) persuasively counter Zayo's argument that the School Board should have deemed WANRack's proposal nonresponsive based on the inclusion of a construction completion date of October 13, 2022. WANRack credibly explained how its proposed network design can be constructed to sufficiently qualify for E-rate funding. Accordingly, Zayo did not present sufficient evidence to prove that WANRack's proposal must be disqualified as noncompliant with E-rate rules or the RFP specifications. WANRack's Score for Methodology Must be Reduced Due to the Fact that WANRack Failed to Provide a NID Switch: Zayo asserts that WANRack's Methodology did not deserve the top award of Excellent (20 points) because WANRack's proposed network failed to incorporate a Network Interface Device ("NID") switch. To support this argument, Zayo points to several provisions in the RFP that indicate that the vendors' network designs must include a NID switch. These sections include RFP Addendum 2, Question 1, which describes the School Board's expectation that vendors will use an "endpoint NID (i.e. switch, router)" that is "scalable up to 100Gbps which will connect to the district/site routers." Mr. Mulcahy also highlighted the RFP's requirement that vendors must "provide prioritization of voice traffic dependent upon the District's Voice- over-IP ["VOIP"] specifications," which, according to him, would implicitly require a switch or router. See RFP Section 4.4. Mr. Mulcahy testified that without the proper switch, the lasers that transmit data over the network will not "light" the fiber optic cable. Zayo asserts that WANRack, however, indicated that it will use a GBIC/SFP (Gigabit Interface Converter/Small Form-factor Pluggable) module in its design, rather than a NID switch. (A GBIC/SFP device is a small fiber optic transceiver, about the size of a pack of gum, that interfaces with the network to convert optical and electrical signals.) Mr. Mulcahy asserted that WANRack's decision to use a GBIC/SFP module instead of a NID switch gives WANRack's proposal a competitive advantage because the NID switch component is an expense that either the vendor or the School Board will have to bear. School Board Position: Mr. Chiavuzzi, during his testimony, directly rejected Zayo's argument that the RFP mandated all proposed networks include a NID switch. On the contrary, Mr. Chiavuzzi declared that the School Board intentionally did not require the vendors to meet a specific routing configuration in their proposals. Instead, the School Board gave vendors the flexibility to offer a broad range of network solutions to meet the School Board's needs, whether those designs included a NID switch or not. See RFP Section 3.1. Similarly, Mr. Hodnett saw no reason to reduce his score for WANRack's Methodology due to the fact that it did not provide a NID switch. Mr. Hodnett further represented that he could perform any necessary VOIP prioritization himself without the assistance of the network provider. WANRack (through Mr. Oyler) confirmed that WANRack's proposed network design does not include a NID switch. However, Mr. Oyler asserted that the corresponding equipment WANRack intends to use (GBIC/SFP devices) is scalable up to 100Gbps, and, therefore, will adequately support the network services the RFP specifies, as well as any VOIP requirements. Finding: The evidence and testimony adduced at the final hearing does not support Zayo's argument that WANRack was required to present a network solution that included a NID switch. Therefore, Zayo did not meet its burden of proving that the Evaluators acted arbitrarily or irrationally by awarding WANRack's proposal an Excellent score for Methodology, or that WANRack received an unfair competitive advantage or benefit. The Notice of Recommended Bid Award is Void and Cannot Be Enforced: Zayo asserts that the Notice of Award is void and cannot serve as the basis for an award to WANRack. Specifically, Zayo argues that the Notice of Award recommended that the WAN Services Contract be awarded to the wrong corporate entity. To support this argument, Zayo denotes that "WANRack, LLC" submitted the proposal in response to the RFP. The Notice of Award, however, recommended the School Board award the bid to "WANRack Holdings, LLC." Zayo charges that the discrepancy in the name of the intended contract winner on the Notice of Award invalidates the award to WANRack, LLC. School Board Position: Initially, the School Board asserts that Ms. Whitaker's reference to "WANRack Holdings, LLC" instead of "WANRack, LLC" was a simple scrivener's error that did not affect the integrity or propriety of the procurement process. During her testimony, Ms. Whitaker explained that she fully intended to write WANRack's appropriate corporate name on the Notice of Award. She represented that insertion of the word "Holdings" after WANRack's name was her mistake. She offered that she was not aware of the legal significance between the two companies. Ms. Whitaker urged that none of the Evaluators or School Board staff was confused over which entity was being recommended for the WAN Services Contract – WANRack was clearly the top ranked vendor. The School Board also introduced a Memorandum from the School Board Superintendent, Jacqueline Byrd, dated February 8, 2021, which recorded that the contract "for procurement of Fiber WAN Services to 65 sites in the Lakeland area" was awarded to "WANRack, LLC." In addition, the School Board argues that, at most, Ms. Whitaker's inclusion of the extraneous word "Holdings" was a harmless error that should not affect the outcome of the award. To support this argument, the School Board points to RFP Section 7.21, which states that, "The District reserves the right to waive irregularities in the proposals." The School Board insists that Ms. Whitaker's mistake should be treated as a waivable irregularity. The School Board further asserts that the terms of the WAN Services Contract will be governed by the RFP together with all requirements, attachments, worksheets, addenda, as well as WANRack's proposal. The School Board contends that these documents clearly establish that the vendor selected for this project is "WANRack, LLC."11 The School Board maintains that no vendor (including Zayo) was prejudicially affected by the incorrect reference to "WANRack Holdings, LLC" on the Notice of Award. For his part, Mr. Oyler offered that WANRack Holdings, Inc., is the holding company for WANRack, LLC. Mr. Oyler, who serves as Chief Executive Officer of both corporations, explained that WANRack, LLC, submitted the proposal in response to the RFP, and WANRack, LLC, will be the company that enters the WAN Services Contract to provide the leased "lit" fiber services to the School Board. Finding: The School Board persuasively rebuts Zayo's argument that the School Board's incorrect recommendation to award the WAN Services Contract to "WANRack Holdings, LLC" should invalidate the results of this procurement. Ms. Whitaker's mistake on the Notice of Award was not material to the award of the WAN Services Contract to WANRack. Neither did the error provide WANRack a competitive advantage or benefit under the terms of the RFP. To summarize the findings in this matter, based on the evidence in the record, Zayo did not demonstrate, by a preponderance of the evidence, that the School Board's intended award of the WAN Services Contract to WANRack was clearly erroneous, contrary to competition, arbitrary, or capricious, or that it was contrary to the School Board's governing statutes, policies, rules, or the solicitation specifications. Each Evaluator credibly 11 For example, Ms. Whitaker's letter to WANRack, dated March 10, 2021, states: The School Board of Polk County, Florida, in regular session, on Tuesday, February 23, 2021 approved RFP 031-MDW-1121 Fiber WAN Lakeland E-rate recommended bid award to WANRack, LLC. In addition, Ms. Whitaker's "memo to file" letter, also dated March 10, 2021, states: The School Board of Polk County, Florida (PCSB) and WANRack, LLC agree the contract between the parties consists of the RFP (including addenda), and the successful proposal. testified that they fairly and objectively evaluated the information contained in WANRack's and Zayo's proposals. Further, the evidence demonstrates that WANRack's proposal complied with the RFP specifications, and WANRack is fully capable of providing the "lit" fiber services the School Board seeks through the WAN Services Contract. Finally, the evidence does not show, by a preponderance of the evidence, that Zayo was placed at a competitive disadvantage in this solicitation. Neither is there evidence that the School Board conducted this procurement in a manner that was contrary to its governing statutes, rules, or policies, or the provisions of the RFP. Accordingly, Zayo failed to meet its burden of proving that the School Board's intent to award this procurement to WANRack must be rejected.
Conclusions For Petitioner: Robert A. Shimberg, Esquire Trae S. Weingardt, Esquire Hill, Ward and Henderson, P.A., 101 East Kennedy Boulevard, Suite 3700 Tampa, Florida 33601 1 Unless otherwise stated, all citations to the Florida Statutes are to the 2021 version. For Respondent: Jonathan Stidham, Esquire Jeffrey Sullivan, Esquire Stidham & Stidham Post Office Box 510 Bartow, Florida 33831 Warren Andrew Crawford, Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Box 30 Bartow, Florida 33830 For Intervenors: Stephen R. Senn, Esquire Matthew J. Vaughn, Esquire Peterson & Myers, P.A. 225 East Lemon Street, Suite 300 Lakeland, Florida 33802
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Polk County enter a final order dismissing the protest of Zayo. It is further recommended that the School Board of Polk County award Request for Proposal 031-MDW-1121, Fiber WAN Lakeland E-rate to WANRack as set forth in the Notice of Award. DONE AND ENTERED this 17th day of September, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S J. BRUCE CULPEPPER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2021. Charles Wesley Bridges, General Counsel The School Board of Polk County, Florida Post Office Box 391 Bartow, Florida 33831 Trae S. Weingardt, Esquire Hill Ward Henderson 101 East Kennedy Boulevard Suite 3700 Tampa, Florida 33602 Robert A. Shimberg, Esquire Hill, Ward & Henderson, P.A. 101 East Kennedy Boulevard Tampa, Florida 33602 Warren Andrew Crawford, Esquire Boswell and Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33830 Jeffrey Sullivan, Esquire Stidham & Stidham Post Office Box 510 Bartow, Florida 33831 Stephen R. Senn, Esquire Peterson & Myers, P.A. Suite 300 225 East Lemon Street Lakeland, Florida 33802 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Jillian T. Spangler, Esquire Boswell & Dunlap, LLP 245 South Central Avenue Bartow, Florida 33830 Frederick Heid, Superintendent Polk County School Board 1915 South Floral Avenue Post Office Box 391 Bartow, Florida 33831
Findings Of Fact Petitioner, COOK-REIFF, is an architectural firm located in Broward County, Florida. Respondent, BOARD is the governing body for the Broward County, Florida school district. On February 17, 1977, the BOARD approved the composition of the ASC. Since that dated the ASC, composed of: The Director of School Facilities, the Director of Facility Planning and Construction, two architects, two engineers, a representative of the District Advisory Committee, a representative of the Broward County Council for the P.T.A., and one designee from the office of the Superintendent of Schools for Broward County, Florida has acted for the BOARD in performing the major portions of those functions required of the BOARD by Section 287.055, Florida Statutes. The responsibility for selection of an architectural firm and the negotiation of the fee for School Board projects has been delegated by the School Board to the ASC. On January 21, 1982, the BOARD adopted Rule 6GX6-7003. The Rule as amended on January 20, 1983, sets forth administrative procedures for selecting professional services in compliance with the Consultants' Competitive Negotiations Act, Section 287.055, Florida Statutes (Supp. 1984), and Rule 6A-2.04, Florida Administrative Code. In particular, this Rule sets forth criteria to be considered in selection of an architectural firm for BOARD projects. Prior to 1982, the ASC used Chapter 287, Florida Statutes, as it's guideline in selecting architectural firms. The procedures and criteria contained in the administrative rule were modeled after Chapter 287, Florida Statutes. From January 1982, up to and including September 30, 1985, the ASC selected various architects for contracts for school projects by following the criteria provided for in the BOARD'S Rule 6GX6-7003. From the inception of the Rule in 1982 until the October 17, 1985, meeting of the BOARD, the BOARD approved each and every recommendation of the ASC. At no time prior to October 15, 1985, did anyone including BOARD members, directly or indirectly express dissatisfaction with the criteria that were contained within Rule 6GX6-7003 or the selection process that was being used by the ASC. On May 16, 1985, the BOARD approved advertising for the selection of an architect to design the new Prototype High School. In accordance with the authorization to advertise, the BOARD, through the department known as School Facilities, notified architects of the project and sought applications. On June 14, 1985, COOK-REIFF filed its application, i.e., an answered Architectural Questionnaire, with the Director of School Facilities for consideration for the Prototype High School. The application was reviewed and evaluated by Mr. Crouch using an evaluation form developed by Mr. Pulver's office. Mr. Pulver serves as director for School Facilities for the BOARD and Mr. Crouch, who mainly acts as Mr. Pulver's assistant, is the Director for Facility planning and Construction Supervision. On September 17, 1985, the ASC, in keeping with procedure established since 1982, met to "shortlist" i.e., to reduce the field of applicants for the Prototype High School. On September 17, 1985, a short list, which included COOK-REIFF, was prepared by the ASC which reduced the field of architectural firms to eight (8). Notice was then given to each of these firms advising that they would be allowed to make a twenty (20) minute oral presentation on September 30, 1985, before the ASC. On September 30, 1984, the ASC met with seven (7) members present and interviewed each of the eight (8) architectural firms on the short list. Following the interviews, the ASC met and discussed the eight (8) applicants. Following the discussions of these applicants, the following occurred: Each of the committee members that were present, wrote their first, second and third preferences on a piece of paper. This piece of paper was then placed in the middle of the table and one of the committee persons, Ms. Pat Mason, opened each of the ballots and announced the results. As a result of this first ballots the list of eight firms was narrowed to five firms and a second vote was held in the same manner. As a result of the second vote, three architectural firms were selected in order of preference with COOK-REIFF being selected by the ASC as its first preference as the architect for the Prototype High School project. Both the meetings of September 17 and September 30th. 1985 were open to the public. The record does not reflect whether notice of these meetings was published or advertised to place the public on notice as to when the ASC would be meeting. The format of voting used by the ASC was chosen so that various members would not be influenced by how other members might vote. The voting procedure which is described above is the same procedure which the ASC had used on different occasions in the past since 1982 where voting was by ballot and not by motion from the floor. This procedure was referred to as "secret ballot" in the Minutes of the ASC. No objections to these minutes were made by any member and Mr. Crouch received no objections from the members. The BOARD was aware that this method of balloting was being used by the ASC. No members of the then constituted ASC ever objected to this manner of voting either before or after September 30, 1985. In fact, prior to October 15, 1985, no one, including BOARD members had ever objected to this process which had been in use since 1982. And, prior to November 21 or 25, 1985, no one ever advised Mr. Pulver as Chairman of the ASC, that the process might be in violation of State Law. By letter dated October 3, 1985, Mr. Crouch notified COOK-REIFF that they had been selected by ASC as its first choice as the architect for the prototype high school. Following notification that they had been selected, COOK-REIFF through Cary B. Cooke negotiated a fee for the contract with Mr. Robert Pulver the BOARD's representative. These negotiations took place over a two-day period with a resultant $706,500.00 fee. Although Mr. Crouch negotiated the feed the fee as well as the balance of contract would have to be submitted to the BOARD for approval. After the fee was negotiated, Mr. Edwin Jacquith, the Project Coordinator for the Prototype High School for the BOARD, met with Cary B. Cook of COOK-REIFF on at least three (3) occasions to discuss, among other things, a Schedule of Events. Mr. Jacquith provided Mr. Cook with various documents including aerial photographs, surveys, facility lists, specifications, Chapter 6A-2 Florida Administrative Code and a proposed Schedule of Events. Mr. Jacquith requested that Mr. Cook prepare a Schedule of Events and submit it to Mr. Jacquith. Mr. Cook prepared a Schedule of Events which was provided to Mr. Jacquith and approved. In addition, after the fee was negotiated, but prior to October 15, 1985, Mr. Cook reviewed the documents which were provided to him by Mr. Jacquith and Mr. Cook prepared certain preliminary drawings in conjunction with the Prototype High School project. The minutes of the meetings of September 17, 1985, and September 30, 1985, were first officially provided to the BOARD members as supporting documentation for the recommendation for the approval of the contract with COOK-REIFF. The aforesaid recommendation was placed on the BOARD's agenda for October 17, 1985. The BOARD met on October 15, 1985, for a conference meeting to review the agenda for the meeting on October 17, 1985. On October 17, 1985, the BOARD discussed "Item E-14--Assignment of architect--prototype high school" with regard to several members concern over the BOARD's present procedure as set out in its Rule 6GX6-7003 and voted to disapprove the Recommendation of the ASC. Although one member mentioned in passing some concern over the balloting process used by the ASC, the minutes do not reflect any further mention or discussion on this point and the balloting does not appear to be the basis for disapproval of Item E-14. The minutes do not reflect that any member of the BOARD ever contended that the ASC failed to follow the procedure adopted by the BOARD in its Rule 6GX6-7003 in January 1982 and amended in January 1983 or that the selection of COOK-REIFF was improper. The BOARD heard presentations with regard to Item E-14 by COOK-REIFF, counsel for COOK-REIFF, school administrators and by the general public. At the October 17, 1985 meeting, Mr. Robert Pulver, the BOARD'S representative, responded at length to questions from BOARD members with emphasis on how the ASC applied the criteria contained in Rule 6GX6-70O3 and was surprised that the BOARD questioned the criteria that the ASC had been following since 1982. After the vote to reject the recommendation of the ASC by the BOARD on October 12, 1985, COOK-REIFF filed a Notice of Protest and subsequently filed a formal written protest in the form of the document known as Petition To The School Board of Broward County, Florida, in accordance with Section 120.53(5)(b), Florida Statutes (Supp. 1984), as amended by Chapter 85-180, Section 77, Laws of Florida. The BOARD convened a meeting on November 21, 1985, to consider the petition of COOK-REIFF but no decision was reached on this date and the meeting was adjourned to allow counsel for the BOARD to research the matter and reconvened on November 25, 1985. It was during the meeting on November 25, 1985, that the violation of Chapter 286, Florida Statutes, commonly known as the Florida Sunshine Law, was first raised. The violation involved the method of voting used by the ASC in the September 30, 1985 meeting which was described by the ASC chairman in the minutes of that meeting as a "secret ballot." The method of voting is more fully set out in Finding of Fact 15. The BOARD has not selected another architectural firm to be awarded with the contract for the Prototype High School Project. BOARD Rule 6GX6-7003 has not been amended or changed since January 20, 1983. The BOARD has however, recommended to the Superintendent of Schools that he formulate a committee for the purpose of reviewing the criteria and procedures so that this policy can be amended and, in fact, such a committee has met for that purpose. COOK-REIFF'S competence is not at issue in this matter. The BOARD had used a form contract with architectural firms for a number of years. Although this form contract was modified during 1985, the only changes to that contract are contained in the section with respect to professional fees for services rendered. In selecting COOK-REIFF as the architectural firm to be awarded the Prototype High School project, the ASC followed the procedures and applied the criteria contained in the BOARD's Rule 6GX6-70O3.
Recommendation Based on the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Respondents School Board of Broward County, Florida enter a final order awarding the contract for architectural services on the Prototype High School to the Petitioner, Cook-Reiff Association, Inc. Respectfully submitted and entered this 6th day of February 1986, in Tallahassee, Florida. WILLIAM R. CAVE 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 6th day of February 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-3985-BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1, except for last sentence which is included in conclusions of law. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 8. Adopted in Finding of Fact 10. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Adopted in Finding of Fact 16 but clarified. Adopted in Finding of Fact 15 but clarified. Adopted in Finding of Fact 17. Adopted in Finding of Fact 18 but clarified. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 21 but clarified. Adopted in Finding of Fact 22. Adopted in Finding of Fact 23. Rejected as unnecessary, immaterial and irrelevant. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25. Rejected as unnecessary. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Finding of Fact 32. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Adopted in Finding of Fact 8, but corrected to show the date as May 16, 1985. 2. Adopted in Finding of Fact 9. 3. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 2. Adopted in Finding of Fact 12 but corrected to show the date as September 17, 1985. Adopted in Finding of Fact 32. Adopted in Finding of Fact 4. Adopted in Finding of Fact 14 and 15. Adopted in Finding of Fact 15 and 18. Adopted in Finding of Fact 16. Adopted in Finding of Fact 15 with the exceptions of the language secret ballot" which was changed to "procedure was referred to as secret ballot" in the minutes . . ." and that the "voting was . . . conducted prior to any discussion by the committee as to architectural presentations" which are rejected as not supported by the minutes of the September 30, 1985 meeting of the ASC. See Petitioner's Exhibit No. 8. Adopted in Finding of .Fact 15. Adopted in Finding of Fact 15. Adopted in Finding of Fact 20. Adopted in Finding of Fact 21. Adopted in Finding of Fact 21. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. The first two (2) sentences adopted in Finding of Fact 24. The last sentence is rejected as not supported by substantial competent evidence in that the minutes do not reflect any discussion of "secret balloting." 21. Adopted in Finding of Fact 24 except for the portion indicating that the BOARD discussed "secret balloting" which rejected for the same reasons expressed above in paragraph 20. COPIES FURNISHED: Maurice M. Garcia, Esquire Kenneth A. Rubin, Esquire 2021 Tyler Street Post Office Box 650 Hollywood, Florida 33022 Edward J. Marko, Esquire Suite 322, 1040 Bayview Drive Post Office Box 4369 Fort Lauderdale, Florida 33338-4369 Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Superintendent School Board of Broward County 1320 Southwest Fourth Street Ft. Lauderdale, Florida 33312
The Issue Whether Petitioner, Sarasota County School Board (Petitioner or School Board), had just cause to terminate Ernest Curry (Respondent) for misconduct in office.
Findings Of Fact Petitioner is responsible for operating, controlling, and supervising the public schools in the School District. See § 1001.32(2), Fla. Stat. At all times material, Respondent was employed as a groundskeeper for the School Board. Groundskeepers are educational support employees. On September 2, 2020, while at work at Tuttle Elementary School, Respondent submitted to a reasonable-suspicion urine drug screen. The final test results returned positive for marijuana. As an educational support employee, Respondent’s employment with the School District is governed by the Collective Bargaining Agreement. 1 Petitioner’s Exhibit 1 is a copy of an excerpt of the Classified Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association and the School Board of Sarasota County, FL (Collective Bargaining Agreement). The undersigned takes official recognition of the entire Collective Bargaining Agreement, which may be accessed at https://www.sarasotacountyschools.net/cms/lib/FL50000189/Centricity/Domain/143/2019- 20%20Classified-Final-Rev%20052620.pdf. (Last visited Jan. 6, 2021).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Sarasota County School Board enter a final order terminating Respondent. DONE AND ENTERED this 7th day of January, 2021, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2021. COPIES FURNISHED: Ernest Curry 3408 16th Court East Bradenton, Florida 34208 Robert K. Robinson, Esquire Rob Robinson Attorney, P.A. 500 South Washington Boulevard, Suite 400 Sarasota, Florida 34236 (eServed) Dr. Brennan W. Asplen, III, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34321-3365 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether the proposed policies and summaries of procedures in Sections 7.29 through 7.33 of the Hillsborough County School Board Policy Manual are invalid exercises of delegated legislative authority.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is an engineering firm. Joe Robinson, a professional engineer, is the majority owner and president of Petitioner. Petitioner is a "small business" as defined in Section 288.703, Florida Statutes. Petitioner is also certified as a minority-owned business by the State of Florida and the School Board. Petitioner has performed engineering work on projects for the School Board in the past, and has expressed interest in performing such work for the School Board in the future. Respondent is a local school district, and is responsible for the construction, renovation, management, and operation of the public schools in Hillsborough County. To fulfill those responsibilities, Respondent is often required to obtain the services of architects, engineers and other professionals through competitive procurement under Section 287.055, Florida Statutes, the Consultants' Competitive Negotiation Act (CCNA). Background Prior to the Proposed Rules, the School Board's only adopted policy or procedure relating to the acquisition of professional services was Section 7.14 of the Policy Manual. That section does not specifically reference the CCNA; it simply authorizes the superintendent or his or her designee to "contract for professional or educational services to complete projects or activities authorized or approved by the school board." The only description of the School Board's existing procurement process under the CCNA is in a document entitled "Capital Projects Standard Procedures." That document was presented to but never adopted by the School Board, and it provides only a general outline of the procurement process. The procedures utilized by the School Board to procure professional architectural, engineering, and construction management services have been the subject of considerable review and some criticism over the past year. In February 2002, Mr. Robinson, on behalf of the Black Business Union, provided the School Board with a list of concerns related to the School Board's selection process, including: Selection criteria does not comport to requirements of F.S. 287.055 (i.e., points for utilizing certified minority firms, volume of work, etc.) [School Board] practices fail to follow the requirements of Chapter 4, SREF, Volume #1, and have not been adopted through any determinable policy or procedure. Compliance with [School Board] Policy 7.14 Purchasing Policies and Bidding, has not been followed. (Designees are exempt from nepotism and favoritism policy) On May 17, 2002, the Ernst & Young consulting firm submitted to the School Board a report summarizing the findings and recommendations of its "forensic evaluation and analysis of the District's construction and maintenance policies, practices, and procedures." At the request of the School Board staff, Mr. Robinson provided comments to Ernst & Young in connection with the evaluation. The Ernst & Young report was critical of many aspects of the School Board's procurement, construction, and maintenance policies, practices, and procedures. With respect to the procurement of architectural and engineering services, the report included the following assessment which is pertinent here: Our review of [the District's] vendor's [sic] selection process indicates, in many respects, that the process follows traditional requirements established by SREF and Florida Statute [sic]. Furthermore, in many instances, the procedures mirror those utilized by peer and contiguous school districts. However, we have identified significant shortcomings related to ranking the professional service providers that have submitted bids for either architectural design, engineering, or construction management services. * * * Interviews with the A/E/C [architectural/engineering/ construction] community have indicated that the vendor selection process is generally understood by the professional community. However, the architects and construction managers within the community do not understand how vendors are evaluated or ultimately rank ordered [sic] by the District to arrive at a list of the three highest ranked respondents. As a matter of fact, the District has moved away from using a score sheet or "score card" with pre-established evaluation criteria and a weighted point structure, and toward a rather subjective process whereby a selection committee simply appoints professional service providers either based upon past performance on a similar type of project (i.e. replicate design) or based upon the District's desire to equitably distribute work amongst the A/E/C community. This type of evaluation and selection process, as currently utilized by the District, while effective at distributing work amongst the A/E/C community, does not ensure that the best or most qualified vendor will be selected for each of the proposed school district projects. The current vendor selection process could permit abuse and favoritism as the selection committee could be influenced by School Board input, personal relationship [sic] and lack of objective criteria. Although we found no evidence of undue influence, the subjective nature of the process offers the District little credibility. * * * E&Y [Ernst & Young] found that the vendor selection process being utilized by [the District] lacks credibility in that it remains highly subjective as new projects are allocated without respect to numerical analysis of prior performance, company financial condition, proposed project management team, etc. Moreover, the selection committees do not rotate sufficiently to eliminate the possible influence from senior [District] Administrators or Board Members. * * * Upon comparison to each of the peer and contiguous school districts, Ernst & Young found that only [the District] engages in a vendor selection process in the absence of pre-established or pre-determined evaluation criteria and a numerically-based scoring system which permits a numerical ranking of each interested professional service provider. E&Y found that the vendor selection process being utilized by [the District] lacks credibility in that it remains highly subjective as new projects are allocated without respect to numerical analysis of proper performance, company financial condition, proposed project management team, etc. . . . Ernst & Young Report, at 27-29, 107 (emphasis supplied). The report included the following recommendations relevant to the procurement of architectural and engineering services: The District's vendor selection process can be more objective and better understood within the A/E/C community by developing standard evaluation criteria and a numerically-based scoring system. Such a system will permit the District to numerically rank each interested professional service provider and thus eliminate bias and potential favoritism of the [District] selection committee. Evaluation criteria should include, among other things, prior performance, company financial condition, proposed project management team, etc. Moreover E&Y recommends that the District augment its vendor selection committees with community members, business leaders, school principals, and other external stakeholders as appropriate. In conjunction, [the District] should also increase its rotation of the selection committees [sic] members to eliminate possible influence from senior Administrators or Board Members. Ernst & Young Report, at 117. On July 31, 2002, Gibson Consulting Group (Gibson), on behalf of the Legislature's Office of Program Policy Analysis and Governmental Accountability, submitted a report based upon its "best financial management practices" review of the School Board pursuant to Section 230.23025, Florida Statutes (2001). Unlike the Ernst & Young report, the Gibson report was not critical of the District's procurement process for professional services. Indeed, the report concluded that the District "has an efficient school planning and construction operation" (Gibson Report, at 6 and 10-1), and that it is utilizing best management practices in procuring professional services. Id. at 13 and 10-34 through 10-35. The Gibson report stated that "[t]he district can demonstrate that procedures for selection were in compliance with Subsections 287.055 and 235.211, Florida Statutes, and that the committee screened written applications in order to select an appropriate number of professionals to be interviewed and that selected candidates were interviewed." Id. at 10-34 (emphasis supplied). The Gibson report also noted that the district can demonstrate that the interview committee considered the factors described in Section 287.055, Florida Statutes, including minority business status. Id. The Gibson report did not acknowledge or address the shortcomings in the evaluation process detailed in the Ernst & Young report. The Gibson report did acknowledge that "[t]he state statute [Section 287.055] encourages objectivity," but it nevertheless concluded that the School Board’s existing procurement process is "an effective hybrid of objectivity and subjectivity." Id. at 10-35. Aside from that conclusion, the results of both studies are consistent with the findings and conclusions in the Recommended Order in DOAH Case No. 02-2230BID. DOAH Case No. 02-2230BID involved a challenge to the specifications of a request for qualifications (RFQ) issued by the School Board in response to a recommendation in the Ernst & Young report that the School Board supplement its in-house staff with contract architects or engineers to provide more on-site supervision and inspection of construction projects. Petitioner in this case was also Petitioner in DOAH Case No. 02-2230BID. The Recommended Order in DOAH Case No. 02-2230BID concluded (consistent with the Gibson report) that "the School Board's current selection process, although not detailed in a formally-adopted rule or policy, is consistent with the procedural requirements of the CCNA." See DOAH Case No. 02- 2230BID Recommended Order, at 35 (emphasis supplied). However, the Recommended Order also concluded (consistent with the Ernst & Young report) that the evaluation of consultants was arbitrary and contrary to competition because the factors upon which the evaluation would be made and the weight afforded to each factor was not specified in advance and because the committee members did not utilize a uniform method of evaluation. Id. at 36. Based upon the conclusion that the RFQ specifications were arbitrary and contrary to competition, the Recommended Order recommended that: the School Board issue a final order that rescinds the [RFQ] and reformulates the specifications of the request in a manner that, at a minimum, advises potential respondents in advance of the factors upon which the responses will be evaluated and the weight that will be uniformly given to each factor by the selection committee. DOAH Case No. 02-2230BID Recommended Order, at 37. The Recommended Order in DOAH Case No. 02-2230BID was issued on September 6, 2002. The record does not reflect whether the School Board has issued its final order in that case yet.3 As of the date of this Order, the final order in DOAH Case No. 02-2230BID had not been filed with the Division in accordance with Section 120.57(1)(k), Florida Statutes. Rulemaking Process In response to the Ernst & Young report and Petitioner's challenge to the RFQ specifications in DOAH Case No. 02-2230BID, the School Board initiated the rulemaking process to formalize and improve its competitive procurement procedures under the CCNA. The Proposed Rules were drafted by Tom Blackwell, the School Board's Director of Planning and Construction, and the School Board's attorney. The Proposed Rules were reviewed by an engineer on Mr. Blackwell's staff. The language of the Proposed Rules was derived from the procurement policies used by other local school boards, the State University System, and other governmental entities. Copies of those other policies were not introduced at the hearing. The Proposed Rules were first considered by the School Board at its meeting on June 18, 2002. The record does not include a copy of the notice that was provided for the June 18, 2002, meeting. Typically, however, the agenda of the meeting is provided to the press and posted on the School Board's website. The agenda includes only the general subject-matter of the agenda items (i.e., "procurement of professional services") and not their substance. The Proposed Rules were an "off-agenda item." They did not appear on the published agenda, so the first public notice that the Proposed Rules would be considered at the June 18, 2002, meeting may have been at the meeting itself. Petitioner (through Mr. Robinson) was aware that the Proposed Rules would be considered at the June 18, 2002, meeting. Mr. Robinson attended the meeting and provided extensive comments on the Proposed Rules. Copies of the Proposed Rules were apparently available at the June 18, 2002, meeting, because Mr. Robinson annotated his copy of the Proposed Rules (Exhibit P3) as he provided his comments to the School Board. At the conclusion of the June 18, 2002, meeting, the School Board authorized its staff to "go forward" with the Proposed Rules. Based upon that authorization, notices were published in local newspapers on June 27 (The Courier), June 28 (La Gaceta), June 29 (Tampa Tribune), and July 5, 2002 (Florida Sentinel-Bulletin). The notices were published in the legal advertisement sections of the papers. The notices stated in relevant part: In compliance with the Administrative Procedure Act, Chapter [sic] 120.54 of the Florida Statutes, 1978 [sic], and the School Board of Hillsborough County's policies, the public is hereby notified of the following amendment to the School Board's Policy Manual: 7.29 Acquisition of Professional Services, 7.30 Public Announcement, 7.31 Competitive Selection, 7.32 Competitive Negotiation, and 7.33 Standardized Agreements. Anyone challenging the above affected Policy/Summaries of Procedures is requested to do so in writing and mail or deliver to the address listed below within twenty-one (21) days of this notice. The public hearing is scheduled for July 30, 2002, 6:00 p.m., in the Board Room, Raymond O. Shelton School Administrative Center, 901 East Kennedy Boulevard. Copies of the affected Policy/ Summaries of Procedures, which have no appreciable economic impact on the school system, are available for inspection and copying at the office of the Superintended of Schools, Hillsborough County School Administrative Center. The notices did not identify the specific authority or law implemented by the Proposed Rules. However, that information was included on the copies of the Proposed Rules available at both the June 18 and July 30, 2002, School Board meetings. On July 11, 2002, Mr. Robinson sent a letter on behalf of Petitioner to the School Board requesting "a Public Workshop pursuant to Florida Statute 120.54(2)(c)" or an explanation from the agency head as to why such a workshop is unnecessary. On July 19, 2002, the chairwoman of the School Board responded to Mr. Robinson's letter and stated that a workshop was determined to be unnecessary because a public hearing was already scheduled on the Proposed Rules for July 30, 2002. The chairwoman also noted that the School Board staff had met with Mr. Robinson on a number of occasions to discuss the procurement policy, and that Mr. Robinson appeared at the June 18, 2002, meeting where he presented his recommendations on the policy. The chairwoman invited Mr. Robinson to submit written comments to the School Board prior to the July 30, 2002, public hearing, and to make an oral presentation to the School Board at the public hearing. On July 25, 2002, in response to the invitation in the chairwoman's letter, Petitioner (through Mr. Robinson) submitted a comprehensive procurement policy for the School Board's consideration. The policy was submitted as an alternative to the Proposed Rules. Petitioner's proposed policy (Exhibit P7) tracks the language of Section 287.055, Florida Statutes. It also includes the prohibition against contingent fees and the exemption for reuse of existing plans which are in the statute but were not restated in the Proposed Rules. Petitioner's proposed policy also includes a detailed explanation of the selection process, instructions for the evaluation of applicants (including criteria to be considered in the evaluation and the process for awarding points for those criteria), and forms to be used by applicants and scoring sheets to be used by the evaluation committee. The School Board held a public hearing on the Proposed Rules at its July 30, 2002, meeting. Mr. Robinson attended the meeting and provided comments on each of the Proposed Rules. The minutes of the July 30, 2002, meeting reflect that at least one other professional, an architect, appeared and provided comments on the Proposed Rules at the public hearing. At the conclusion of the public hearing, the School Board voted unanimously (six to zero) to approve the Proposed Rules. The version of the Proposed Rules approved by the School Board on July 30, 2002, included several of the changes previously recommended by Mr. Robinson. Those changes are discussed below. On August 9, 2002 (10 days after the School Board's July 30, 2002, meeting), Petitioner filed a petition with the Division requesting a determination that the Proposed Rules are invalid exercises of delegated legislative authority. Substance of the Proposed Rules The Proposed Rules create Sections 7.29 through 7.33 of the Policy Manual. The complete text of the Proposed Rules is included in the Appendix to this Final Order. Each section of the Policy Manual has two parts, a "policy" statement and a "summary of procedures" that implement the policy. The Proposed Rules follow that same pattern. Accordingly, the "policy" and the "summary of procedures" must be read together. The specific authority cited for the Proposed Rules is Sections 230.03(2), 230.22, 230.23, 235.211, and 230.23005, Florida Statutes. The law implemented by the Proposed Rules is Sections 235.211 and 287.055, Florida Statutes. The procedural aspects of the Proposed Rules are essentially the same as the practice followed by the School Board in the past as detailed in the Recommended Order in DOAH Case No. 02-2230BID. Proposed Section 7.294 establishes the general policy that professional architectural, engineering, landscape architectural, land surveying, or construction management services will be procured in accordance with the CCNA. The School Board's Operations Division is assigned the responsibility for administering the procurement process. Proposed Section 7.30 establishes the public announcement requirements for acquisitions of professional services on projects with construction costs in excess of $250,000 or professional service fees in excess of $25,000. Those are the same thresholds in the CCNA. The public announcement must include "a general description of the project and must indicate how interested consultants may apply for consideration." The announcement is required to be published in the Tampa Tribune, La Gaceta, the Florida Sentinel Bulletin, and another paper whose circulation is in the vicinity of the project. Proposed Section 7.31 outlines the competitive selection process. It requires firms interested in providing services to the District to be certified as being qualified to render the required service, and provides a non-exclusive list of factors to be used in determining whether the firm is qualified. Proposed Section 7.31 also creates the Professional Services Selection Committee (Committee) that is responsible for evaluating and ranking prospective providers of professional services. The Committee is chaired by the Assistant Superintendent of Operations, and the other members of the Committee are specified. The Committee is responsible for evaluating materials submitted by interested firms, conducting interviews, hearing presentations, and ranking applicants. The evaluation criteria "shall" include: the ability of professional personnel; whether the firm is a certified minority business enterprise; past performance; willingness to meet time and budget requirements; location; recent, current, and projected workloads of the firms; and the volume of work previously awarded to each firm by the District, and such other factors which may be pertinent to the project. Section 7.31 (emphasis supplied). The word "shall" was used rather than "may" based upon Mr. Robinson's comments at the June 18, 2002, workshop. As a result, consideration of these criteria/factors is mandatory. However, as the underscored language suggests, the evaluation criteria may vary from project to project. The project-specific evaluation criteria will be available to prospective applicants at the time of the public announcement along with the location of project, scope of work, project budget, project schedule, and submission requirements. See Proposed Section 7.30. In addition, Proposed Section 7.31 requires the weights to be associated with each qualification and evaluation criteria to be disseminated to prospective applicants, presumably also at the time of the public announcement. Proposed Section 7.31 requires the Committee to "report a consensus evaluation for each applicant, including a relative ranking for each weighted criteria." The phrase "consensus evaluation" is not explained, but because the Committee is required to "short-list" the three firms that receive the "highest aggregate score" it appears that the evaluation will be made based upon a numerical scoring system. Such a system is a significant improvement over the existing evaluation process which was found to be arbitrary in the Recommended Order in DOAH Case No. 02-2230BID at pages 16-17. Indeed, the School Board's witnesses confirmed that, although the criteria and weights may vary from project to project, all of the applicants for a particular project will be evaluated and scored by the Committee members in a uniform manner. The Committee is required to interview the applicants as part of its evaluation if the project's construction cost is more than $1 million. If the cost is less than $1 million, Proposed Section 7.31 provides that interviews are optional. The purpose of the threshold was not explained at the hearing. Mr. Blackwell simply testified that the threshold was derived from a review of the policies of other governmental entities. Those policies were not introduced at the hearing, and the record is devoid of any other evidence to justify the School Board's choice of $1 million as the threshold, as compared to some other amount. The Committee's "short-list" will be submitted to the School Board for approval. Thereafter, the School Board is required to notify each applicant of the "short-listed" firms. The notice must be given by certified mail, return receipt requested, and must include the notice required by Section 120.57(3)(a), Florida Statutes. The latter requirement was added after the June 18, 2002, meeting based upon Mr. Robinson's comments. Proposed Section 7.32 outlines the competitive negotiation process. Pursuant to that section, the Director of Planning and Construction is required to negotiate with the top- ranked firm. The top-ranked firm is required to submit a fee proposal with supportive information, if required. If a mutually acceptable compensation package cannot be negotiated with the top-ranked firm, negations will commence with the next firm on the "short list." Upon completion of successful negotiations, the agreed compensation must be submitted to the School Board for approval. Proposed Section 7.33 requires the Director of Planning and Construction, in collaboration with the School Board attorney, to prepare standard contract documents to be used on all projects. Modifications from the standard documents must be clearly indicated. In short, the polices and summaries of procedures in the Proposed Rules prescribe the process that will be followed in connection with all procurements subject to the CCNA. The policies and procedures also prescribe the critical substantive aspects of the process, but they contemplate additional detail being provided on a project-by-project basis in the solicitation package (i.e., RFQ or request for proposals (RFP)) for the project. The project-specific materials, which will be available to potential applicants at the time of the public announcement (and, hence, in advance of the submittal and evaluation of responses) will specify the particular evaluation criteria/factors to be used by the Committee as well as the weight that will be given to each factor. Those materials will include forms, instructions, and other information similar to that in Petitioner's alternative proposal (Exhibit P7). The Proposed Rules do not specifically incorporate the prohibition on contingent fees in Section 287.055(6), Florida Statutes, nor do they incorporate the provisions of Section 287.055(10), Florida Statutes, relating to reuse of existing plans.
The Issue Whether Respondent, Derek E. Andrews, should be terminated for his absence without leave from April 12, 2007, until the end of the 2006-2007 school year.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing in this matter the following Findings of Facts are made: Respondent, Derek E. Andrews, is a school teacher employed by the School Board of Seminole County, Florida. William Vogel is, and has been, Superintendent of Public Schools for the School District of Seminole County, Florida, for all times material to the occurrences relevant to this case. Pursuant to Section 4, Article IX, Florida Constitution, and Sections 1001.30, 1001.31, 1001.32, 1001.33, 1001.41, and 1001.42, Florida Statutes (2006), the School Board of Seminole County, Florida, is the governing board of the School District of Seminole County, Florida. The relationship of the parties is controlled by Florida Statutes, the collective bargaining agreement, and School Board policies. Respondent's supervising principal for the 2006-2007 school year was Dr. Shaune Storch. Respondent had been granted a leave of absence that expired on March 30, 2007. Respondent's leave for the period March 16, 2007, through March 30, 2007, was an extension of a previous leave as requested by Respondent. Subsequent to the expiration of Respondent's leave on March 30, 2007, Respondent's supervising principal attempted to contact Respondent regarding his intentions for the remainder of the 2006-2007 school year. Respondent did not meet with his supervising principal or otherwise respond to her letter of April 5, 2007. Article XVI, Section I.2. of the collective bargaining agreement, provides that any teacher who is willfully absent from duty without leave shall forfeit compensation for the time of the absence and be subject to discharge and forfeiture of tenure and all other rights and privileges as provided by law. Respondent was absent without leave from April 2, 2007, through the end of the school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent, Derek E. Andrews, guilty of the allegations stated in the Petition for Termination and that his employment be terminated. DONE AND ENTERED this 20th day of September, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 20th day of September, 2007. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Derek E. Andrews Post Office Box 62 Tangerine, Florida 32777-0062 Dr. Bill Vogel Superintendent of Schools Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Honorable Jeanine Blomberg Interim Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether the Miami-Dade County School Board's failure to disqualify Magnum Construction Management Corporation from bidding on Project No. A0746 pursuant to paragraph G. of the General Requirements of the Request for Qualifications issued in connection with the project was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board The School Board is a duly constituted district school board charged with the duty of operating, controlling, and supervising all free public schools in Miami-Dade County, including, among many others, Westview Middle School (Westview) and Miami Coral Park Senior High School. The Westview Project Westview is currently undergoing expansion, remodeling, and renovation work (Westview Project). The project is almost complete. Blanca Bazan is a School Board employee who serves as project manager on School Board construction projects. At all times material to the instant cases, Ms. Bazan has been the Project Manager on the Westview Project. LIVS and Associates (LIVS), an architectural and engineering firm, has been the Project Architect/Engineer (or A/E of Record) on the Westview Project since October of 1997, when it entered into a written agreement (which is still in effect) to assume such responsibility in return for a "lump sum" payment, plus additional fees (LIVS Westview Agreement). Paragraph III.G. of the LIVS Westview Agreement describes the "basic services" LIVS is to provide during the "construction phase" of the project. It provides, in pertinent part, as follows: The following are to be performed by the A/E [LIVS], and shall in all cases be in accordance with the requirement of the contract documents: OBSERVATION a.) The A/E shall provide construction administration of the Contract for Construction as set forth in this AGREEMENT and in the General Conditions of the Contract for Construction unless otherwise provided in this AGREEMENT. The A/E shall visit the site at least weekly or as appropriate to the stage of construction or as otherwise directed by the BOARD to become generally familiar with the progress and quality of the Work completed and to determine in general if the Work is being performed in a manner indicating that the Work when completed will be in accordance with the Contract Documents. As part of the A/E's basic services, the A/E shall conduct 120 on-site observation visits. A/E shall provide a report to the PM [Project Manager] . . . . On the basis of on-site observations as the A/E, the A/E shall keep the BOARD and Contractor informed immediately in writing of the progress or lack of progress and quality of the Work, and shall endeavor to guard the BOARD against defects and deficiencies in the Work. The A/E shall at all times have access to the Work, wherever it is in preparation or progress. * * * b.) . . . . A/E will enforce the faithful performance of Contract and assure that the Work has been or is being performed in accordance with the Construction Documents. . . . A/E will provide written notice to BOARD if it observes or has reason to become aware of any defect or non- conformance with the Construction Documents. CONTRACTOR'S SUBMITTALS The A/E shall review and evaluate samples, schedules, shop drawings, and other submissions for conformance with the design requirements of the Project, applicable codes and ordinances. . . . The A/E shall also prepare in a timely manner change order items, including the proper documentation for DOE transmittal. . . . * * * 4. QUALITY CONTROL The A/E shall make a reasonable effort to evaluate materials and/or workmanship for conformance with Construction Documents, evaluate quality control testing reports, advise the Construction Contractor and the BOARD immediately of any unacceptable materials and workmanship the A/E may discover and [e]nsure that the Contractor take appropriate action to remedy unacceptable conditions. * * * CERTIFICATION OF PAYMENTS The A/E shall review the Contractor's notarized requisitions for payment, the schedule of values, subcontractor partial releases and the Project schedule. The A/E shall determine the amount which in the A/E's opinion should be paid to the Contractor and shall recommend for [the] BOARD'S approval certificates for payments in such amounts. These certificates will constitute a representation to the BOARD, based on site observations by all appropriate Designated Specialists for architectural and engineering disciplines and on the data comprising the application for payment, that the Work has progressed to the point indicated. By recommending a certificate for payment consistent with the contract documents, the A/E shall also represent to the Board that, to the best of the A/E's knowledge, information and professional judgment, the quality of work is in accordance with the Construction Contract Documents, unless the BOARD has been notified to the contrary in writing. Prior to issuing certification for payment, A/E shall review the status of Contractor's Construction Documents and Project schedule and verify that the documents and/or schedules are up-to-date and accurate to the extent visual observation of construction will disclose. A/E shall also confirm that after the first application for payment, each subsequent application shall be accompanied by subcontractor partial lien release fully accounting for subcontractor payments due for the previous application. If the Construction Documents and Project Schedule are not up-to-date and/or accurate, A/E shall include in its certification for payment a statement that the Construction Documents and/or Project Schedule are not up-to-date. In such event, BOARD may, a.) hold an additional ten (10)% of amount then due Contractor until A/E verifies that the Construction Documents and/or Project Schedule are up-to-date and accurate, b.) refuse to process the partial or final requisition for payment, or c.) pay Contractor. . . . The A/E's certification is a representation by A/E to Owner that all required items noted herein are submitted and proper and serves as a recommendation for payment only. The A/E shall make every reasonable effort to process the Contractor's requisition for payment in accordance with the timelines[] established in the General Conditions of the Construction Contract. . . . * * * SUBSTANTIAL COMPLETION The A/E, upon written notification by the Contractor that the Work is substantially complete and ready for substantial completion shall promptly conduct inspection to determine the date or dates of substantial completion for the work. . . . c) Not Substantially Complete If A/E determines that the Work has not achieved Substantial Completion, A/E will notify Contractor in writing of the deficiencies within ten (10) days of the Inspection. FINAL COMPLETION AND FINAL PAYMENT Upon receipt of written notice that the Work is ready for Final Inspection and Acceptance and upon receipt of a final Requisition for Payment, or at completion of the thirty (30) day punchlist period, whichever is earliest, A/E, its engineers and other consultants, BOARD and Contractor shall participate in a walk-through to inspect the Work. At the conclusion of the inspection, the Work shall be determined to be as follows: Finally Complete If it determined that the Work has achieved Final Completion, final payment shall be made in accordance with the Contract Documents. Not Finally Complete If it is determined that the Work has not achieved Final Completion, A/E shall prepare a Final Completion Punchlist and Final Completion shall be achieved in accordance with the Contract Documents and such other consequences as allowed by contract and at law shall be employed. . . . After all Final Inspection Punchlist items have been completed, A/E will recommend to BOARD acceptance of the Project and make recommendations regarding Contractor's final payment request. . . . Paragraph X.B. of the LIVS Westview Agreement provides as follows: If for any reason, the A/E is unable to perform the services under this contract, the BOARD reserves the right to either name or approve the A/E selected to complete the performance of this AGREEMENT. The BOARD reserves the absolute right to recommend a successor A/E or terminate the services of the A/E.[3] Paragraph XII. of the LIVS Westview Agreement provides that "[t]he BOARD may terminate this AGREEMENT, with or without cause, at any time upon thirty (30) days written notice to the A/E." With LIVS' assistance, a Project Manual for the Westview Project (Westview Manual) was prepared in anticipation of the letting of the Contract for Construction of the project through a competitive bidding process. Included in the Westview Manual were the General Conditions of the Contract for Construction. Subsections 3.1.1, 3.3.1, 3.3.2, and 3.3.3 of these General Conditions read as follows: 3.1.1 Contractor is the person, firm or corporation authorized to do business in the State of Florida and properly licensed or registered for the work to be performed with whom a Contract has been made with the Board for the performance of the Work described in the Construction Documents. * * * Contractor shall supervise and direct the Work in a manner consistent with contemporary community standards. Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Construction Documents give other specific instructions concerning these matters. Contractor shall be responsible to Board for acts and omissions of Contractor's employees, Subcontractors and their agents and employees and other persons performing portions of the Work under the Contract and shall be responsible to A/E and Board for coordination and complete execution of the Work in accordance with the Construction Documents. 3.3.3. Contractor shall not be relieved of obligations to perform the Work in accordance with the Construction Documents either by activities or duties of A/E in its administration of the Contract, or by tests, inspections or approvals required or performed by persons other than Contractor. In or around 1999, the Contract for Construction of the Westview Project was awarded by the School Board to J.V. Construction Corporation (J.V.). As required by law and the terms of the Contract for Construction, J.V. executed and delivered to the School Board a payment and performance bond issued by The Hartford Fire Insurance Company (Surety). J.V. subsequently defaulted and its right to proceed under the Contract for Construction was terminated by the School Board, which called upon the Surety to fulfill the Surety's obligations under the payment and performance bond it had issued. As a result, the Surety "essentially step[ped] into the shoes of [J.V.]" under the Contract for Construction.4 The Surety thereafter contracted with MCM to act as a "completion contractor" and complete the work J.V. had begun under the Contract for Construction. The School Board was not a party to this contractual arrangement. The Completion Contract into which the Surety and MCM entered (which has been in effect since October 25, 2001) provides, in pertinent part, as follows: THIS COMPLETION CONTRACT (the "Contract") is effective the 25th day of October 2001 by and between The Hartford Fire insurance Company (the "Surety") and Magnum Construction Management Corp. (the "Completion Contractor"). RECITALS WHEREAS, J.V. Construction Corp. (the "Former Contractor") and THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA (the "Owner") entered into a contract (the "Original Contract") for the Former Contractor to furnish all labor and material and perform all work for the construction of an addition to the Westview Middle School Project No. A0670 (the "Project") in accordance with the terms and provisions of the Original Contract including all contract documents forming a part of the Original Contract; WHEREAS, as required by law and under the terms of the Original Contract, the Former Contractor and Surety made, executed and delivered to the Owner a Performance Bond, Bond No. 21 BCS AE 8081, and Payment Bond, Bond No. 21 BCS AE 8081 (collectively, the "Bonds"), each in the penal sum of $6,678,000.00; WHEREAS, the Owner has terminated Former Contractor's right to proceed under the Original Contract, and the Owner has called upon the Surety to fulfill its obligations as surety under the terms of the Performance Bond; WHEREAS, the Completion Contractor has submitted a proposal dated July 25, 2001, to the Surety to complete the Original Contract, and said proposal is incorporated herein . . . ; and WHEREAS, the Surety and the Completion Contractor desire to enter into this Contract under the terms and conditions hereinafter set forth. NOW, THEREFORE, the Surety and the Completion Contractor, for and in consideration of the mutual obligations and promises herein set forth, do contract and agree as follows: AGREEMENTS Contract Documents. The Contract to the Surety consists of the terms and provisions contained herein, including the proposal from MCM Construction to the Surety dated July 25, 2001, to complete the Original Contract . . . ; and the Original Contract, including all General, Supplementary and Special Conditions, drawings, specifications, forms, addenda and documents forming a part of the Original Contract and any modifications to the Original Contract, all of which are incorporated herein by reference and which are hereinafter referred to collectively as the "Contract Documents." The Completion Contractor hereby warrants that it has received and read all of the Contract Documents. Strict Compliance. The Completion Contractor shall be bound to the Surety by all of the terms and provisions of the Contract Documents, including administrative as well as technical provisions, and shall strictly comply therewith in all respects. Furthermore, the Completion Contractor shall be bound in the same manner and to the same extent that the Surety and the Former Contractor or either of them would be bound to the Owner under the Original Contract, including but not limited to the conditions or determinations by the Owner with respect to all work done thereunder. The Completion Contractor shall have no responsibility or liability for indebtedness incurred by the Former Contractor. * * * Work to be Performed. The Completion Contractor shall furnish and pay for all labor, materials, services and equipment and shall do everything else necessary to perform and satisfactorily complete the work of the Original Contract as required by the Contract Documents to the satisfaction of the Surety and the Owner in such manner as to fully protect and save the Surety harmless as to its liability to the Owner for the completion of the original Contract (The "Work"). Time for the Performance of the Work. . . . . Subject to allowable time extensions as provided under the terms of the Original Contract, if the Completion Contractor fails to achieve Substantial Completion as defined in the Original Contract in the time allowed by this Paragraph, the Completion Contractor is liable to the Surety for all liquidated damages assessed against the Surety for the Work under the Original Contract after 713 days from the execution of this Agreement by both parties. The Surety may withhold from the Completion Contractor payments which otherwise may be due to the Completion Contractor in an amount equal to the liquidated damages assessed by the Owner. Price. The Surety shall pay to the Completion Contractor and the Completion Contractor agrees to receive and accept Four Million, Seven Hundred Eighty Eight Thousand, Three Hundred ($4,788,300.00) Dollars (the "Price") as full compensation for the performance and completion of the Work as described in the Contract Documents. . . . * * * 9. Payment. As specified in the Original Contract, the Completion Contractor shall prepare, sign and submit to the Owner, on behalf of the Surety, a request for payment (the "Surety/Owner Requisition") showing the value of the work completed and the materials stored to date in accordance with the terms of the Original Contract. The Surety/Owner Requisition shall be based on the Original Contract price of the Former Contractor. The amount of the Surety/Owner Requisition as approved by the Owner and the Surety shall be due and payable to the Completion Contractor within seven (7) days after the Surety receives payment from the Owner. If the Owner refuses to pay the Surety for any reason related to the Completion Contractor's performance, nonperformance, or in any way related to the Completion Contractor's actions, the Surety shall have no obligation to pay the Completion Contractor until the Owner pays the Surety. In this event, the Surety shall only be obligated to pay the Completion Contractor whatever amounts are received by the Surety within seven (7) days of the Surety's receipt of payment from the Owner. In the event Owner refuses to pay Surety for any reason NOT related to the actions of the Completion Contractor, or its Subcontractors, Surety shall make payment to completion contractor, for all work in place as of the date of the payment application, within the timeframe set forth in the Original Contract for payment to the Original Contractor from the Owner. * * * B. In the same time frame as specified in the Original Contract, the Completion Contractor shall prepare and submit to the Surety a request for payment (The "Surety/Completion Contractor Requisition") based upon the amount of the Completion Contractor's price to the Surety. The Surety/Completion Contractor Requisition shall be based on the same percentages of completion (the value of the work completed and the materials stored to date (as the Surety/Owner Requisition.). The Surety shall pay the Completion Contractor for the Surety/Completion Contractor Requisition as specified in the immediately preceding paragraph. * * * Defects in Work. The Completion Contractor shall be responsible for any and all defects in the work performed or materials supplied by the Completion Contractor and/or any of the Completion Contractor's subcontractors or materialmen after the execution of this Agreement by both parties. Independent Contractor. Except as otherwise provided in this Contract and the Original Contract the Completion Contractor will be permitted to exercise the full prerogatives of a prime contractor, in prosecuting the work, including but not limited to the selection and classification of supervisors and workers, scheduling, determination of equipment and material requirements, and the establishment of work hours and work week including overtime. It is further understood and agreed that the Completion Contractor is an independent contractor in connection with all work to be performed by it pursuant to the Contract Documents. * * * The Completion Contractor as the Surety's Representative on the Project. The Surety shall be represented at the Project by the Completion Contractor. Prior to the issuance of the Notice to Proceed, the Completion Contractor shall name, and the Surety shall specifically authorize in writing an individual with the Completion Contractor to be its representative (the "Authorized Individual") solely for the purposes set forth in this paragraph. The Authorized Individual will represent the Surety in dealing with the Owner on day to day construction issues with respect to the Project. The Surety hereby designates the Authorized Individual to prepare and process pay requisitions on the Contract. However, the Surety will sign all pay requisitions submitted to the Owner. Payments from the Owner shall be made payable to the Surety and transmitted to the Surety . . . . * * * 17. Termination of Agreement. Termination for Convenience. This Contract may be terminated in whole or in part by the Surety at any time for the Surety's convenience, provided the Completion Contractor is given not less than ten (10) calendar days written notice of intent to terminate and an opportunity for consultation with the Surety prior to termination. . . . Termination for Cause. Should the Completion Contractor, at anytime, in the judgment of either the Owner or the Surety, refuse or fail to supply a sufficient number of properly skilled workmen or materials, tools, equipment, facilities, or supplies of a proper quality; or fail in any respect to prosecute the work with promptness and diligence; or interfere with or impede the work of others on the Project; or fail in the performance of any of its obligations under this Contract or under the Original Contract, and should the Completion Contractor fail within three (3) days after receipt of written notice from either the Owner or the Surety to remedy such default; . . . or disregard the instructions of the Owner or the Surety; or for any other cause whatsoever shall not carry on the work in an acceptable manner, the Surety may, in any such event, either terminate this Contract or may exclude the Completion Contractor and its employees and agents from the work without terminating this Contract. . . . Following the execution of the Completion Contract, the Surety's attorney wrote a letter, dated November 7, 2001, to Ms. Bazan, which read as follows: The Hartford is in receipt of your letter dated November 2, 2001, and has requested that we respond on its behalf. In response to your specific questions, please be advised of the following: The Hartford's authorized representative on the project is: Mr. Fernando Munilla MCM Corp. 6201 S.W. 70th Street Second Floor Miami, Florida 33143 The Hartford has also authorized Mr. Fernando Munilla to prepare and process pay requisitions on the project. However, the Hartford will sign all pay requisitions submitted to the School Board. Payments from the School Board shall be made payable to the Hartford Fire Insurance Company and transmitted to The Hartford at the following address unless and until the School Board is notified in writing of a different address: The Hartford Fire and Insurance Company Hartford Plaza-T4 Hartford, Connecticut 06115 Attention: Robert Griffith, Esq. Bond Claims Mr. Fernando Munilla shall have, on behalf of The Hartford, the authority to negotiate and sign change orders for extra work requested or required by the School Board (hereinafter "Change Order") without The Hartford's prior written approval, provided that the Change Order does not exceed $10,000.00 and that MCM requests and is given additional time to perform the Change Order. If the Change Order does exceed $10,000.00, or if MCM requests additional time but no additional time is given to MCM to perform the Change Order, then The Hartford's written approval is required to negotiate the Change Order and the final Change Order must be signed by The Hartford and not Mr. Munilla. If the total of the approved Change Orders exceeds the sum of $50,000.00, then The Hartford, and not Mr. Munilla, must approve in writing all additional or subsequent Change Orders regardless of the amount of each such Change Order. Mr. Munilla has no authority to negotiate deductive Change Orders, credits, backcharges or net deductions from the Original Contract of any nature whatsoever without The Hartford's prior written approval. Mr. Munilla has no authority to negotiate on behalf of The Hartford on any disputes between MCM and The Hartford. I trust this letter answers all of your questions. Please do not hesitate to contact me should you require any additional information or clarification. Since the effective date of the Completion Contract, LIVS, acting pursuant to the LIVS Westview Agreement as the School Board's A/E of Record on the Westview Project, has been inspecting and evaluating the work performed by MCM under the Completion Contract and verifying that work for which payment is sought (through the submission of pay requisitions by MCM on behalf of the Surety) has been completed in accordance with the requirements of the Contract for Construction. If a pay requisition is approved by LIVS, it is then sent to Ms. Bazan for her review and approval. If everything is in order, Ms. Bazan signs the pay requisition and then "run[s] it through the chain of command." When all the necessary signatures are obtained, the School Board makes payment to the Surety, which, in turn, pays MCM under the terms of the Completion Contract. MCM does not have any contract with the School Board in connection with the Westview Project. The payment it receives for the work it does on the project comes from the Surety (with which it does have a contractual relationship), not from the School Board. The School Board considers the Surety to be the Westview Project "contractor" (as evidenced by MCM Exhibit 19, which is an excerpt of an October 30, 2002, printout listing School Board construction projects).5 In the Statement of Contractor's Qualification that MCM submitted to the School Board in 2002 to obtain its Certificate of Contractor Prequalification for "General Contractor [W]ork" (which certificate was effective July 10, 2002, until July 10, 2003, and authorized MCM "to have under contract with the [School] [B]oard at any one time a total dollar value of work in the amount of $100,000,000.000 and maximum dollar value of each individual project in the amount of $40,000,000.00"), MCM stated, among other things, the following under "Contracts in Progress": PROJECT NAME: WESTVIEW MIDDLE SCHOOL- REMODELING & RENOVATION OWNER: Miami-Dade County Public Schools, Blanca Bazan (305)995-4538 ARCHITECT: LIVS and Associates CONSTRUCTION COST: $4,788,300 START/COMPLETION: 10/01 to 10/03 DESCRIPTION OF PROJECT: Addition, renovation and remodeling of an existing middle school with very stringent phasing requirements and time frames. The project consists of three phases. The first phase is a new building with classrooms and a media center, as well as a new parking lot. The second phase consists of the renovation and remodeling of a one-story building with a courtyard, classrooms, locker rooms, band room, and shop class. The third phase is a two-story building with a parking lot, classrooms, auditorium and an immediate phasing that consists of remodeling a cafetorium during summer break. The remodeling and renovation includes: asbestos abatement, architectural, electrical and mechanical demolition. The Instant Project In or about July of 2002, the School Board issued a Request for Qualifications for Design-Build Firms for "State School 'MMM' 1600 Student Station Addition at: Miami Coral Park Senior High School (Project No. A-0746)" (RFQ). In a design-build project like the Instant Project (in contrast to the "traditional bid contract scenario"), the School Board enters into a single contract (with a design-build firm) for both the design and construction components of the project.6 In the Legal Advertisement that was part of the RFQ, the School Board announced that it "intend[ed] to pre-qualify three (3) to six (6) design-build firms to subsequently invite them to bid" on the Instant Project and further stated, in pertinent part, the following: Firms and companies desiring to participate in the design-build pre-qualification process shall submit an original qualification proposal and eight copies . . . . * * * If the applicant is a joint venture, an executed copy of the joint venture agreement must be submitted with the application. Percentages of participation of fees must be clearly stated for each joint venture partner. Only one submittal will be accepted per applicant, either as a single prime or as part of a joint venture. Firms or companies desiring to participate in this contract must have been pre- qualified by the Board, in accordance with Board rule for Pre-Qualification of Contractors for Educational Facilities Construction, prior to submitting their proposal for this advertisement. . . . The General Requirements portion of the RFQ provided, in pertinent part, as follows: In order to be considered, proposers must meet the following basic requirements: * * * A pre-proposal conference will be held . . . . Attendance is highly encouraged. This will be the only opportunity to present questions regarding the proposal. Written questions may be forwarded to Mr. Ivan M. Rodriguez, R. A., . . . and said questions will be answered at the pre-proposal conference. Questions and answers will be distributed to attendees. Proposers must be authorized to do business in the State of Florida and must possess all required registration, certification and licenses (including design and construction) in accordance with all applicable Florida Statues, ordinances, regulations, and/or Board Rules. A joint venture, including a joint venture composed of qualified business organizations, is itself a separate and distinct organization that must be qualified in accordance with Board Rules and Florida Statute 489.119(2)(c). Proposers must have been in business for a period of no less than five years. In the event of a joint venture or a newly formed company, at least one of the entities of the joint venture or principal of the newly formed company must have been in business for a period of no less than five years. Any proposer, firm or company desiring to participate in this process must not have as a part of its team an A/E firm presently under contract with the Board for a specific project and a General contractor for the same project. The Board considers this a conflict of interest and such proposals will not be considered for award of a contract under this Request for Qualifications. * * * M. MDCPS reserves the right to reject any proposal, to waive technicalities, or to accept the proposal that, in its sole judgment, best serves the interest of Miami-Dade County Public Schools. * * * Failure to file a protest within the time prescribed in §120.57(3), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Any questions concerning this RFQ should be directed to the Department of A/E Selection, Negotiations & Design Management; attention, Mr. Ivan M Rodriguez, R. A. Director at . . . . The Pre-Qualification Process portion of the RFQ provided, in pertinent part, as follows: Intent: To pre-qualify between three (3) to six (6) design-build firms to subsequently invite them to bid on the following project: State School "MMM" 1600 Student Station Addition @ Miami Coral Park Senior High School (Preliminary estimated Construction Cost- $17,473,890) 8865 S.W. 16th Street, Miami, Florida 33165 Project No.: A0746 The selected proposer will be placed on a list of qualified bidders for bidding on design-build services for the above project. * * * C. Pricing The selected proposers will be allowed to bid the above listed project[], under a competitive bid process, based on design criteria established by a Design Criteria Professional under contract by MDCPS. The Evaluation/Scoring Process portion of the RFQ provided, in pertinent part, as follows: All proposers will be evaluated based on information presented in their submittals, utilizing the Board approved "Procedure[] for [] Selection of Design-Build Firms" dated January 5, 1994 (Updated March 10, 1999) . . . . The "Procedure[] for [] Selection of Design-Build Firms" referenced in this portion of the RFQ provided, in pertinent part, as follows: I. SELECTION PROCESS: INTENT To select Design-Build firms for bidding on each DCPS Design-Build project identified. Selected proposers will be placed on a list of qualified bidders for bidding on each DCPS Design-Build project as advertised. SCHEDULE: Dates for the items listed below shall be projected and become part of future Request for Proposals (RFP) advertisement. Board Review Mailing Advertisement Proposal Submittal Deadline Evaluation Interviews Bid on Design-Build Projects Award of Design-Build Project * * * PRICING: Selected proposers will be allowed to bid each Design-Build project identified under a competitive bid process. * * * EVALUATION/SCORING PROCESS: All proposers will be evaluated based on information presented in their submittals . . . . SCORING The evaluation/scoring process will be conducted in two steps. First, staff shall evaluate all factors in the Initial Screening section of Form-1 . . . . Second, the Selection Committee shall evaluate all factors contained in the Interview section of Form-1 . . . . The evaluation/scoring process shall be as follows: INITIAL SCREENING All proposers will undergo an initial screening process conducted by staff where they will be evaluating the proposer[]s' qualifications. The proposers will be evaluated by staff utilizing Form-1 . . . ; maximum score in this category is 115 points. Proposers that do not comply with the RFP will not be accepted and shall be duly notified. INTERVIEWS All proposers that comply with the RFP shall be contacted to schedule interviews by the Selection Committee. The Proposers will be evaluated by each of the members of the Selection Committee utilizing Form-1 . . . . The maximum score in this category is 115 points. RANKING Both the initial screening score and the interview score will be added, and the sum of both scores will determine the ranking of all proposers. The highest and lowest of the seven (7) total scores for each proposer will be dropped, and an average taken of the remaining five (5), to determine total score and ranking. Three (3) or more firms will be selected as eligible to bid on the project advertised. The Board shall have the right to make exceptions to this procedure when valid public emergency conditions warrant. INSTRUCTIONS FOR USE OF DADE COUNTY PUBLIC SCHOOLS DESIGN-BUILD SERVICES SELECTION-FORM 1 * * * INITIAL SCREENING (115 POINTS TOTAL) From the proposer's response to the RFP, staff will objectively evaluate the firm's abilities in accordance with those criteria listed below (Scores for each applicant will be based on comparison with all other applicants): * * * C. ARCHITECTURAL ENGINEERING DESIGN (30 POINTS): Submit General Services Administration Standard forms 254 (one for each discipline) and 255 (one for entire team), which best describes the proposed architectural/engineering design team. . . . * * * INTERVIEWS After the proposers have been evaluated based on their written applications, they will be invited to make a presentation to the Selection Committee on their approach to perform Design-Build projects for DCPS. . . . * * * The Submittal Requirements portion of the RFQ provided, in pertinent part, as follows: Note: Please refer to Pages 4-9 of the "Procedure[] for [] Selection of Design- Build Firms" attached hereto as Exhibit "C" of this RFQ, for additional information on the following items: * * * E. Architectural/Engineering design- Submit Forms 254 and 255 for A/E team members only. Identify the architect's experience in design-build, the A/E team's experience with DOE codes, MDCPS design criteria/standards, master specifications, educational specifications and furniture, fixtures and equipment. Describe the A/E team's design coordination and quality control systems. * * * P. State of Florida licenses (design and construction)- Provide current copy of State of Florida registration and licenses for proposer and all its professional consultants. * * * R. Contractors Pre-qualification Certificate- Provide current copy of MDCPS Contractor Pre-qualification Certificate. Proposers must have a valid certificate with a minimum of $17,473,890 single project capacity, in order to be considered. * * * The pre-proposal conference referenced in the RFQ was held on July 25, 2002. Attendees were given a written document which contained, among other things, the following questions (that had been submitted in advance of the conference) and answers (that had been given to these questions by "staff"): QUESTION Can an A/E firm presently under contract with the Board for a specific school project, join with the general contractor for the same school project and present a proposal. ANSWER No! The Board views this as a conflict of interest and will not consider such entities. QUESTION Can one firm submit two different proposals, one as a single prime firm and the other as part of a joint venture? ANSWER No! The legal advertisement is very specific to this issue and will only allow one submittal per applicant, either as a single prime firm or as part of a joint venture. QUESTION Can A/E firms presently under contract with the Board as term consultants participate in a design-build entity submitting a proposal? ANSWER Yes! Staff does not see any conflict with this situation. The Board, at their meeting of April 1994, has ruled that neither a direct nor an implied conflict exists. Question: Will there be a design evaluation at the time of bidding in determining the successful bidder? ANSWER No! The successful bidder will be determined based on the bid process. All bidders are to comply with the design criteria bidding documents. However, during the selection process, we will be evaluating the design approach to this project. Question: The RFP [sic] requires the applicant to be authorized to do business in the State of Florida as a design-build entity; however, when we called the State there is none available. What do we do? ANSWER You must comply with all State requirements including required registration and licenses (Design & Construction) in accordance with Florida law. It is your responsibility to comply. MCM was among those that submitted a qualification proposal in response to the RFQ (MCM's Qualification Proposal). MCM's Qualification Proposal was accompanied by a cover letter, dated August 1, 2002, from its President, Jorge Munilla, which read, in pertinent part, as follows: MCM is pleased to submit our qualifications to provide Miami Dade County Public Schools with Design-Build Service for State School MMM * * * MCM has substantial experience with the Design-Build process as it relates to constructing educational facilities. We have assembled a team of professionals that will deliver the quality and cost efficiency required by Miami Dade County Public Schools. The team includes: PJB Associates, who[] will provide architectural services; Bliss & Ny[i]tray, [who] will supply structural engineering requirements; Fortin, Leavy, Skiles, Inc., [who] will provide civil engineering services; LIVS [and] Associates,[7] [who] is providing mechanical, electrical, plumbing and fire protection consulting expertise; and the talented firm of Rosenberg Design Group, [who] will provide Landscape Architecture design. It is significant that our team members have all participated in Design- Build projects for Miami Dade County Public Schools and therefore are acquainted with the unique relationship which it necessitates. The MCM Design-Build team will deliver the cost effective construction, timely delivery, and quality design goals that are required by Miami-Dade County Public Schools. The information that follows this letter details precisely how the MCM team will satisfy these project objectives. * * * MCM's Qualification Proposal contained a Proposer's Profile, which provided, in pertinent part, as follows: TOTAL NUMBER OF YEARS IN BUSINESS MCM Corp. is confident that our team, if selected for this project, will execute the contract and deliver functionally effective facilities in concert with M-DCPS staff. The project team and our organization are structured in such a manner as to provide clear-cut lines of communication and accountability. . . . MCM Corp. has learned that a critical factor in the achievement of project goals is the selection of a project team that has the technical knowledge and experience to deliver. The following lists the principal occupation of each member of the design- build team, their occupational license number, and the number of years they have been engaged in that practice. Team Members License Years in Business MCM Corp. General Contractors CG C023834[8] 19 PJB Associates, P.A. Architects AA 0003085[9] 5 Fortin, Leavy, Skiles, Inc. Civil Engineering 3653 19 Bliss & Nyitray, Inc. Structural Engineering 674 39 LIVS Associates MEP EB 0004134[10] 17 Rosenberg Design Group Landscape LA 0000143 31 Also included in MCM's Qualification Proposal were Standard Forms (SFs) 254 (Architect and Related Services Questionnaires) for PJB Associates, P.A. (PJB); Fortin, Leavy, Skiles, Inc. (Fortin); Bliss & Nyitray, Inc. (Bliss); LIVS; and Rosenberg Design Group (Rosenberg); and an SF 255 (Architect and Related Services Questionnaire for Specific Project) completed by PJB as MCM's proposed Project Architect (or A/E of Record). Under the arrangements that had been made, if MCM were the successful bidder on the Instant Project, it would enter into an agreement for design services with PJB and PJB, in turn, would retain the services of Fortin, Bliss, LIVS, and Rosenberg (as sub-subcontractors/sub-subconsultants on the project, having no direct contractual relationship with MCM) to assist it in fulfilling its contractual obligations to MCM. The SF 254 for LIVS was filled out by Hector Vergara, the partner that is "in charge of all [the firm's] mechanical work, and it lists the Westview Project as an "example" of the projects the firm has done in the "[l]ast 5 [y]ears." According the form, the "[c]ost of [LIVS'] [w]ork" on the Westview Project was $6,800,000.00 and the "[c]ompletion [d]ate (. . . [e]stimated)" of such work was "2003." The SF 255 reflected that Fortin, Bliss, LIVS, and Rosenberg would be "consultants" to PJB on the Instant Project in the "[s]pecialit[ies] of "[c]ivil [e]ngineering," "[s]tructural engineering," "[m]echanical/[e]lectrical/ [p]lumbing/[f]ire [p]rotection," and [l]andscape [a]rchitect[ure]," respectively, and it contained "brief resumes" of "key persons" from these entities who would be working on the project. Among these "brief resumes" were those of Mr. Vergara and Arnold Leon of LIVS, which indicated that they both had done work on the Westview Project. Among the other documents that were part of MCM's Qualification Proposal were the "job descriptions" and "resumes" of MCM personnel who would be assigned to the Instant Project, including Fernando Munilla (a principal of MCM), Alexis Leal (MCM's Vice President of Purchasing), and Riccardo Salani (an Estimator-Scheduler with MCM). Fernando Munilla's, Mr. Leal's, and Mr. Salani's resumes each listed the Westview Project as one of the projects on which they had worked. This was not the first design-build project solicitation of the School Board's to which MCM had responded. It had, "several months before," submitted a qualification proposal in response to the School Board's Request for Qualifications for Design-Build Firms for State School "FF,"11 which contained the same General Requirements, including paragraph G., as the RFQ in the instant cases. As in the instant cases, PJB was MCM's proposed Project Architect (or A/E of Record) on the State School "FF" project. TLC Engineering (TLC) was the original proposed MEP (mechanical/electrical/ plumbing) sub-subcontractor/sub-subconsultant. After MCM had submitted its qualification proposal, however, MCM and PJB wanted to replace TLC with LIVS as the proposed MEP sub- subcontractor/sub-subconsultant. When School Board staff (Ms. Bazan, Carlos Hevia of Capital Construction, and Ivan Rodriguez of the Department of A/E Selection, Negotiations and Design Management) were asked whether such a substitution could be made, they indicated that it would be "no problem."12 MCM therefore assumed, when it submitted its Qualification Proposal in the instant cases, that its proposing LIVS as an MEP sub- subcontractor/sub-subconsultant would not result in MCM's disqualification from further consideration pursuant to paragraph G. of the General Requirements of the RFQ, notwithstanding that LIVS was the School Board's A/E of Record on the Westview Project and MCM was the "completion contractor" on that same project (the identical roles LIVS and MCM had had at the time MCM was competing for the State School "FF" design- build contract). Following the review and evaluation of the qualification proposals that had been submitted in response to the RFQ in the instant cases, the School Board posted an "official interview schedule," on which the competing "design- build firms'" "initial screening scores" were announced. These scores were as follows: 105.50 for SBR; 103.50 for James Pirtle Construction Company (Pirtle); 98.00 for Betancourt Castellon Associates, Inc. (Betancourt); 93.00 for MCM; and 77.50 for the Beck Group (Beck). This "official interview schedule" also contained the following "notes": NOTE 1: Each firm must bring all equipment necessary to conduct its presentation. NOTE 2: The initial scores shall be cumulative to the interview scores. The final ranking for each firm shall consist of the initial score plus the interview score. NOTE 3: The following firm has withdrawn from the interviews: The Haskell Company Prior the first scheduled interview, Beck withdrew its proposal, leaving only four proposers to compete for award of the contract for the Instant Project. The determination was thereafter made to "pre-qualify" for bidding all of the remaining proposers without conducting the scheduled interviews. The evidentiary record does not reveal that anyone protested this "pre-qualif[ication]" decision; however, neither does it reflect that the School Board gave notice of the opportunity any adversely affected persons13 had to file such a protest and of the consequences of their not taking advantage of such opportunity. Following this "pre-qualif[ication]" decision, the proposers were provided copies of the Criteria Documents (or design criteria package) that had been prepared for the Instant Project. Volume I of the Criteria Documents contained, among other things, an Instructions to Bidders, a List of Subcontractors Form, Special Provisions for Compliance with M/WBE, General Conditions of the Design-Build Contract, and General Requirements. The Instructions to Bidders provided, in pertinent part, as follows: INSTRUCTIONS TO BIDDERS * * * The Instructions to Bidders, General Conditions of the Design-Build Contract, Special Conditions for Design-Build Projects and all other documents and sections, listed in the Specifications under the Bidding Requirements, apply equally to each Section and Division of the Specifications. All sections of the Criteria Documents are complementary and are part of the contractual requirements. 2.7.1 Board reserves the right to waive informalities and irregularities in a proposal, to reject any bid that shows omissions, alterations or additions not called for in the Criteria Documents and to reject any bid containing conditions or unauthorized alternate bids. * * * 2.8.1 A bid may not be modified, withdrawn or canceled by the bidder during the stipulated time period following the time and date designated for the receipt of bids and the bidder so agrees in submitting the bid. * * * 3.2.2 When notified by Criteria Professional, prior to or after Award of Contract by Board, the successful bidder shall meet with representatives of Board at MDCPS/DCP/DB "Kick Off" meeting. At that time, the successful bidder shall bring the Design Build Team whose work is highly crucial to the completion of the Work. . . . The List of Subcontractors Form contained the following directions: This list of subcontractors shall be submitted to the Section of Contract Management, 155, N.E. 15th Street, Miami, Florida, 33132, no later than the end of the second working day after award, i.e., for bids awarded on Wednesday, list shall be submitted by 4:30 p.m. on Friday. If the list of subcontractors is not submitted as requested, the Board may initiate action which will result in rescinding the award. Subcontractor as used herein shall be defined in Florida Statute 713.01(16)- Subcontractor means a person other than a material supplier or laborer who enters into a contract with the contractor for the performance of any part of such contractor's contract. For each subcontract listed below, the bidder shall name the subcontractor or list the bidder's firm if he/she proposes to do the work. The cost of work as quoted by the subcontractor shall be listed. If the name of a subcontractor is deleted or added, the owner shall be notified immediately along with the justification for the change. The Special Provisions for Compliance with M/WBE provides, in pertinent part, as follows: Subcontractor/Subconsultant- A person other than material person or laborer who enters into a contract with a contractor for the performance of any part of such Design Builder's contract. Design or other required consultant services contracted for, in the performance of this contract will be considered as a Subcontractor. . . . The General Conditions of the Design-Build Contract provided, in pertinent part, as follows: General Conditions of the Design Build Contract * * * 1.1.2 The Contract The Contract represents the entire integrated agreement between the parties hereto and supercedes prior negotiations, representations or agreements, either oral or written. The Contract may be amended or modified only by a Modification. The contract shall not be construed to create a contractual relationship of any kind (1) between the Board and a Subcontractor or Sub-subcontractor, or (2) between any persons or entities other than the Board and the Design-Build Contractor. The Contract Documents include the Criteria Documents and the approved Construction Documents. * * * 3.1.1 The "Design-Build Contractor" is the person, firm or corporation authorized to do business in the State of Florida and properly licensed or registered for the work to be performed with whom the Contract has been made with the Board for the performance of the Work described in the Criteria Documents. "Contractor" refers to a third party Contractor. * * * 3.3.2 The Design-Build Contractor shall be responsible to the Board for acts and omissions of the Design-Build Contractor's employees, Subcontractors and their agents and employees and other persons performing portions of the Work under the Contract and shall be responsible to the Board for coordination and complete execution of the Work in accordance with the Contract. * * * 3.3.6 The Design-Build Contractor shall enforce strict discipline and good order among its employees and other persons carrying out the Contract including its Subcontractors and Sub-subcontractors. . . . * * * 3.9.2 During the Construction Phase, the Design-Build Contractor shall employ a competent, full time, on-site Superintendent, the Design-Build Contractor's A/E of Record Representative, who participated at least fifty percent (50%) of his/her time during the Design Phase, and shall be on site at a minimum of 50% of the working hours of each week. An M/E/P coordinator and necessary assistants shall be in attendance at the job site during the performance of the Work. . . . The Design-Build Contractor's A/E of Record on-site Representative shall not be used for checking shop drawings. The Superintendent, the Design-Build Contractor's A/E of Record Representative, M/E/P Coordinator and the major Subcontractor's Superintendents shall be fluent in English. * * * 3.12.1 Shop drawing are drawings, diagrams, schedules and other data specifically prepared for the Work by the Design-Build Contractor or a Subcontractor, Sub- Subcontractor, . . . to illustrate some portion of the Work. The Design-Build- Contractor, Subcontractor, Sub- Subcontractor, . . . shall not use the Design-Build Contractor's A/E of Record contract drawings as shop drawings, but the Design-Build Contractor shall require these entities to produce and submit such documents independently. * * * 3.18.1 The Design-Builder shall negotiate a fair and equitable agreement with each of the Architect/Engineer consultants listed in the Design-Builder's response to the request for qualifications for this project. The Design-Builder may choose additional A/E consultants, for which prior written notice to Board shall be given, but shall not terminate or replace those A/E consultants originally designated without the prior written approval of the Board. When requesting termination or replacement of A/E consultants, the Design-Builder must submit the following items: Letter requesting written Board approval of the action, stating clearly the reason for such request and the proposed replacement A/E consultant(s). Signed and sealed or notarized release from the A/E consultant(s) being replaced or justification acceptable to the Board that such release is not obtainable. Federal Standard Form 255 and 254 of the proposed A/E consultant(s). Site specific professional liability insurance incorporating the proposed A/E consultant(s) in the policy. A hold harmless clause signed and notarized . . . . * * * 4.1.1 The Board's Representative (also referred to as the "Design Criteria Professional" or "DCP") will provide administration of the Contract as described in the Criteria Documents . . . * * * 4.2.6 The DCP will review and approve or take other appropriate action upon Design- Build Contractor's submittals, previously approved by the Design-Build Contractor's A/E of Record such as Shop Drawings, Product Data and Samples, for conformance with the information given and the design concept expressed in the Criteria Documents. . . . * * * 4.2.12 The Design-Build Contractor and Design-Build Contractor's A/E of Record shall provide DCP which will confirm completeness and correctness of same and forward to Board for Board's review and records, the written documents required by the Contract to be provided such as Warranties, Operation and Maintenance Manuals, as-built drawings, releases of claim and other documents required of the Contract. The DCP will process any pending Change Order requests and evaluate the assessment of liquidated damages, if any. Upon its determination that the Design-Build Contractor and Contractor[']s A/E of Record has fulfilled the requirements of the Contract, the DCP will issue a final Certificate for Payment. * * * A Subcontractor is a person or entity other than a materialman or laborer who enters into a subcontract with the Design- Build Contractor for the performance of any part of the Design-Build Contractor[']s Work. The term "Subcontractor" is referred to throughout the Contract as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor (sometimes referred to as a "third party contractor" ) or subcontractors of a separate (third party) contractor. A Sub-subcontractor is a person or entity other than a materialman or laborer who enters in to a sub-subcontract with a subcontractor for the performance of any part of such subcontractor's contract. The term "Sub-Subcontractor" is referred to throughout the Contract as if singular in number and means a Sub-subcontractor or any authorized representative of the Sub- subcontractor. The term "Sub-subcontractor" does not include separate subcontractors of a third party contractor. All Subcontractor's shall be licensed and/or certified as required by the Florida Building Code and state statutes. Separate permits may be required including but not limited to electrical, plumbing, mechanical, and roofing work. * * * As stated in the Instructions to Bidders, the Design-Build Contractor shall furnish in its proposal to Board the list of Subcontractors, Sub-subcontractors and materialmen (including those who are to furnish materials or equipment fabricated to a special design) proposed for each principal portion of the Work . . . . If Board has a reasonable objection to any proposed Subcontractor, Sub- subcontractor or materialman, Board will promptly notify Design-Build Contractor. The Design-Build Contractor shall not contract with any proposed Subcontractor, Sub-subcontractor or materialman to whom Board has made a reasonable objection pursuant to Subparagraph 5.2.2. If Board has a reasonable objection to a Subcontractor, Sub-subcontractor or materialman, the Design-Build Contractor shall propose another to whom the Board has no reasonable objection. A Subcontractor, Sub-subcontractor or materialman may be added to the list of Subcontractors, Sub-subcontractor[s] or materialmen if required for performance of Change Order Work. A listed Subcontractor, Sub-subcontractor or materialman may be changed only upon written approval of the Board. The request to change shall state reasons for the request and shall be accompanied by a signed and notarized release from the listed Subcontractor or Contractor's Affidavit to Board that such a release is not obtainable. * * * The General Requirements include Procedural Requirements, Subsections 2.03 and 9.01 of which provide as follows: 2.03 DESIGN-BUILDER ("D-B") D-B shall appoint its D-B Project Manager which is D-B's representative for the Project. The collective management of D-B services, including D-B'[s] architect, engineers and other consultants, is to be vested in D-B Project Manager. D-B Project Manager is the representative of D-B and all communications are to be through him/her to DCP and M-DCPS Project Manager. D-B Project Manager's role does not preclude the involvement of D-B's architect, engineers and other consultants. The architects, engineers and other consultants with responsibility for different aspects of the Project are to attend appropriate meetings but this must be coordinated with D-B Project manager. 9.01 PRE-CONSTRUCTION CONFERENCE Prior to beginning construction, DCP (through PM) shall schedule a Pre- Construction Conference. Ten (10) days notice is required for the meeting. At minimum, the following parties shall attend: DCP Team (DCP) Design-Builder Team (D-B) PM Major Subcontractors Region Superintendent Principal BCC Representatives Testing Lab Consultant HVAC Test & Balance Consultant H. Others as applicable. * * * Section 01012 of the General Requirements discusses the Project Architect. It provides as follows: PROJECT ARCHITECT (Also referred as Architect/Engineer of Record or D-B'[s] A/E. The Project Architect (A/E of Record) is a Principal, Partner, Agent, Subcontractor or Employee of the Design-Builder,[14] and is the person lawfully licensed to practice Architecture and Engineering or an entity lawfully practicing Architecture and Engineering identified as such in the Contract; and is referred to throughout the Criteria Documents as is singular in number. The term Architect/Engineer of Record means the Architect/Engineer of Record or its authorized representative. Whenever the terms Design-Builder's A/E or A/E is used throughout the Criteria Documents, it refers to the Project Architect. DUTIES AND RESPONSIBILITIES OF THE PROJECT ARCHITECT The Project Architect shall have all the duties and responsibilities established under the applicable State Statutes regulating the professions of Architects and Engineers. The Project Architect shall employ a Project Manager and necessary assistants, and shall be responsible for managing all design and production of Design and Construction Documents and the coordination of its implementation during the construction. The Project Architect shall review and approve or take other appropriate action upon Subcontractor submittals, such as Shop Drawings, Product Data and Samples prior to their submittal to the DCP for approval. The Project Architect shall consult with the DCP concerning all items related to the design and production of the Construction Documents. The Project Architect shall be responsible for the preparation of the Record Drawings. Prior to Design-Builder's request for determination by DCP of substantial completion, the Project Architect shall determine, on his/her own, that the Project has achieved substantial completion. The Project Architect shall inspect the work and provide, through the Design-Builder, a punchlist of all items to be completed or corrected. Upon receipt of request for determination of substantial completion from the Design-Builder, the DCP shall proceed to determine if the work is ready for inspection as provided under the General Conditions. All four remaining proposers, MCM, SBR, Pirtle, and Betancourt, submitted sealed bids. The bids were opened on December 17, 2002, and subsequently tabulated. MCM had the lowest "base bid" ($17,673,600.00). SBR had the second lowest "base bid" ($18,037,446.00). Betancourt's and Pirtle's "base bids" were $18,269,000.00 and $19,540,000.00, respectively. Following the tabulation of bids, School Board staff recommended to the members of the School Board that the contract for the Instant Project be awarded to MCM as the lowest bidder. On February 6, 2003, SBR, through counsel, filed a notice of protest with the School Board, which read as follows: This firm represents SBR Joint Venture, who as you know, has submitted a proposal for construction of the above-referenced [p]roject [the Instant Project]. It has come to our attention that MCM Corp. ("MCM") who submitted a proposal to provide design build services for the above- referenced project, must be disqualified from further consideration in connection with an award of the Project due to MCM's failure to comply with general requirements as promulgated by the Miami-Dade County Public Schools relative to the Project. Specifically, item I G of the General Requirements mandates that: " Any proposer, firm or company desiring to participate in this process must not have as a part of its team an A/E firm presently under contract with the Board for a specific project and a General [c]ontractor for the same project." As disclosed by MCM in its proposal to construct the [p]roject, MCM is currently performing substantial work connection with another project known as the Westview Middle School-remodeling and renovation ("Westview"). The architect under contract with the School Board regarding the Westview Project is LIVS and Associates. In conflict with the qualification general requirements, MCM's proposal to construct school MMM contemplates the formation of a design build team which will include LIVS and Associates, as its mechanical, electrical, plumbing and fire protection consulting engineers. As such, the proposal by MCM is violative of the requirements of design/build firms in order to qualify for the Project. Back-up documentation including, but not limited to, material portions of the request for qualifications and disclosures by MCM are attached for your review. Under the circumstances, we respectfully request that MCM be disqualified from performing any services in connection with [p]roject and the second [lowest] bidder, which is SBR Joint Venture, be awarded the Project. MCM responded to SBR's notice of protest by letter dated February 10, 2003, in which it argued that SBR's protest was without merit and "should be dismissed" and further stated, among other things, the following: The Contract documents permit[] the board to waive all irregularities. If the board were to consider that Ivan Rodriguez, Carlos Hevia and Blanca Bazan[15] misspoke on behalf of MDCPS when they approved LIVS as part of the MCM Design Build team, and or if the board were to consider the inclusion of LIVS as part of the Design Build Team as a conflict, then if that be the case, by this letter MCM hesitantly tenders substitution of LIVS (who has graciously agreed), with SDM Consulting Engineers, Inc., who is also fully qualified, has had extensive experience with DCPS and has agreed to take on the challenge. The members of the School Board were scheduled to vote at their February 12, 2003, meeting on staff's recommendation to award the contract for the Instant Project to MCM, but the "item [was] tabled" because of the pendency of SBR's protest. At the meeting, the School Board Attorney told the School Board members that he had "reviewed [SBR's] protest with staff and [they had] come to the conclusion that [they did not] agree with [SBR's] position," explaining, in part, as follows: The language [of paragraph G. of the General Requirements of the RFQ] is interpreted that if you have the A/E and the general contractor, who are under contract with the board on the same project, that is considered a conflict. In this particular instance, you have a third element here. One, is that the bonding company took over this project and the bonding company brought MCM in as a subcontractor, if you will, a completing contractor here in this particular instance. So, it was never the intent of this language to cover a situation other than one where you had both the A/E and the general contractor under contract with the board. Construing the language of paragraph G. of the General Requirements of the RFQ (which is not clear and unambiguous on its face) as not "cover[ing] [the] situation" present in the instant cases is not at all unreasonable. Because it has a contract with the Surety and not the School Board, MCM is not the Westview Project's "General contractor"16 as that term is typically used in the construction industry.17 Since there is no language manifest in the proposal/bid solicitation documents in evidence which compels the conclusion that, for purposes of the solicitation, this accepted industry meaning of the term was not intended, it is entirely appropriate to rely on this meaning and find, as did School Board staff, that MCM's role in the Westview Project does not disqualify its proposal from consideration under paragraph of the General Requirements of the RFQ.18 Moreover, even if it could not be reasonably disputed that MCM was the Westview Project's "General contractor" within the meaning of paragraph G. of the General Requirements of the RFQ (which, as noted above, is not the case), MCM's proposed use of LIVS on the Instant Project would still not, under every reasonable interpretation of the paragraph, create a "conflict of interest" of the type the paragraph prohibits. It is not beyond reason, particularly when the provisions of the Criteria Documents are considered19 (most significantly, Subsection 3.18.1 of the General Conditions and Section 01012 of the General Requirements), to conclude that an "A/E firm" on the design- build "team," within the meaning of paragraph G., does not refer to an entity, like LIVS, that is neither the design-builder seeking the contract for the Instant Project, a member of such a design-builder (where it is joint venture or partnership), the design-builder's proposed "Project Architect" as described in Section 01012 of the Criteria Documents' General Requirements (who is also referred to therein as the "Architect/Engineer of Record" or "A/E"), nor any other Architect/Engineer consultant with whom the design-builder intends to contract in accordance with the requirements of Subsection 3.18.1 of the Criteria Documents' General Conditions, but rather is merely a proposed MEP sub-subcontractor/sub-subconsultant (that is, a third-tier contractor). The evident purpose of paragraph G. of the General Requirements of the RFQ is to avoid a situation where a firm acting as the School Board's A/E of Record on another School Board project let under the "traditional bid contract scenario" is inclined to deal with the "General contractor" on that project in a lax manner compromising the School Board interests because of a relationship the firm has with that "General contractor" on the Instant Project.20 The chance of this happening if the firm were merely a third or lower tier contractor on the Instant Project would be remote, so remote that it is reasonable to believe (as John Pennington, the School Board's Director for Construction Compliance, who was "intimately involved in making [the language in paragraph G.] the final language," credibly testified) that it was not the School Board's intent, in including paragraph G. in the General Requirements of the RFQ, to eliminate a potential competitor based on this possibility.21 Had the School Board intended otherwise, it could have made its intent clear and unmistakable by having the first sentence of paragraph G. read as follows: "Any proposer, firm or company desiring to participate in this process must not propose to have working on the instant project in any capacity, including as a third or lower tier contractor, both a firm that is presently serving under a contract with the Board as the Board's A/E of Record on another project and a firm that is a General contractor for that same project." It did not do so, however. Instead, it used language in paragraph G. reasonably susceptible to the interpretation that, under this provision, proposing to use as an MEP sub-subcontractor/sub- subconsultant on the Instant Project a firm that is the School Board's A/E of Record on another project does not disqualify a proposer even if the proposer is the "General contractor" for that other project. Following the School Board meeting, SBR, on February 16, 2003, filed its formal written protest of the intended decision to award the contract for the Instant Project to MCM. On February 18, 2003, Fernando Munilla sent a letter to School Board member Dr. Marta Perez, which read, in pertinent part, as follows: MCM has been informed that unfortunately MCM's response to SBR's bid protest was not provided to you prior to the February 12, 2003, Board meeting. We enclose same for your ready reference. We respectfully request you inquire on the particulars raised in our letter, and if you agree with your staff's recommendation (that SBR's alleged irregularity in MCM's bid lacks [sic] merit), then we ask you move the Board to exercise its right to waive the alleged irregularity, as permitted by the bid documents under section 00100 page 4 subsection 2.7.1 in order that MCM continue to work on the project. On March 4, 2003, the School Board Attorney sent a memorandum to the Superintendent of Schools advising that upon further review of the matter he had changed his opinion and was now of the view that SBR's protest had merit, explaining in the memorandum as follows: This specification [paragraph G. of the General Requirements of the RFQ] prohibits a proposer from having as a part of its Design-Build team an Architect/Engineer (A/E) firm who is under contract with the Board for a specific project and General Contractor for the same project. The specification provides that the Board considers this a conflict of interest and such proposals would not be considered for award of the contract. MCM submitted a proposal which has LIVS [and] Associates, an A/E firm under contract for the Westview Middle School project as part of its team. MCM is the General Contractor on the Westview Middle School project under a contract with the surety company to complete the project as the completing contractor. MCM contends that in view of the fact that they are the completing contractor and are not in direct contract with the Board for the project, this particular provision should not apply. We disagree. The particular specification in question does not specify or require that the general contractor for the same project be under contract with the Board. Conflict exists by virtue of the fact that the A/E, acting on behalf of the Board for the Westview Project, has to inspect and review the work of MCM and, with this proposal, will be in business with MCM on another Board project. Accordingly, MCM's proposal should not have been considered for award. While it is true that, in paragraph G. of the General Requirements of the RFQ, the School Board did not include the words "under contract with the Board" after "General contractor," if it intended that "General contractor," as used in paragraph G., have the same common meaning as the term has in the construction industry (and there is no language in the proposal/bid solicitation documents in evidence compelling the conclusion that it did not have such an intent), these additional words would have been redundant because, as noted above, a "General contractor," as that that term is typically used in the construction industry, is necessarily one who is "under contract" with the owner. Furthermore, contrary to the suggestion made by the School Board Attorney in his March 4, 2003, memorandum, under MCM's proposal, MCM and LIVS would not have a direct business relationship22; rather, LIVS would be doing business with PJB.23 While LIVS' participation (as a third-tier contractor) in the Instant Project with MCM may create a potential "conflict" for LIVS, this potential "conflict," at least arguably, is not the type that is prohibited by paragraph G. of the General Requirements of the RFQ. On March 11, 2003, MCM and PJB sent the following letter to the School Board: This letter will serve as our formal request to replace the engineering firm of LIVS originally selected for State School MMM [with] SDM Consulting Engineers in which MCM's architect of record, PJB Associates, P.A., had entered LIVS as their mechanical and electrical consultants for the above referenced project [the Instant Project]. Even though we consider LIVS to be an excellent engineering firm, d[ue] to an alleged conflict of interest that is said to exist, we are respectfully requesting replacement to prevent controversy.[24] We also request that you submit this to M- DCPS's Legal Department to verify if there is any conflict; and if so, we respectfully request a written reply. In the absence of a reply within the next three working days, we will assume that this issue has been resolved. Thank you in advance for your attention. Also on March 11, 2003, MCM, anticipating that it would not be awarded the contract for the Instant Project, sent the School Board another letter, which read as follows: This letter will serve as notice of the intent of Magnum Construction Management Corporation (MCM) to protest any decision of the Miami-Dade County School Board to reject all bids on the Miami-Coral Park Project. Based on information obtained to date, MCM will assert that the decision to reject all bids is based on the false assumption that under the terms of the Request for Qualifications, MCM was disqualified to bid on the Miami-Coral Park Project and that bids on the project were over budget. MCM will assert that it was qualified to bid on the project and that its bid was responsive and within the budget. MCM subsequently filed a formal written protest and an amended formal written protest. On March 12, 2003, the Design Criteria Professional for the Instant Project sent a letter to Ms. Bazan advising her that the three lowest bids submitted for the Instant Project "were within the budget of $17,473,891.36," and that the two lowest bids, those submitted by MCM and SBR, were "substantially below the State of Florida allowable cost per student station under the Smart Schools Clearinghouse." On March 26, 2003, the School Board referred SBR's and MCM's formal written protests to DOAH. A day later, it referred MCM's amended formal written protest to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order rejecting SBR's protest and awarding the contract for the Instant Project to MCM. DONE AND ENTERED this 1st day of August, 2003, in Tallahassee, Leon County, Florida. S 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 1st day of August, 2003.
The Issue Whether Respondent has reason to reject the bids submitted by Petitioner to provide landscape maintenance services at two schools (item number 3 and item number 43 of the Invitation To Bid numbered SB 96C-56Z) based on Petitioner's performance of similar contracts in prior years.
Findings Of Fact On June 15, 1995, Respondent issued its Invitation To Bid number SB 96C-56Z (ITB) for landscape maintenance services to be rendered at various schools in the Palm Beach County district school system. Item 3 of the ITB was for landscape maintenance services at Bears Lake Middle School and item number 43 was for landscape maintenance services at Santaluces High School. The contracts for the various schools are awarded for a term of one year through the bid process, with the contract for the subject ITB to be for a term beginning July 21, 1995, and ending July 20, 1996. Similar ITBs for similar services have been issued by Respondent for each prior year that is pertinent to this proceeding. After the bids were opened, it appeared that Petitioner was the low bidder for items 3 and 43. Respondent rejected the bids of Petitioner for these two items and asserted, based on Petitioner's prior performance of similar contracts, that it would not be in the best interest of the School District to award items 3 and 43 to Petitioner. Petitioner thereafter timely protested the bid process for items 3 and 43, the matter was referred to the Division of Administrative Hearings, and this proceeding followed. The award of contracts by the Respondent for items 3 and 43 has been halted pending resolution of this proceeding. Petitioner has been in the landscape business for approximately ten years. For a number of years, Petitioner has been awarded contracts following an invitation to bid similar to the one at issue in this proceeding. The number of schools awarded to Petitioner has varied from "a few" to 22 in one year. Petitioner was awarded contracts for several schools for the 1994 contract term that the instant bid process is to replace. Petitioner was unable to perform the work at all the schools that it was awarded and surrendered its rights to some of those schools. Petitioner retained its contract for several other schools. The work Petitioner performed on the schools it retained was not acceptable to the Respondent. The record is replete with notices to the Petitioner stating its work was not acceptable and describing the noted deficiencies. Several of these letters threaten to terminate contracts that had been awarded to the Petitioner. Petitioner asserts that its problems with the Respondent are the product of unreasonable inspections of its work by Joe Lawson and Tom Williams, who were hired after Petitioner started working on schools. Petitioner has filed complaints against with the Respondent against Mr. Lawson and Mr. Williams on two separate occasions which purport to document the Petitioner's mistreatment by these two employees. Petitioner's assertions pertaining to these two inspectors are not based on persuasive, competent evidence and are, consequently, rejected. Petitioner also argues that it has received no more notices of complaints than other providers when the number of schools are considered. This is contrary to the more believable testimony, which established that Petitioner received more complaints. Lee Ziomek is a buyer employed by Respondent who has extensive experience in public procurement. Steve Zwirz is a landscape site technician whose duties include technical writing, supervising contracts, and supervising personnel. Joe Lawson is Mr. Zwirz's supervisor. Following the opening of bids, Mr. Ziomek, Mr. Zwirz, and Mr. Lawson met to review Petitioner's past performance. As a result of this meeting, it was decided to recommend that Petitioner had not performed its past contracts in an acceptable manner and that it was not in the best interest of the School District to award these two contracts to the Petitioner. The numerous notices of deficiencies that had been documented by Respondent provided a reasonable basis to conclude that awarding these bids to the Petitioner was not in the best interests of the School District. The first page of the ITB form used by Respondent contains the following: AWARDS: In the best interest of the School Board, the Board reserves the right to reject any and all bids . . .
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order that sustains the rejection of Petitioner's bids as to items 3 and 43 of ITB SB 96C-56Z and dismisses Petitioner's bid protest. Respondent's evaluation committee should resume the award process for items 3 and 43 of ITB SB 96C-56Z. DONE AND ENTERED this 23rd day of October, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 23rd day of October, 1995. COPIES FURNISHED: J. Steven Reynolds, Esquire 2628 Forest Hill Boulevard West Palm Beach, Florida 33406 Robert A. Rosillo, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813 Dr. C. Monica Uhlhorn, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813 Cynthia S. Prettyman, General Counsel Palm Beach County School District 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813
