Findings Of Fact On five dates in June and July, 1988, Respondent advertised in The Orlando Sentinel newspaper its Invitation to Bid for the project known as High School "BB." The advertisement announced that bids would be received at 2:00 p.m. on August 4, 1988, at which time all bids would be publicly opened. The advertisement stated that Respondent reserved the right to waive irregularities. The Invitation to Bid stated that bids received after the deadline "will be returned unopened" and bids "received on time" will be opened publicly. The Invitation to Bid also stated: "The Owner reserves the right to waive any informality or irregularity in any bid received when such a waiver is in the best interest of the Owner. The contract would be awarded, according to the Invitation to Bid, within 45 days after the opening of bids. The location designated for the opening of the bids was the Facilities Services building located at 6200 Chancellor Drive, Orlando, Florida. The bids were opened in a conference room within the building. Robert Gallardo, who is Respondent's Director of School Planning and Construction, was in charge of the bidding process. Mr. Gallardo has been in this position for six years. During this time, he has been responsible for the majority of school construction bids for Respondent. He estimates that he has supervised ten such bids. On August 4, 1988, Mr. Gallardo worked in his office in the Facilities Services building until 1:55 p.m. At that time, he asked his secretary if the bid tabulation forms had been prepared, and, with the forms, he left his office for the conference room where the bids were to be opened. Mr. Gallardo entered the conference room, which was occupied by a number of bidders' representatives, at 1:58 p.m., according to the clock on the wall. At a few seconds before 2:00 p.m., he first spoke, asking that all bids be handed in. He then asked his secretary to call the front desk to see if any bids had been turned in there and needed to be brought down the hall into the conference room. This was a normal procedure. In past bids, some bidders left their bids with the receptionist at the front desk. Prior to obtaining any response from his secretary who was talking on a phone in the conference room, Mr. Gallardo announced his name and position and announced that he was going to open bids. He then picked up a sealed bid from the pile of sealed bids in front of him. As he was about to open the envelope, at or about 30 seconds past 2:00 p.m., a man entered the conference room and said that he had a bid to deliver. The man disclosed the bidder which he represented, but Mr. Gallardo did not clearly hear the name and did not know whose bid was being offered to him. Mr. Gallardo accepted the bid and placed it at the bottom of the pile. The late bid was from Intervenor. A few seconds after it was accepted Mr. Gallardo opened the first bid. A few seconds after that, another man entered the conference room and attempted to deliver a bid. Mr. Gallardo refused to accept the bid because, as he explained, the first bid had already been opened. Mr. Gallardo's practice has consistently been to accept late bids, provided they are delivered prior to the opening of the first bid. Mr. Gallardo had not previously known of Intervenor, which had never previously even submitted a bid on a school job being let for bid by Respondent. Mr. Gallardo's only prior contact with Intervenor's representative who delivered the bid was seeing the man in the building, along with other bidders' representatives, prior to the opening of the bids; however, Mr. Gallardo did not know who the man represented. There was no fraud or collusion in the acceptance of the late bid. There was no evidence that, under the facts of this case, Respondent abused its discretion in accepting Intervenor's late bid. Petitioner's bid was lowest among the bids delivered prior to 2:00 p.m. However, Intervenor's bid was over $500,000 lower than Petitioner's bid on a project costing in excess of $25 million. Respondent has confirmed Mr. Gallardo's decision not to reject Intervenor's bid as late. On August 16, 1988, Respondent published the agenda for the next school board meeting, which was scheduled for August 23, 1988. One of the items to be taken up was the award of the contract for High School "BB." By letter dated August 18, 1988, Petitioner declined Respondent's invitation to participate in what the parties referred to as an informal hearing at the August 23 school board meeting. Threatening unspecified sanctions under state and federal law if Respondent awarded the contract at the August 23 meeting, Petitioner demanded a formal hearing and asserted that the bidding process should be stayed until resolution of the protest, under Section 120.5361 [sic -- apparently referring to Section 120.53(5)(c)]. By memorandum dated August 23, 1988, Respondent's attorney opined that Rule 6A-2.016(7) did not require Respondent to utilize the Section 120.53(5) bid protest procedures, but, out of an abundance of caution and in the interest of expediting resolution of the dispute, recommended the referral of Petitioner's protest to the Division of Administrative Hearings. By letter dated August 23, 1988, Respondent referred the protest to the Division of Administrative Hearings for a formal hearing.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the bid protest of Petitioner. DONE and RECOMMENDED this 15th day of September, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4078BID Treatment Accorded Petitioner's Proposed Findings of Fact 1. Adopted except to the extent that "timely" implies that Intervenor's bid was improperly accepted. Such an implication is rejected as legal argument. 2 and 4. Adopted in substance. 3. Rejected as irrelevant. 5-7. Rejected as not findings of fact except that the inference of Intervenor's efficient utilization of time following the deadline is rejected as unsupported by the evidence and irrelevant. 8-9. Adopted to the extent relevant. 10-11. Rejected as irrelevant. 12-15. Rejected as subordinate to the procedures set forth in the Invitation to Bid and advertisement, especially concerning the waiver of irregularities. First sentence adopted. Second sentence rejected as recitation of testimony through semicolon and irrelevant as to remainder except that the basis for Mr. Gallardo's decision is adopted and modified to add that he accepted the late bid in accordance win his past practice. Petitioner proved all of the facts in this proposed finding except that it could have used effectively any additional time. In any event, all of the facts in this paragraph are irrelevant and are rejected for this reason. The theory of Petitioner's case, as well as the evidence that it offered, was that in this and every other major bid, the last minutes before the deadline are critical due to the unwillingness or inability of subcontractors to supply critical numbers substantially before the deadline. This theory proves too much because, if true, the Hewitt court would have been constrained to consider such a universal fact and thereby would have prevented the agency in that case from accepting the late bid. The Hewitt case stands for the proposition that, in general, an agency may accept late bids before the first bid is opened. It is incumbent upon a frustrated bidder to show that the agency abused its discretion, under the circumstances of the individual case. Petitioner has in essence suggested that the burden is upon the agency to show that it did not abuse its discretion, at least once the frustrated bidder shows that it spent a lot of time and money in preparing its bid and could have used more time. To the contrary, Hewitt tells the frustrated bidder that it must find evidence of impropriety, such as fraud or collusion, in the agency's acceptance of the late bid. This mandate is especially clear in light of the recent Groves-Watkins decision. 18-19 and 22. Rejected as irrelevant. See Paragraph 17. Adopted. 20A-20F. Rejected as legal argument. First sentence rejected as subordinate and recitation of testimony. Second sentence rejected as speculative. Rejected as speculative and unsupported by the evidence. Rejected as irrelevant and unsupported by the evidence. 24A-27. Rejected as legal argument. Adopted in substance. Rejected as not finding of fact. Treatment Accorded Respondent/Intervenor's Joint Proposed Findings of Fact 1-2. Adopted. 3-4. Rejected as not finding of fact. 5-6. Adopted in substance. Rejected as irrelevant. 8. Adopted in substance. 9-12. Adopted in substance except that Mr. Gallardo did not arrive in the conference room "several minutes" before 2:00 p.m. and Intervenor's representative arrived about 30 seconds after 2:00 p.m. 13. Rejected as irrelevant. 14-15. Adopted in substance. Rejected as unnecessary. Adopted. Rejected as irrelevant. See Paragraph 17 in Petitioner's proposed findings. COPIES FURNISHED: Joseph G. Thresher, Esquire Dykema Gossett Ashley Tower Suite 1400 100 South Ashley Drive Post Office Box 1050 Tampa, Florida 33601-1050 William M. Rowland, Jr., Esquire Rowland, Thomas & Jacobs, P.A. 1786 North Mills Avenue Orlando, Florida 32803 Scott H. Johnson, Esquire Maguire, Voorhis & Wells, P.A. Two South Orange Avenue Orlando, Florida 32801 James L. Schott Superintendent Orange County Public Schools Post Office Box 271 434 North Tampa Avenue Orlando, Florida 32802 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
The Issue The issue is whether Respondent Brenda Bohlinger’s conduct constitutes just cause for her dismissal from employment with Petitioner Polk County School Board (School Board).
Findings Of Fact The School Board is duly constituted and charged with the duty to operate, control, and supervise all free public schools within Polk County, Florida, pursuant to article IX, section 4, subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Bohlinger was employed by the School Board as a teacher pursuant to a professional services contract. She has been employed with the School Board for approximately 13 years. During the 2015-2016 school year, Ms. Bohlinger was an itinerant physical education (PE) teacher for the Reaching Every Adolescent Learner Academy (the REAL Academy). Ms. Bohlinger began her responsibilities as the itinerant PE teacher on October 16, 2015, and was relieved of her duties on March 7, 2016. The REAL Academy is a dropout prevention program created for students in fourth through 12th grades who are two or more years behind academically. The REAL Academy was started in and for the 2015-2016 school year and uses a modified educational curriculum which allows students to catch up academically and graduate on time. There are four separate locations in Polk County that house components of the REAL Academy: Auburndale High School (Auburndale), which is located in Auburndale, Florida; the Dwight Smith Center (Smith Center), which is located in Lakeland; the Gause Academy, which is located in Lakeland; and Boone Middle School (Boone), which is located in Haines City. Ms. Bohlinger’s school duty day began at Auburndale where she would teach two separate PE classes. Her first class started at 7:55 a.m. and her second class ended at 9:42 a.m. Ms. Bohlinger then left Auburndale and drove to the Smith Center where she taught two more PE classes. It took approximately 28 to 33 minutes to travel from Auburndale to the Smith Center. Ms. Bohlinger’s first class at the Smith Center started at 10:20 a.m. and her second class ended at 12:37 p.m. After the second class ended at the Smith Center, Ms. Bohlinger would drive to Boone where she taught two more PE classes. Ms. Bohlinger’s first class at Boone started at 1:53 p.m. and her last class of the day ended at 3:40 p.m. When Ms. Bohlinger had the Boone students at PE class, the Boone teachers would have their allocated planning period. In the event Ms. Bohlinger did not provide a PE class, the Boone teachers did not have a daily planning period. School employees who travel from one teaching location to another teaching location are compensated for their mileage at a specified rate.2/ Each traveling employee is responsible for completing a mileage reimbursement form (form). The completed form is submitted to the employee’s immediate supervisor, who reviews and approves it, and then submits it to the district for processing. When she was first hired for the REAL Academy, Ms. Bohlinger asked Robert Hartley, the initial REAL Academy principal/director for instructions on how to complete the form. Mr. Hartley was unable to provide that instruction and Ms. Bohlinger obtained the instructions on how to complete the form from School Board personnel. At the end of each calendar month, Ms. Bohlinger completed the mileage reimbursement form for her trips between Auburndale, the Smith Center, and Boone. The distance claimed between the three learning centers is 32 miles, which was not contested. It took approximately 30 minutes to travel from Auburndale to the Smith Center, and approximately 40 minutes for Ms. Bohlinger to travel from the Smith Center to Boone. The School Board’s reimbursement rate is $.575 per mile. During the 2015-2016 school year, Principal Wilson was a “resource teacher,” working mainly at Auburndale and Boone. He oversaw the REAL Academy programs at those locations, and reported to Mr. Hartley. At some time after the middle of the 2015-2016 school year, Principal Wilson researched information as to any dates that Ms. Bohlinger missed PE classes for all or part of a school day. Principal Wilson identified seven3/ dates that Ms. Bohlinger was not at Boone. They are: November 3, 2015 The first quarter grades were past due. Ms. Bohlinger had started late in the quarter; however, it was determined that she would assign first quarter PE grades to the REAL Academy PE students. Ms. Bohlinger was told she had to enter the grades for her students that day. Principal Wilson’s “understanding” was that Ms. Bohlinger’s grading “would be done in Lakeland at the Dwight Smith Center.” Principal Wilson did not see Ms. Bohlinger at the Smith Center, and did not know when or where she entered the grades. Principal Wilson maintained that Ms. Bohlinger did not go to Boone on November 3, because he had to calm Boone teachers that it was not Ms. Bohlinger’s choice to miss PE, but that she was required to enter grades.4/ Ms. Bohlinger was at the Smith Center (her second school), when she was told she had to assign PE grades to the students. Ms. Bohlinger had to wait for Gwen Porter, a guidance counselor, to assist her because Ms. Bohlinger did not have access to a computer. The two women started working on the grades after 1:00 p.m. and she completed entering the grades prior to 3:00 p.m. Ms. Bohlinger testified she traveled to Boone after she finished with the grading. However, with the allocated time to make the trip, approximately 40 minutes, there was not sufficient time to arrive at Boone to conduct the last PE class of that day. There was no testimony that Ms. Bohlinger actually conducted a PE class at Boone on that day. Ms. Bohlinger’s testimony is not credible. December 2, 2015 A district level/REAL Academy meeting (district meeting) was scheduled for two locations (Boone before school started and the Smith Center in the afternoon) in an effort to have as many participants as possible. Ms. Bohlinger learned of the district meeting either the Friday or Monday before the Wednesday district meeting. Ms. Bohlinger was to attend the meeting at the Smith Center in Lakeland. Ms. Bohlinger “forgot” about the district meeting and “out of habit,” she went from Auburndale to the Smith Center and then on to Boone. Only after she got to Boone did she “realize” there was a district meeting, and she then returned to the Smith Center. Ms. Bohlinger claimed she made a “mistake” in traveling to Boone on December 2, 2015. Ms. Bohlinger’s mileage claim was inappropriate because she did not fulfill any PE teaching responsibilities at Boone. January 4, 2016 Following the winter holiday, the first school day for students was January 4, 2016. Ms. Bohlinger worked at Auburndale, the Smith Center, and then traveled to Boone. After resting in her car at the Boone location, Ms. Bohlinger called Principal Wilson, told him she was ill, and would be going home. Principal Wilson recalled that Ms. Bohlinger called him, said she was ill and would not finish out the school day. Principal Wilson thought Ms. Bohlinger was calling from her car, but he was uncertain of where she was at the time. Ms. Bohlinger’s explanation is credible. January 5, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 5, 2016. January 6, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 6, 2016. February 1, 2016 Ms. Bohlinger traveled to her three assigned schools. However, she drove to Boone, the check engine light came on in her car. After she arrived at Boone, she contacted Principal Wilson and asked if he was on the Boone campus. Upon understanding that Principal Wilson was not on the Boone campus, Ms. Bohlinger proceeded to inform him of her car issue, and that she was leaving to attend to her car. Ms. Bohlinger may have driven to Boone, but she did not teach her classes on the Boon campus. Ms. Bohlinger should not have claimed mileage for February 1, 2016. Respondent’s Prior Discipline On May 3, 2013, Ms. Bohlinger had a conference with Faye Wilson, the principal at Jesse Keen Elementary School. As a result of that meeting, Ms. Bohlinger was issued a verbal warning with a written confirmation regarding several instances when Ms. Bohlinger left the school campus before the end of her contractual day. On October 12, 2015, Ms. Bohlinger was suspended without pay for two days (Friday, October 9, 2015, and Monday, October 12, 2015). This suspension was the result of an investigation, to which Ms. Bohlinger “admitted that [she] had ‘peeked in on and listened to’ mental health counseling sessions with students, in which a student’s private information was discussed.”5/ Following the discipline listed in paragraph 15 above, Ms. Bohlinger was assigned to be the physical education teacher for the REAL Academy effective October 13, 2015. The testimony and exhibits establish that on five days Ms. Bohlinger submitted requests for mileage reimbursements to which she was not entitled. Ms. Bohlinger’s explanation that she felt ill and had to leave after arriving at Boone on January 4, 2016, is found to be credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order terminating Ms. Bohlinger’s employment. DONE AND ENTERED this 28th day of November, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 2016.
Findings Of Fact Background And Overview Respondent was first employed by Petitioner, School Board Of Palm Beach County, Florida (the "School Board"), in 1964 as a teacher. Respondent was promoted to principal in 1971, Assistant Superintendent for the School Board in 1978, and Associate Superintendent of Schools for Planning and Operations on July 1, 1984. Respondent was one of three Associate Superintendents in the Palm Beach County school district. There was also an Associate Superintendent of Instruction and an Associate Superintendent of Administration. Each Associate Superintendent reported to the Deputy Director who reported to the Superintendent. Respondent served as Associate Superintendent of Planning and Operations until he was demoted to principal on November 5, 1991. Respondent served under an annual contract as an Associate Superintendent and maintains a continuing contract as a teacher. While employed as an Associate Superintendent, Respondent never received notice of an allegation of incompetent conduct, was never disciplined, and never received a negative performance evaluation prior to this proceeding. In the Summer of 1991, Respondent was a finalist for the position of Superintendent. The position of Associate Superintendent of Planning and Operations was subsequently abolished effective July 1, 1992. Planning And Operations: Organization And Regular Duties The organization of Planning and Operations has changed in specific regards during the years Respondent was its Associate Superintendent. 1/ For the purposes of this proceeding, however, Planning and Operations employed approximately 1,500 people and was organized and operated in three subdivisions: Growth Management; Facilities Planning and Management; and Personnel Relations. Personnel Relations is not at issue in this proceeding. 2/ Growth Management responsibilities included: identifying school district demographics; determining racial balance; and site acquisition for development of schools and other facilities. Facilities Planning and Management responsibilities included: building new schools; renovations; improvements; and maintenance. Each of the three subdivisions of Planning and Operations was supervised directly by an Assistant Superintendent. The Assistant Superintendents supervised one comptroller and nine directors. Directors had direct responsibility for assistant directors. Assistant directors supervised first-line managers. First-line managers supervised numerous employees who regularly worked on: major school center projects; new school construction; facility design and contract services; facility operations; maintenance and renovations; personnel administration; information management; recruitment and selection; and human resources. Additional Duties In addition to their regular duties, Respondent and other senior administrative supervisors were required by Mr. Thomas Mills, the former Superintendent, to promote and solicit the involvement of members of the local business community in the Palm Beach County school system. The school system faced student overcrowding, a lack of materials, a lack of adequate funding, and a rising drop out rate. Members of the business community were recruited to help raise money for operating expenses and to support a bond issue for which the School Board sought voter approval in 1986. Many members of the local business community were also vendors to the School Board. Respondent was directed by former Superintendent Mills and Dr. James Daniels, the Deputy Superintendent, to contact and network with as many members of the business community as possible. Such activities were considered by former Superintendent Mills to be a high priority. Respondent complied with the directives of the former Superintendent and Deputy Superintendent. The efforts of Respondent and other senior managers proved successful. The business community in Palm Beach County raised funds to supplement the operating expenses of the school system and supported a bond issue for construction of new facilities and capital improvements to existing facilities. In 1986, the majority of registered voters in Palm Beach County approved a Special Referendum authorizing a $678 million bond issue for the construction of educational facilities in the Palm Beach County School District. The School Board established a five year plan for the construction of educational and ancillary facilities (the "five year construction plan"). A portion of the bond money was allocated to capital improvement projects to renovate or remodel existing facilities. Planning and Operations supervised all bond issue projects, including capital improvement projects. In the 1986- 1987 school year, such projects, including capital improvement projects, were supervised by the division of New School Construction. In the Fall of 1987, supervision of capital improvements was transferred to Maintenance and Renovations. Maintenance and Renovations was also organized within Planning and Operations. Approximately 39 new schools were constructed in Palm Beach County while Respondent was Associate Superintendent of Planning and Operations. The total budget for construction of new schools was approximately $550 million. Thousands of construction projects, renovations, and improvement or maintenance projects were performed by Planning and Operations. Approximately $317 million of the authorized bond issue was issued from 1987 through 1989. In addition to the construction of new schools, the School Board approved a plan in 1985 to acquire land and construct four ancillary facilities. The ancillary facilities included a new administrative complex, a central warehouse, and a maintenance and operations facility. Planning and Operations supervised the site acquisition and construction of all four ancillary facilities. Deficiencies In Planning And Operations Deficiencies in the organization and operation of Planning and Operations were well known to both the School Board and Planning and Operations personnel. They were pandemic deficiencies that Respondent could not correct without the approval and financial support of the School Board and the technical assistance of experts. 3/ The School Board retained an outside consultant, Price Waterhouse, to study deficiencies in Planning and Operations and to formulate an improvement program. The improvement program was to be developed in three phases. The first phase identified deficiencies within Planning and Operations on the basis of discussions with department personnel and outside specialists. The second phase would have focused on verifying and prioritizing problems and their impacts. The third phase would have formulated a program for improvement of Planning and Operations. Deficiencies in Facilities Planning and Management were identified in interviews conducted by the accounting firm of Price Waterhouse with directors, assistant directors, and first- line managers. In 1987, Price Waterhouse issued a draft report to the School Board describing the deficiencies found in Facilities Planning and Management (the "Price Waterhouse Report"). 4/ The School Board determined that the Price Waterhouse Report merely told the School Board what was already common knowledge and that further expenditures on a program for improvement with Price Waterhouse would be a waste of money. The School Board knew of the deficiencies in Planning and Operations. The School Board knew that those deficiencies created impediments to the supervision of Planning and Operations. Known deficiencies within Facilities Planning and Management involved: financial procedures and controls; staff performance, including personnel and control; planning of operations and projects; contract administration; construction administration; and organization structure. Deficiencies in financial procedures resulted in budgeting without adequate preparation, historical data, timing, and coordination between departments. Poor cost and schedule accounting for capital improvements, maintenance, and operations made it difficult to capture and report cost information in sufficient detail and in a timely manner. Poor cost controls directly affected the control of operations, decisions to perform work by in-house staff or contractors, and the value received for money spent. Adequate project management tools and policies were not in place to contain costs and adhere to schedules for maintenance, capital improvements, and new construction. Payment of suppliers, contractors, architects, and other vendors was slow, frustrated vendors, and made them reluctant to do work for the School Board. There were deficiencies in staff performance, personnel, and control. Productivity appeared to be low. There was a lack of performance measurement and reporting mechanisms in place to accurately assess productivity. Productivity was significantly affected by: inadequate work planning and coordination; the condition and availability of equipment and materials; logistics; and geographic constraints. Many employees were uncertain as to their responsibilities and corresponding authority, particularly at the first-line manager level. Uncertainty over responsibility and authority undermined the effectiveness of first-line managers dealing with vendors, contractors, and architects. Staffing levels and management span were not adequate to maintain existing facilities and operations, control personnel growth, and prevent duplication of field personnel skills between maintenance and capital improvements. Support resources were weak in technical expertise, administrative staff, reference materials, and computer aided design equipment. Capital improvement, new construction, and maintenance tasks were frequently not scheduled in sufficient accuracy and detail to foresee and anticipate potential problems. Frequent schedule slippage allowed contractors less time to complete construction and meet schedules; adversely affecting productivity, project costs, and the ability to plan for and manage project issues and achieve targeted completion dates. Shortages of materials and supplies often caused project delays. Coordination of work between and within departments failed to determine the optimal sequence in which work was to be performed to maximize the utilization of trade employees and avoid conflicts and rework. Deficiencies in contract administration led to lack of clarification in the responsibilities, requirements, and expectations of parties to contracts. Contract documents and conditions were too vague and resulted in frequent disputes, delays, and occasional change orders. To avoid delays caused by change orders, contractors sometime proceeded without proper authorization at their own risk. The definition of authority and responsibility and the guidelines for quality control and inspection for in-house employees and contractors needed to be improved. Such deficiencies in construction administration resulted in project delays, poor construction, and higher facility life cycle costs. A lack of consistency in procedures and policies for project management exacerbated the deficiencies in construction administration. Deficiencies in organization structure directly affected problems in other areas of Planning and Operations. Continuity of work was lacking on new construction. Project managers changed when responsibility passed from one division to the next; resulting in a start-stop effect on the project and a loss of specific project knowledge. Improvement was needed in communications between and within departments and in upper management support of lower management authority. There was a need for a long range organization structure and staffing strategy which addressed alternatives such as internal staffing and contracted services. The presence of deficiencies described in the Price Waterhouse Report in 1987 was confirmed in 1993 in a Report On Audit Of The Palm Beach County District School Board For The Fiscal Year Ended June 30, 1992 Dated: June 24, 1993 issued by the State of Florida, Office Of The Auditor General (the "Auditor General's Report"). The Auditor General's Report found that deficiencies similar to those described in the Price Waterhouse Report for Facilities Planning and Management also existed in Growth Management. Problems reported in the Price Waterhouse Report and in the Auditor General's Report described a deficient organizational and operational system in which the School Board required Respondent to supervise unprecedented growth and activity. Respondent was required to: supervise a $550 million construction plan involving thousands of projects and four ancillary facilities; 5/ promote involvement of the business community in the school system; and perform the duties he was otherwise required to perform in the absence of the five year construction plan established by the School Board and associated promotional responsibilities. In 1987, the Price Waterhouse Report stated that supervisors and assistant directors were stretched very thin, and their roles needed to be more clearly defined. Communication between and within departments and from directors and similar supervisors was poor. 6/ Many of the deficiencies described in the Price Waterhouse Report and the Auditor General's Report created impediments to Respondent's supervision of Planning and Operations irrespective of his additional duties associated with the five year construction plan. Petitioners' Allegations Petitioners' allegations against Respondent are based on two separate investigations conducted by Petitioners. 7/ Petitioners' allegations involve: acquisition of a site for a central warehouse for $3.161 million (the "District Warehouse Site"); acquisition of a site for a west bus compound for $750,000 (the "West Bus Compound"); construction of an addition to a new maintenance and operations building on Summit Boulevard in West Palm Beach for Maintenance and Renovations and Facility Operations and construction of an addition to a north maintenance building (the "Summit Facility"); requests for additional services on form G-604 (the "G-604" issue); acceptance of gratuities from members of the business community who were also vendors of the School Board; and evaluation of two employees. Petitioners' allegations of incompetency primarily involve the five year construction plan and ancillary facilities. Few of the alleged acts of incompetence involve other aspects of Respondent's job performance from July 1, 1984, through November 5, 1991. The District Warehouse Site The School Board determined in 1985 that a need existed for a centralized warehouse site in Palm Beach County. 8/ The School Board determined that approximately 10 acres would be adequate. Since the value of land in Palm Beach County was appreciating, the School Board also approved the policy of former Superintendent Mills that encouraged the acquisition of land for future expansion if the land could be acquired at a desirable price, i.e., "warehousing" land for future use. Respondent had advocated a decentralized warehouse system in which separate warehouse functions would be carried out in various regions of Palm Beach County. Others in Planning and Operations supported the concept of a centralized warehouse site. The centralized warehouse concept was accepted and approved by former Superintendent Mills and the School Board. On October 11, 1989, the School Board purchased approximately 16 acres of real property as a site for a centralized district warehouse. The property was purchased for $3.161 million from KEI Palm Beach Center, Ltd. ("KEI"), a limited partnership in which Mr. William Knight was a limited partner and Knight Enterprises, Inc., a corporation controlled by Mr. William Knight, was the general partner (the "Knight property"). Respondent did not act incompetently and did not violate any statute, rule, policy, instruction, or directive, or circumvent normal acquisition procedures (collectively referred to hereinafter as "applicable standards") with regard to the evaluation and purchase of the Knight property. Respondent neither proposed nor advocated the purchase of a particular warehouse site. Respondent did not propose or advocate the identification, evaluation, selection, and purchase of the Knight property. Respondent showed no favoritism to Mr. William Knight, to his son, Mr. Jim Knight, or to any entity owned by the Knights. Respondent committed no act or omission which impaired his business judgment, compromised his independence, or which was otherwise improper in connection with the acquisition of the District Warehouse Site. Initial Site Selection And Evaluation Prior to the acquisition of the Knight property, the School Board attempted to acquire property owned by Palm Beach County and known as Section 6. Negotiations for the acquisition of Section 6 terminated when Section 6 became unavailable. A site search for the District Warehouse property was conducted by Growth Management. Ten separate sites, including the Knight property, were initially identified and reviewed by a site acquisition team within Growth Management. The site acquisition team was headed by Mr. William Hukill, Assistant Superintendent for Growth Management. The site acquisition team also included Mr. Robert Skakandy, a real estate acquisition coordinator in Growth Management, and Mr. David Williams, Assistant Director of Growth Management. Respondent was not significantly involved in identifying the 10 properties considered by the site acquisition team, including the Knight property. Each property was placed on the list by the site acquisition team because it was within or proximate to the geographical area preferred by the site acquisition team or possessed other targeted location characteristics. 9/ Site selection procedures typically did not involve Respondent. Site selection procedures were described in detail in the Auditor General's Report: . . . upon identification of potential sites, the sites were evaluated by the District's Growth Management Center. A description of each site was presented to the Assistant Superintendent, Growth Management and to the Assistant Director, Growth Management for their review, after which the descriptions were . . . presented to the Superintendent. Following the Superintendent's review, the preliminary site investigations and site descriptions with the Superintendent's recommendation were to be presented to the School Board for their review and approval. (emphasis supplied) Auditor General's Report at 63. Growth Management first considered the Knight property in August, 1988. Mr. Jim Knight communicated the availability of the Knight property to Ms. Linda Howell, a real estate coordinator in Growth Management. Ms. Howell and Mr. Jim Knight conducted further discussions. Ms. Howell identified the Knight property as a potential site and relayed the site information to Mr. Skakandy. The site acquisition team reduced the list of ten sites to a list of three final sites. The Knight property was not one of the three final sites selected. The three final sites were all less expensive than the Knight property. The three final sites were the Riviera Beach site, the Boyton Beach site, and the Farmer's Market site. Feasibility problems developed with each of the three final sites. The Riviera Beach site was sold to another party. The Boyton Beach site was objected to by other staff not on the site acquisition team. It was 15-20 miles south of the center of the county and failed the express criteria for a "central" warehouse. Environmental problems and costs associated with the disposal of building materials caused Maintenance and Renovations to recommend against purchase of the Farmer's Market site. 10/ Reconsideration Of Knight Property On or about January 11, 1989, former Superintendent Mills sent a memorandum to Mr. Hukill indicating that Mr. William Knight had called the Superintendent to express his interest in having the Knight property reconsidered for the District Warehouse Site. Respondent received a copy of that memorandum but was not otherwise involved significantly in the reconsideration of the Knight property. On or about January 20, 1989, Mr. Hukill sent a letter to the former Superintendent indicating that the Knight property was still under consideration and that the Knight property location was quite good under the circumstances. Mr. Hukill indicated that appraisals had been ordered and that a site recommendation would be forthcoming. 11/ The Knight property was reconsidered in accordance with procedures customarily followed in Growth Management. There was no formalized procedure followed in Growth Management for the evaluation of property for site acquisition. Sites were discussed in a free form fashion. Except for a recommendation of the final site selected, written records for recommendations on specific properties were not customarily prepared by staff in Growth Management. 12/ Mr. Hukill made the ultimate decision to add or drop sites from consideration. Acquisition sites were added or deleted from site acquisition lists without notifying Respondent. The Knight property was evaluated by the entire staff in Growth Management. The evaluation of the Knight property included a review of environmental issues, utilities, zoning, and road use. Mr. Jim Knight had more than 20 meetings with Growth Management staff including Mr. Hukill, Mr. Skakandy, and Mr. Williams. Respondent was not significantly involved in those discussions. 13/ The Knight property was recommended by staff because of its suitability for the District Warehouse and because of the unavailability or unsuitability of the first three sites originally selected by the site acquisition team. The Knight property was located in almost the exact center of the county. It was also located on Southern Boulevard, a roadway that runs directly to western communities in Palm Beach County where many new schools were scheduled for construction. Respondent properly relied on staff recommendations for the Knight property in accordance with his customary practice. At no time prior to the time the property was acquired did any employee within Growth Management state to Respondent that the Knight property was not a suitable site or that the purchase of the Knight property would be detrimental to the School Board. Mr. Hukill did not sign the written recommendation for the Knight property. The reason for his refusal, however, had nothing to do with the suitability of the Knight property for the District Warehouse. Mr. Hukill believed, as a philosophical matter, that the School Board should spend its money on schools rather than on additional warehouse sites. Mr. Hukill, in effect, objected to a determination made by the School Board in 1985. Mr. Hukill agreed with the recommendation that the Knight property was suitable based on the marketplace, location, and ease of distribution for servicing schools. Respondent neither identified nor advocated the Knight property. Respondent had no conversations with either Mr. William Knight or Mr. Jim Knight concerning the evaluation of the Knight property as a site for the District Warehouse except as previously described. Except for the price paid for the Knight property, Respondent's involvement in the acquisition of the Knight property was limited to a review of staff recommendations and the acceptance of those recommendations. Additional Acreage The initial search for a District Warehouse site focused on the acquisition of 10 acres of property. However, the Knight property included 16 acres. The additional acreage was purchased to overcome access problems that would have occurred if only 10 acres had been purchased. Unanticipated problems in site selection was one of the deficiencies known to the School Board and discussed in the Price Waterhouse Report in 1987. Engineering involvement frequently did not occur early enough in site acquisition. As a result, sites selected by the site acquisition team required unanticipated expenses, and the full cost of the project was not properly assessed. 14/ The decision to purchase additional acreage was not made by Respondent. Former Superintendent Mills wanted the additional acreage to accommodate future expansion for office space on the warehouse site. The former Superintendent believed that a larger site was desirable to properly accommodate future expansion needs and directed the purchase of the additional acreage. The issue of whether to increase the site for the District Warehouse from 10 acres to 16 acres was discussed at a Superintendent's staff meeting. The former Superintendent, the School Board attorney, Respondent, and a dozen other members of the former Superintendent's staff attended the meeting and participated in the discussion. The decision and recommendation to purchase the additional acreage was made by the former Superintendent. Purchase Price The final purchase price for the Knight property was reasonable and beneficial for the School Board. Respondent was responsible for the final purchase price. Two separate appraisals for the Knight property were obtained by Growth Management in accordance with its customary practice and applicable law. 15/ Respondent did not select the appraisers. They were selected by Mr. Skakandy with the approval of Mr. Williams. The appraisers were qualified and had been used many times in the past by Planning and Operations. The two appraisals for the Knight property differed by $1.00 a square foot. The higher appraisal was for $5.50 a square foot. The lower appraisal was for $4.50 a square foot. 16/ Respondent refused to accept Mr. William Knight's offer to split the difference between the two appraisals and insisted on a sales price of $4.42 a square foot. The price paid for the Knight property was reasonable and less than the lowest appraised value. Contract Negotiations Respondent was not involved in contract negotiations for the Knight property and did not dictate any of the terms of the contract for the purchase of the Knight property; except the final purchase price discussed in the preceding paragraph. Site acquisition personnel typically negotiated site acquisition contracts in concert with the School Board attorney. Site acquisition personnel did not customarily report the status of contract negotiations to Respondent. No established procedure required such reports. Contract negotiations for the acquisition of the Knight property were carried out entirely by site acquisition personnel within Growth Management and Mr. Robert Rosillo, the School Board attorney. Negotiations by staff and the School Board attorney for the Knight property were within the scope of normal functions for site acquisition. The School Board attorney did not confer with Respondent during the three months in which contract negotiations for the Knight property were conducted. Respondent never gave the School Board any direction or other information concerning the acquisition of the Knight property. It is the responsibility of the School Board attorney and technical staff in Growth Management to draw acquisition contracts, address zoning requirements, and determine contingencies for closing. Any problems associated with the final contract for purchase of the Knight property were the responsibility of the School Board attorney and staff negotiators. Road Improvements: Allocation Of Costs Between The Parties The contract for the Knight property addressed road improvements, right-of-way, and relocation measures necessary for the use of the property. Engineering drawings reflected the right-of-way issues, the need to relocate water and sewer lines and a lift station, and the need for road improvements. The parties to the contract agreed to share the cost of road improvements proportionally. The contract required the seller to place $70,000 in a separate escrow account to be used to fund the necessary road improvements. While Petitioners now complain that the amount escrowed by the seller was inadequate, the terms of the contract were prepared by the School Board attorney and recommended by Growth Management staff in accordance with long standing practice. In 1987, The Price Waterhouse Report stated that contract documents did not delineate specific responsibilities. The result was confusion, disagreements, and additional costs to the School Board or outside parties. 17/ Adverse impacts from the purchase of the Knight property on October 11, 1989, reflected deficiencies reported in the Price Waterhouse Report in 1987. Those deficiencies were well known to the School Board at least two years before the acquisition of the Knight Property. The School Board chose not to expend additional funds on a program of improvement suggested by Price Waterhouse. Financial Ability Of Seller To Comply With Repurchase Option The contract for the Knight property contained a provision which gives the School Board the right to require the seller to repurchase the property if conditions pertaining to zoning are not satisfied (the "repurchase option"). The repurchase option was drafted by the School Board attorney. A decision not to enforce the repurchase option was made by the School Board, the School Board attorney, and the former Superintendent. If the School Board had elected not to proceed with closing, the contract afforded the seller to right to sue for specific performance. A foreclosure suit was filed against the Knight property a few days prior to the closing on October 11, 1989. Mr. Rosillo discussed the impact of the foreclosure suit on the purchase with former Superintendent Mills. The issue was not discussed with Respondent. The contract did not require the seller to evidence its financial ability to perform the terms of the contract. Nor did the contract require Mr. William Knight to personally guarantee the obligation of the seller under the repurchase option. Temporal Considerations The time required for the evaluation and purchase of the Knight property was reasonable and adequate. The transaction was not "rushed." The evaluation and purchase of the Knight property required approximately 14 months to complete. Once the decision to purchase the property was made, approximately three months were required to finalize the terms of the contract and close the transaction. Even if the evaluation and purchase of the Knight property was rushed, Respondent did not act as an impetus to rush the transaction. Respondent was not significantly involved in the identification, evaluation, and purchase of the Knight property except for the final purchase price. Mr. Jim Knight actively negotiated the transaction with Mr. Rosillo, Mr. Hukill, Mr. Williams, and Mr. Skakandy. The entire transaction was discussed fairly and adequately by Growth Management staff and the School Board attorney. Respondent did not propose or advocate the Knight property. Respondent did not negotiate the terms of the contract to purchase the Knight property except for the final purchase price. Respondent did not decide whether to close the transaction or whether to enforce the repurchase option. Bifurcated Funding For Land Acquisition And Construction The fact that the Knight property was acquired prior to the time that money was available to construct the District Warehouse does not make Respondent incompetent. Property was customarily purchased first and a building constructed out of budget appropriations in subsequent years. In 1987, The Price Waterhouse Report included such practices in its list of deficiencies. The capital budgeting process lacked sufficient coordination, timing, and input. Adequate cost accounting tools were not available. Existing reports lacked sufficient detail, accuracy, and timeliness. Capital improvement funding sources were not clearly identified. The fact that priorities for capital improvements were not easily or accurately tracked was a source of frustration for administrators including Respondent. 18/ Those deficiencies were known to the School Board prior to 1987. In 1987, the School Board chose not to pursue a program of improvement with Price Waterhouse. In 1993, the Auditor General's Report found that originally designated capital outlay moneys had been expended on projects, land purchases, and other purposes which were not contemplated in the 1986 school construction plan. Expenditures not contemplated in the five year construction plan included the District Warehouse Site. 19/ The notice of tax levy for capital improvements had not been prioritized within categories as required by Section 200.065(9)(a), Florida Statutes. Failure to prioritize the projects contributed to delays in undertaking some of the projects at issue. Furthermore, the School Board did not segregate and account for the proceeds and related expenditures of each respective year's levy. 20/ The decision to purchase the Knight property and rely on budget appropriations in subsequent years for construction was made by former Superintendent Mills. The former Superintendent's policy was to purchase land at a reasonable price if there was a future need for the property. Land values in Palm Beach County were appreciating rapidly. The money to construct the buildings on such properties typically came from budget appropriations in subsequent years. The Knight property was purchased for less than its lowest appraised value. 2.10 Gratuities And The Knight Property Respondent went fishing in 1986 and 1987 on Mr. William Knight's fishing boat in St. Thomas, U.S. Virgin Islands, and in Bimini, Bahama Islands. Respondent reported both fishing trips on his annual financial disclosure forms. The two fishing trips did not adversely affect Respondent's business judgment or create the appearance of impropriety. Respondent was not significantly involved in the acquisition of the Knight property in October, 1989. In 1986, Respondent accepted an invitation from Mr. Robert Howell, a member of the School Board at the time, to go fishing in St. Thomas. The invitation was made to Respondent through former Superintendent Mills. The former Superintendent joined Respondent on the fishing trip. Respondent had never met Mr. William Knight before that time. The fishing trip lasted two days. Respondent paid for his own transportation to St. Thomas. In 1987, Respondent and former Superintendent Mills accepted an invitation from Mr. William Knight to fish with their children in Bimini. The fishing trip lasted one day. The West Bus Compound On or about April 24, 1990, the School Board purchased property in Royal Palm Beach for $750,000 (the "West Bus Compound"). The property was purchased from Mr. John Bills. Site selection procedures typically did not involve Respondent. 21/ Respondent did not act incompetently or violate applicable standards with regard to the identification, evaluation, and purchase of the West Bus Compound. Respondent did not propose or advocate the West Bus Compound or the evaluation, selection, and purchase of the West Bus Compound. Respondent showed no favoritism to Mr. Bills, or any entity owned by Mr. Bills. Respondent committed no act or omission which impaired his judgment, compromised his independence, or which was otherwise improper in connection with the evaluation and acquisition of the West Bus Compound. The need for a site to service the western portion of Palm Beach County was identified by Mr. George Baker, the Director of Transportation. Transportation was a division of the Department of Administration. The Associate Superintendent of Administration was Dr. Henry Boekhoff. Respondent had no authority or responsibility over Transportation. The need for a site to service the western portion of Palm Beach County was uncontroverted. Due to westward population migration, several new schools were built in the western regions of the County. Mr. Baker determined that it was not cost effective to transport buses back and forth from compounds in the eastern portion of the County for maintenance and storage. Mr. Baker and Dr. Boekhoff determined that a West Bus Compound would result in significant savings in the operating budget. The need for a West Bus Compound was well known within the school district administration, including Growth Management. Mr. Baker had repeatedly stated to everyone "within earshot" that the need for a West Bus Compound was urgent. Mr. Baker identified a site location in Royal Palm Beach owned by Mr. Bills. Mr. Baker told Mr. Williams, who worked in Growth Management, that Transportation wanted the site owned by Mr. Bills for the West Bus Compound. Mr. Bills was trying to sell his property. Mr. Bills submitted a brochure on the property to Mr. Hukill and other staff in Growth Management. Mr. Hukill recommended the property owned by Mr. Bills to Respondent. Respondent discussed the site with former Superintendent Mills. At Mr. Hukill's request, the former Superintendent authorized Mr. Hukill to proceed with negotiations for the property owned by Mr. Bills. Respondent advised Mr. Williams of the availability of the property owned by Mr. Bills. Respondent instructed Mr. Skakandy to follow normal procedures regarding the West Bus Compound site. The West Bus Compound site was evaluated by Mr. Skakandy and Mr. Williams. They also negotiated the contract for acquisition. Such action on the part of Mr. Skakandy and Mr. Williams was consistent with customary practice within Growth Management and was within the scope of their regular duties and responsibilities. Two appraisals were obtained for the West Bus Compound. The higher appraisal was for $810,000. The lower appraisal was for $703,000. The property was purchased for $750,000. Respondent properly relied on the recommendations and advice of technical staff in Growth Management with respect to the acquisition of the West Bus Compound site. Respondent was never informed by anyone within Growth Management that there were any limitations on the use of the site. Certain zoning and easement requirements reduced the usable area for the site below that originally projected by Growth Management. Mr. Baker recommended the site even though the usable area was less than originally projected. Respondent was not acquainted with Mr. Bills at the time that the West Bus Compound was evaluated and acquired. Subsequently, however, Respondent developed a friendship with Mr. Bills. Respondent never showed any favoritism to Mr. Bills in connection with the West Bus Compound. The Summit Facility On July 1, 1989, employees of Maintenance and Renovations and employees of Facility Operations were housed in a leased facility at 3323 Belvedere Road, West Palm Beach, Florida (the "Belvedere" site). A new ancillary facility was nearing completion in the Fall of 1989. The new facility was located at 3300 Summit Boulevard in West Palm Beach (the "Summit Facility"). The Summit Facility included a second building known as the north building. The landlord for the Belvedere site exercised its rights under the lease to obtain use of the Belvedere site sooner than originally anticipated by the School Board. Electronics employees housed at the Belvedere site were moved to Northshore High School ("Northshore") on a temporary basis until the Summit Facility was completed. Residents of the neighborhood adjacent to Northshore complained to some members of the School Board about increased traffic. The School Board took the matter up at a public meeting during the Fall of 1989. Approval Of Day Laborers In Trades Sections At the public meeting conducted in the Fall of 1989, the School Board specifically authorized Mr. David Lord, Director of Maintenance, and former Superintendent Mills to use day- laborers in the trades sections 22/ to construct additions to buildings at the Summit Facility and to relocate electronics employees from Northshore to the Summit Facility by January 1, 1990. Mr. Lord and the former Superintendent discussed the matter with the School Board in detail. 23/ At the public meeting, the School Board instructed Mr. Lord to use whatever resources were available to him to make needed capital improvements to the Summit Facility by January 1, 1990. Confusion over when to use contractors or in-house personnel was one of the deficiencies discussed in the Price Waterhouse Report in 1987. Criteria for determining when to perform work on a contract basis and when to perform work in- house were not clearly established. This made planning difficult and increased project costs. 24/ Lack of communication and agreement between project managers and construction personnel concerning time and cost of in-house projects resulted in incorrect decisions concerning the desirability of building in-house or by contract, caused delays, cost overruns. 25/ Comparative cost analyses of in- house and contract maintenance construction were not available. 26/ In 1993, the Auditor General's Report found that established procedures did not provide reasonable safeguards to monitor day-labor projects to ensure that goods and labor were used only for authorized projects. The Auditor General's Report recommended that such procedures be established. 27/ Mr. Lord used day-laborers from his trades sections to make the capital improvements mandated by the School Board in accordance with the School Board's instructions. The work was begun in December, 1989, and completed in March, 1990. Code Violations In 1991, after considerable time for discussion and analysis among attorneys and technical staff within the Department of Education and Planning and Operations, it was determined that some additions to the Summit Facility were not in compliance with applicable safety code regulations. Respondent properly relied on Mr. Lord and Mr. Lord's immediate supervisor for technical compliance with applicable code provisions. Florida Administrative Code Chapter 6A-2 contains the State Uniform Building Code. Part A of Chapter 6A-2 ("Part A") applies in some circumstances, and Part B of Chapter 6A-2 ("Part B") applies in other circumstances. In July, 1990, officials of the Department of Education, Educational Facilities Department, in Fort Lauderdale, Florida, were invited to a demonstration of fire alarms at the Summit Facility. Mr. Russell Smith, Director of Facilities Design, determined that life/safety code violations existed in the two buildings at issue in the Summit Facility. Mr. Smith's determination of code violations was based on the assumption that Part A applied to the capital improvements at the Summit Facility. Mr. Lord had determined that Part B applied to the capital improvements. The capital improvements at the Summit Facility complied with the requirements of Part B but not Part A. Mr. Smith did not report the alleged code violations to Respondent until December, 1990. Respondent directed Mr. Smith to obtain a determination from the Department of Education. Mr. Smith pursued the matter with representatives of the Department of Education as well as Mr. Lord in Growth Management. Ms. Abbey Hairston, General Counsel for the School Board, concluded that there was a strong likelihood that Part B applied. Mr. Lord suggested that an outside consulting firm be retained to determine the applicability of Part A or Part B to the capital improvements at the Summit Facility. Respondent could not have detected the existence of the alleged code violations in the capital improvements to the Summit Facility. Respondent did not have the expertise to make such a determination. Respondent's regular duties and responsibilities did not require that Respondent maintain such expertise, conduct inspections for the purpose of detecting code violations, or correct code violations. Respondent did not act incompetently and did not violate applicable standards with regard to the capital improvements to the Summit Facility. Respondent did not propose or advocate that capital improvements be made to the Summit Facility in compliance with Part B. Respondent properly relied on his staff for technical compliance with applicable code requirements. When Respondent received notice of alleged code violations, Respondent acted in a competent and timely manner. In 1987, The Price Waterhouse Report discussed several deficiencies in staff performance, personnel, and control. The Price Waterhouse Report stated: Internal expertise is limited. Knowledge of specialized areas is limited, project quality suffers, life cycle costs are higher. . . . Training programs and budgets are insufficient, especially with respect to technical and safety training. Employees are not as efficient or effective as they could be. Knowledge of project managers is less than they feel is necessary Project managers are resistant to new management techniques. . . . Inadequate technical library. . . . Price Waterhouse Report, Staff Performance, Personnel And Control, Issues 5, 7, and 9, and corresponding Impacts. In 1993, the Auditor General's Report recommended that: . . . District personnel strengthen procedures to provide that, prior to occupancy in the future, the required approvals for occupancy are obtained to ensure that the facilities meet the prescribed safety standards. Auditor General's Report at 64. Tracking And Reporting Costs The computer codes and accounting approach used to track and report the cost of capital improvements to the Summit Facility complied with applicable standards. The computer codes and accounting approach recorded each transaction and were subject to separate retrieval in accordance with established procedures. Required object, fund, and function codes were used to document the expenditure of funds for the capital improvements to the Summit Facility. In 1987, the Price Waterhouse Report stated: Adequate cost accounting tools are not available. Existing reports lack sufficient detail, accuracy and timeliness. [There is] . . . [n]o ability to manage and control project cost. This results in true project cost being unknown and lack of problem identification on a timely basis. . . . Capital Improvement Requests are not easily or accurately tracked. Priorities are difficult to track and coordinate. This is a source of school administration frustration. . . . Project management tools are not available. Project cost containment suffers. Control and reporting is lacking. . . . Accountability is difficult to enforce. Price Waterhouse Report, Financial Procedures And Controls, Issues 4, 8, and 17, and corresponding Impacts. The day-labor hours billed for additions to the Summit Facility totaled approximately 6,373. In the three fiscal years from 1989 through 1992, approximately 566,853.75 day-labor hours were paid and approximately 454,701.75 were billed. Day-labor hours paid exceeded day-labor hours billed by approximately 112,152 hours. 28/ As the Price Waterhouse Report indicated in 1987, adequate cost accounting tools were not available. The cost accounting and reporting procedures that were in fact utilized for the additions to the Summit Facility complied with available cost accounting procedures. Respondent did not act incompetently and did not violate applicable standards in connection with the method used to track and report the cost of capital improvements to the Summit Facility. Respondent did not propose or advocate any particular accounting procedure. Respondent properly relied on technical staff to track and record the cost of capital improvements to the Summit Facility, and staff properly utilized the accounting tools available to them. Purchase Orders Purchase orders for mezzanine and modular offices were originated by staff in lower levels of Maintenance and Operations. The purchase orders were processed in accordance with normal procedure and approved by Ms. Betty Helser, Director of Purchasing. Ms. Helser was under the supervision of the Associate Superintendent of Administration and was not subject to the authority of Planning and Operations. Planning and Operations had no authority over Purchasing. Respondent did not participate in the purchase order approval process. Respondent was not responsible for that process. Several names were listed on the purchase orders as resource or contact persons in connection with the purchase order. Respondent was not one of those named. Funding Source For Capital Improvements Respondent did not act incompetently and did not violate applicable standards in connection with the funding source for capital projects, including acquisition of the District Warehouse site, the West Bus Compound, and additions to the Summit Facility. Funding sources for such projects were approved by the School Board. The funds used to pay for the District Warehouse, the West Bus Compound, and the Summit Facility were not misappropriated or misapplied. The School Board approved those capital projects and their corresponding budgets. The budget for each capital project provided for the transfer of capital outlay moneys to the general fund. 29/ Taxes had been levied for capital improvements pursuant to Section 236.25(2), Florida Statutes. Funds were transferred from this special millage money and not from general obligation bond money. Such transfers occurred in prior years and were consistent with customary procedure. Moreover, no funds were used for capital projects without the prior knowledge and consent of the School Board. Deficiencies in the budget reporting and control process impeded full consideration by the School Board of the impact of capital projects and budget transfers on the 1986 school construction plan. As a result, originally designated capital outlay moneys were expended on capital projects not contemplated in the 1986 school construction plan. Accordingly, some originally contemplated projects were not undertaken in the five year plan due to lack of funds. 30/ Deficiencies in financial processes and controls reported by Price Water House in 1987 and known to the School Board prior to that time created impediments to proper budgeting and resulted in poor budget quality. In 1987, the Price Waterhouse Report stated: Performance measurement (feedback) needed to assess and improve budget accuracy is lacking. Poor budget accuracy, control, and forecasting [results]. . . . The capital budgeting process lacks sufficient coordination, timing and department input. Budget priorities may not be sufficiently addressed and quality of actual budgets may suffer. Priorities for improvements are defined by construction and remodeling, but they may not be consistent with the school's needs. High priority projects may not be addressed on a timely basis. Price Waterhouse Report, Financial Procedures And Controls, Issues 2, 16, and corresponding Impacts; Price Waterhouse Report, Planning Of Operations And Projects, Issue 9 and corresponding Impact. Projects funded by the capital outlay millage derived under Section 236.25(2), Florida Statutes, were not prioritized within categories in the notice of tax levy as required by Section 200.065(9)(a). Failure to prioritize the projects to be funded by the capital outlay millage contributed to delays in undertaking some of the projects contemplated in the 1986 construction plan. In addition, the proceeds and related expenditures of each year's levy was not segregated and accounted for. 31/ Reports reviewed by the School Board consisted of monthly financial statements containing analyses of revenues by source of funds and analyses of expenditures by function. Status reports showed comparisons of projected revenues designated for the 1986 school construction plan with actual revenues received. Comparisons of projected construction costs anticipated in the five year construction plan with actual construction costs were not available. Like the notice of tax levy, available status reports did not prioritize projects within categories. The failure to prioritize projects and reporting inadequacies constituted some of the pandemic deficiencies known to the School Board prior to 1987 and did not result from Respondent's alleged incompetence. In 1993, the Auditor General's Report recommended several procedures for rectifying deficiencies in the budgeting process. First, quarterly status reports on capital projects should be revised to show the projected costs of projects, current expenditures, and the variances over or under projected costs. Second, proposed budget amendments should include an explanation of the possible effects on capital construction plans and operating budgets. Third, the ". . . Board and the Superintendent. . ." 32/ should develop written management reporting guidelines. Finally, the School Board should re- examine the remaining bond plan projects to ensure that they reflect current needs. G-604s: Requests For Additional Services Respondent did not act incompetently and did not violate applicable standards with regard to the use of requests for additional services or change orders on form G-604. Requests for additional professional services or for change orders are made on form G-604. Palm Beach County requires that such requests be reviewed by the School Board. Respondent never attempted to hide requests for architectural services from the School Board or to prevent their review by the School Board. In August of 1986, Mr. Hukill wrote a memorandum to Respondent requesting that directors be allowed to review and approve appropriate requests for additional services in an amount no greater than $20,000 per request and then submit the G-604 to the School Board for subsequent review. Respondent approved the procedure requested by Mr. Hukill. Two weeks later, Mr. Larry Mione, Contract Administrator, erroneously wrote a memorandum to four assistant directors authorizing requests for additional services of up to $20,000 per request without the need to have such requests subsequently reviewed by the School Board. As a result of the erroneous memorandum from Mr. Mione, some G-604s were approved by directors and were not subsequently reviewed by the School Board. This practice was in derogation of the memorandum issued by Respondent. When the discrepancy was discovered, several investigations were ordered by former Superintendent Mills and Deputy Superintendent Daniels. There were approximately 30 people at staff meetings two times a month. All of them review School Board reports. None of them discovered the discrepancy in the conflicting memoranda until after the violations had occurred. Respondent was not charged with wrongdoing or incompetence and was not found incompetent. An independent outside consultant confirmed the need for the G-604s and the procedure authorized by Respondent. Gratuities Former Superintendent Mills established a policy that required all senior administrative personnel, including Respondent, to promote the involvement of members of the business community in the school system. The policy was designed to obtain the aid of business in solving problems such as overcrowding, lack of materials and text books, a lack of funding, and an increasing drop out rate. The policy was a high priority for former Superintendent Mills. Respondent performed the duties required under the policy established by former Superintendent Mills. Respondent entertained members of the business community and was entertained by them. The gratuities accepted by Respondent generally involved free lunches, dinners, and golf outings. Policy Directive Respondent's activities did not violate the policy directive of former Superintendent Mills. Former Superintendent Mills knew of Respondent's activities and approved of those activities. Upper management was encouraged to socialize with members of the business community, including contractors and architects, in an effort to get them involved in solving problems facing the school system. Business Judgment And Impropriety Respondent's business judgment was not adversely affected by his association with vendors of the school system. Respondent's association with such members of the business community did not create the appearance of impropriety. The award of contracts to vendors was the responsibility of Purchasing. Purchasing was under the control of Dr. Boekhoff, the Associate Superintendent of Administration. Ms. Helser was the Director of Purchasing. Respondent did not have the authority to influence decisions made in Purchasing. Incompetence Respondent carried out the policy directive of former Superintendent Mills competently with no adverse affect on his business judgement and without the appearance of impropriety. The business community became actively engaged in solving problems of the school district. Companies such as Motorola, Pratt Whitney, and IBM provided opportunities for speakers to address employees to promote the bond issue. The bond issue was approved by the voters. A program known as "Cities in Schools" was developed as a business partnership to prevent drop out. Funds were raised for programs and materials. Respondent did not improperly promote a particular vendor or product in connection with the business of the School Board. Respondent never violated any administrative directive or established standard of conduct of the Department of Education. Evaluations 128. The Amended Petition For Demotion alleges that Respondent was incompetent in evaluating two employees. Those employees were Mr. Goode and Mr. Hukill. No credible and persuasive evidence was submitted by Petitioners to support their allegations in this regard. Attorney Fees And Costs The parties' request for attorney fees and costs are addressed in the Conclusions of Law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a Final Order finding Respondent not guilty of any of the allegations in the Amended Petition For Demotion, award Respondent back salary with applicable interest for the entire period of his demotion, immediately reinstate Respondent to a salary level comparable to that received as Associate Superintendent of Planning and Operations in accordance with Section 231.36(6)(b), Florida Statutes, dismiss the request to return Respondent to annual contract status under Section 231.35(4)(c), and maintain Respondent on continuing contract. RECOMMENDED this 23rd day of July, 1993, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1993.
The Issue Whether the Broward County School Board (School Board) has an unwritten policy excluding all charter schools, including the City's charter schools, from consideration in the distribution of funds under Section 1011.71(2), Florida Statutes1 (Challenged Statement) and, if so, whether that unwritten policy constitutes a "rule," within the meaning of Section 120.52(16), Florida Statutes, that violates Section 120.54(1)(a), Florida Statutes, as alleged by the City of Pembroke Pines (City).
The Issue The issue for determination is whether Respondent should be suspended without pay and terminated from employment with Petitioner.
Findings Of Fact Mr. Gonzalez was a non-instructional employee with the School Board at Liberty Park Elementary School (Liberty Park), employed as a Paraprofessional II. Prior to that position, he was employed as an Instructional Technologist Specialist at Liberty Park. Before working at Liberty Park, Mr. Gonzalez was employed with the School Board at S.D. Spady Elementary School (S.D. Spady) as an Instructional Technology Assistant for approximately 90 days. He was responsible for the computer hardware and software at S.D. Spady, including maintaining the inventory and repairing the hardware and software. During Mr. Gonzalez’s probationary period at S.D. Spady, the principal gave him a computer to place in the Exceptional Student Education (ESE) Department. Before the end of his probationary period at S.D. Spady, Mr. Gonzalez was released from his employment by the principal. The principal was having continuous problems with him; many times, Mr. Gonzalez was not coming to work or calling- in to advise that he was not coming into work, and the principal could not locate him. After Mr. Gonzalez was released by the principal at S.D. Spady, the principal discovered that the computer was never delivered to the ESE Department. The computer was never seen at S.D. Spady again. Subsequently, Mr. Gonzalez was employed at Liberty Park. During his tenure at Liberty Park, the principal requested an investigation by the School Board’s School Police Department (School Police) of Mr. Gonzalez regarding a parent’s complaint against him. Allegedly, Mr. Gonzalez borrowed money from a student and promised to repay the student more money than he borrowed on his (Mr. Gonzalez’s) payday, but failed to do so. The student told his mother, and the student’s mother reported the incident to the principal. The investigation began in February 2009. During the investigation of the parent’s complaint, Mr. Gonzalez became the subject of a separate investigation by the School Police due to a background check of Mr. Gonzalez by the investigator, using the PAWN system of the Palm Beach County Sheriff’s Office (Sheriff’s Office). The PAWN system is used by the Sheriff’s Office to track pawn transactions in local pawn shops. The background check showed Mr. Gonzalez’s name appearing 63 times in the PAWN system from June 2006 through March 2009. As to the separate investigation, the PAWN system revealed that a computer on the list of items pawned by Mr. Gonzalez matched the missing computer from S.D. Spady. The manufacturer of the pawned computer confirmed that the service code number on the pawned computer indicated that the pawned computer was purchased by the School Board from the manufacturer. The pawn ticket for the pawned computer, maintained by the pawn shop, contained Mr. Gonzalez’s identifying information, including his name, address, driver’s license number, signature, and fingerprint, all of which were required by the pawn shop. The School Police arrested Mr. Gonzalez and charged him with grand theft, dealing in stolen property, and false verification of ownership of property. He was transferred to the Sheriff’s Office. Mr. Gonzalez’s fingerprints were taken when he was arrested. The fingerprint on the pawn ticket, maintained by the pawn shop, was confirmed by a latent print specialist at the Sheriff’s Office as matching Mr. Gonzalez’s fingerprint taken at the time of his arrest. The School Board’s Superintendent decided to recommend suspension without pay and termination of Mr. Gonzalez to the School Board. The Superintendent notified Mr. Gonzalez of his (the Superintendent’s) recommendation. Mr. Gonzalez notified the School Board of his challenge to the recommendation and requested a hearing. On November 16, 2009, Mr. Gonzalez pled guilty to one count of dealing in stolen property (stemming from the School Police’s case), a second degree felony, in State of Florida v. Jorge E. Gonzalez, Case No.2009CF005648AXX, Criminal Division, Circuit Court, Fifteenth Judicial Circuit, Palm Beach County, Florida. Among other things, the court withheld adjudication, placed him on probation, and ordered restitution to the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order suspending Jorge Gonzalez for 15 days without pay and terminating his employment. DONE AND ENTERED this 17th day of June, 2010, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2010.
The Issue The issues in dispute are those associated with the invitation to bid in Project No. 565 by the Respondent as responded to by Petitioner and Intervenor. Among the specific questions to be answered are those concerning Petitioner's allegation that the Respondent allowed the Intervenor to materially alter its bid response to clarify the line item associated with tear down and return delivery for the relocatable classrooms that were being leased under the terms of the bid invitation and that alteration was allowed for the provision of canopies or awnings associated with the entrances to the relocatable classrooms. Questions are raised, first whether the Intervenor's bid response is in compliance with the provisions of Chapter 6A-2, Florida Administrative Code and, second whether the bid response of the Intervenor provides sufficient detail to allow the Respondent to understand the nature of the item, in this instance, the relocatable classroom, which the Intervenor proposed to provide in response to the invitation to bid. Finally, the general question is raised whether the Petitioner or Intervenor is the lowest responsible qualified bidder.
Findings Of Fact On April 28, 1989, Respondent sent out an invitation to bid in Project No. 565. It sought responses from a number of vendors and asked that those vendors on or before July 1, 1989, be prepared to deliver 49 portable classroom units. The arrangement which Respondent contemplated in the invitation was rental of the portable classrooms under a lease for a period of one year. It was intended that the portable classroom units would be delivered to various locations throughout Lake County, Florida. The bid opening was to occur on May 8, 1989, at 2:30 p.m. The request for bids included a lead sheet and in the second paragraph of the instructions on that lead sheet it was stated: All terms and conditions below are a part of this bid request and no bids will be accepted unless all conditions have been complied with. Rights are reserved to reject any and all bids and to waive all technicalities. It was further stated: DIRECTIONS FOR SUBMITTING BIDS ARE AS FOLLOWS: * * * 5. Samples must be submitted with bid where required. On other items descriptive literature with complete manufacturer's specifications in sufficient detail to indicate clearly the item bidder proposes to furnish must accompany the bid. NO BID will be considered without this data. Equipment offered as equivalent to the specific brand must be equivalent in quality of materials, workmanship, effect and corresponding in function and performance When the requirements set out in the preceding paragraph to the Recommended Order are read in the context of all other requirements set forth in the bid invitation, they are found to be consistent with those additional requirements. On the second page of the instructions for the Invitation to Project No. 565 was found a section entitled "Lease/Rental of Portable Classrooms" which stated: The Lake County School Board is requesting bids for Lease/Rental of Portable Classroom units meeting 6A-2 requirements at various locations. Units must meet Florida Code, SBCC Code and 6A-2 Department of Education code for structures of this type. We are requesting prices for 49 units for one-year rental, to be set-up at various locations. Steps, ramps, electrical, water or sewer hooks are not required. This work will be done in- house by Lake County School Board staff. A minimum of three 4' x 8' melaminc marker boards, two 4' x 4' tackboards, one 8 lb. fire extinguisher (2A40 BC) and junction box with stub-out for F/A and pullbox must be installed in each unit. Other provisions within the bid invitation describe the nature of the bid performance security that was incumbent upon each bidder, the need for insurance, nature of the insurance coverage expected and information related to lease provisions, purchase provisions, parts warranties and prices. The bid invitation pointed out that each bid packet furnished by the vendors should provide proof of insurance, a sample lease/rental contract, brochures and specifications of construction materials and contents and a 5 percent bid bond in a separate sealed envelope attached to the outside of the bid. Four vendors offered their responses to this invitation, among them Petitioner and Intervenor. The additional bidders were Diamond Engineered Space and Williams Mobile Offices. The bid opening occurred on May 8, 1989, as advertised. That bid opening was under the auspices, Provisions 6.05(7) and 6.87, Lake County School Board Policies Manual, which describe school construction bid procedures and contemplate awarding contracts to the lowest responsible qualified bidder meeting specifications with regard for the quality of the product being offered by the bidder, its suitability for the needs of the school system, delivery terms, service and past performance of the vendor. Some consideration is given to local vendors, under the provisions, but this has no role to play in this dispute. Rule 6A-2.016, Florida Administrative Code, also speaks to the procedures to be followed by the Respondent in this bid invitation process. The bids were opened, announced and tabulated. It was revealed, in turn that Diamond Engineered Space's price quote was $299,292.92; Petitioner's was $246,563; Intervenor's was $236,166 and Williams Mobile Offices' was $367,420. All vendors had made a timely response to the invitation to bid. In the course of the examination of the bid materials, the price sheet of the Intervenor came into question. This price sheet may be found as part of the Petitioner's Exhibit No. 1 admitted into evidence. In particular, item 3 on the price sheet was debated. In that section, the Intervenor's response stated: 4(b) Tear Down, and Return Delivery $350.00 (50 mile average at $1.50 per side) 4(c) Other ($200.00 Mat'l & Labor)$ NONE Given the parenthetical remarks found within the response, Norma Hale who was the Purchasing Agent for the School Board and in charge of the bid opening asked of Mike Connolly, who was attending the bid opening for the Intervenor, whether the quoted price was a firm price. Herman Kicklighter, the Director of Facilities and Maintenance who attended the bid opening for Respondent also made inquiry concerning whether the tear down charge was a variable or fixed price. These questions were raised against a background circumstance in which some sites may have been further away than is contemplated by the 50 mile average set out in the parenthesis. It was not the intention of the Intervenor to leave the parenthetical information on the bid response and Connolly was caught off guard by this revelation. He had not prepared the bid submission by the Intervenor. Nonetheless, he informed the persons assembled that the price quotation of $350 was a firm price. This information was revealed after the Petitioner's bid had been opened. After some discussion, school officials at the bid opening were convinced that the $350 price was a firm price. Having considered the evidence, the $350 price is found to be a firm price. Moreover, this finding is made recognizing that the Intervenor was never allowed to remove the parenthetical remark from the bid response. That removal would have constituted an alteration of the bid response. If one examines the bid response and multiplies the 50 mile average times $1.50 per side, the amount is $150 plus $200 for material and labor for a total of $350 as reflected in the cost per unit designation. This is not considered to be a variable price quotation. Another topic that was brought up during the course of the bid opening concerned the question of whether the portable classroom units that were to be supplied by Intervenor included awnings or canopies over the door entrances. Petitioner was and is of the opinion that the awnings and canopies are required. It is not clear from a review of Petitioner's Exhibit No. 4 admitted into evidence, which is the Petitioner's bid material, whether Petitioner intended to supply awnings or not. It is clear that the bid material of the Intervenor did not include awnings. Kicklighter asked Connolly if the Intervenor's bid included awnings and the essence of Connolly's response would indicate that the bids did not include awnings. Connolly was allowed to leave the room to make a telephone call to his office to further inquire concerning the response of the Intervenor as it related to awnings. While he was gone, the School Board checked with the Department of Education in Tallahassee on the topic of whether Chapter 6A-2, Florida Administrative Code required awnings in this application. In a conversation with William Moncreath, a certified architect with the Department of Education, Kicklighter was lead to believe that awnings were not needed. Connolly then made this known to the persons in the bid room. Connolly was not present at that time. Connolly then returned and told Kicklighter that the Intervenor would furnish awnings. This comment was met by a remark by Mr. Kicklighter to the effect that it looked like that the Intervenor and the School Board would be doing business. To allow the Intervenor to alter its bid response to include awnings that were not shown in the bid response, would be a material alteration if awnings were required. They are not. Therefore, this discussion concerning the awnings is a moot point. On May 9, 1989, the School Board determined to award the contract to the Intervenor. This met with a timely notice of protest from the Petitioner on May 12, 1989, and in a Formal Written Protest on May 22, 1989. Having been unable to resolve the matter amicably, the case was forwarded to the Division of Administrative Hearings for resolution of the dispute. Notwithstanding the pendency of the case before the Division of Administrative Hearings, based upon a claim of emergency, the lease agreement was entered into between the Respondent and Intervenor on June 15, 1989. In addition to the assertions by the Petitioner concerning whether the quotation for tear down and return delivery was a firm price and whether awnings are required, Petitioner calls into question whether the Intervenor has complied with paragraph 5 on the lead page concerning directions for submitting bids and the third paragraph on the next to the last page of the bid invitation concerning the things that the bid packet must include. Petitioner also questions whether Intervenor has adequately established that it will meet applicable requirements of Chapter 6A-2, Florida Administrative Code. Contrary to the opinion held by the Respondent and Intervenor, paragraph 5 on the lead page to the invitation to bid is a requirement that must be complied with. It is not an item to be ignored, nor it is considered to be superceded by any of the more specific references to requirements that are announced in the subsequent pages to the invitation to bid. The bidders had to make proof of insurance and to offer a sample lease/rental contract and provide a 5 percent bid bond. All bidders complied with those requirements. Petitioner complied with all other requirements as announced in the bid invitation as well. The question is whether Intervenor as a general matter has provided descriptive literature with the complete manufacturer's specifications in sufficient detail to clearly point out what item the bidder is proposing to furnish and whether indeed the item does comply. This is also described as brochures and specifications of construction materials and contents. Additional items that must be provided by Intervenor are those contemplated under Chapter 6A-2, Florida Administrative Code associated with relocatable classroom space and related construction codes made mention in the instructions to bidders under that portion referred to as "Lease/Rental of Portable Classrooms" and the last paragraph of that set of instructions associated with melaminc markerboards. Instead of relying upon clearly delineated information within the response of the Intervenor by way of literature with complete manufacturer's specifications to merely show the nature of the product or item that the Intervenor was proposing to furnish, Respondent, and in particular its principal advisor, Mr. Kicklighter, chose to rely upon certain self-serving statements made by the Intervenor in the course of its bid materials. This refers to an attachment to the sample lease agreement which is a fourth page in that set of materials stating: FLORIDA CODED BUILDING; Built to Comply with the Florida Department of Education's 6" A" .2 Specifications. With prints certified as a Classroom Building which can be located anywhere in Florida. (Zoning permitting). To Kicklighter this means Intervenor'S promises to build the classroom space in accordance with Chapter 6A-2, Florida Administrative Code and to provide certified prints and that provision would overcome any infirmities or paucity of information about the product in his mind. Kicklighter took further solace from correspondence of October 17, 1988, from David Toner, Director of Facilities Planning/Operation of St. Johns County, school Board in Florida which praises the Intervenor's performance in the lease of 28 relocatable classrooms in that county and states that plans and specifications were sent to Tallahassee for approval and installation met Chapter 6A-2, Florida Administrative Code. This is hearsay information and does not establish anything relevant in the matter of whether Intervenor will do as well for the Respondent as it appears to have done for St. Johns County School Board, if Intervenor doesn't first show that it has complied with this invitation to bid. It has not. It is not so much that Kicklighter attached no significance to the substantive information provided by the Intervenor in its response to the invitation, it is the fact that a clear understanding of the impression of Kicklighter concerning that substantiative information is overshadowed by his reliance upon the promise to provide certified prints and the remarks of his counterpart in the St. Johns County School Board as a principal reason for believing that the Intervenor's response was sufficient. That reliance was ill advised. It would be different if certified plans had been provided. They were not. The promise to provide them is outside the bid experience and is unacceptable as a means of compliance with the bid invitation. Looking at what was provided, there is a single sheet entitled Proposed Classroom which gives basic dimensions and information about frame and floor, walls, windows and doors, exterior covering, roof, electrical, A/C and heat, and restrooms. Within this document are found references to a 2600 rpm fan which could well mean 2600 cfm fan, the latter of which would meet requirements and the former which would not. Correction of this item would not be a material alteration. Likewise, correction of the reference of 1" x 4" top plate to 2" x 4" top plate to meet specifications would not be a material correction. in that this 1" x 4" reference as opposed to 2" x 4" reference could well be a typographical error. Within the bid documents by Intervenor there is a sheet referred to as Typical H.C. Toilet Rooms. Toilet Room A relating to Florida and Toilet Room B relating to Georgia. The outside dimensions of the Florida toilet room do not coincide with the Proposed Classroom sheet that has been mentioned. While the outside dimensions of the Georgia toilet room on this document appears the same as in the Proposed Classroom sheet that has been referred to, the configuration in the proposed classroom sheet and that of the sheet related to toilet rooms most recently under discussion are different. Under the circumstances, it is difficult to know what the Intervenor intends by way of toilet room facilities and the response is inadequate to meet the requirements of the bid invitation. This is a material deviation. There are some partial sheets within the bid materials which appear to be the first half of the Classroom Sheet that has been referred to and being duplicates of that information no particular significance is seen in those matters. There is material referred to U.S.G Acoustical Finish. There are further materials related to interior fixture finishes. There is a brochure with pictures showing the outside of a building and the interior of a portable classroom building. This document does not give any specific information as to types of materials, dimensions, etc. There is a document of May 5, 1989, from Descom directed to Mr. Connolly promising to make available replacement parts for 49 classrooms if Descom manufacturers them. There is information provided on the fourth page which is the attachment to the Lease Agreement which makes reference to frames being provided "per code." This page gives certain dimensions and design information related to the floors, walls and petitions and roofs. There is another two page document that shows miscellaneous equipment such as exit signs, melaminc marker boards, tack boards, emergency light with battery and backup and fire extinguisher. These items do not show manufacturer's name. There are references to various provisions within Chapter 6A-2, Florida Administrative Code where Intervenor claims that these items will correspond to. There are comments made on this page about the foundation of the portable classroom that are unclear. On the second page of these materials are found references to plumbing to include plumbing, related to the bathroom dealing with vinyl covered gypsum wall covering, the commode, wall mounted lavoratory, 90 cfm ceiling vent fan and mirrors and accessories. Again, the manufacturer's names are not given. A reference is made under the ceiling vent fan to a rule provision of Chapter 6A-2, Florida Administrative Code. There is reference under electric to two 100 amp load centers with mains and 12/2 copper romex. There is a reference there to 15-440 fluorescent light fixtures. Again, there is the reference to the 2600 rpm through the wall ventilation fan and 2 adequate wall receptacles. HVAC references a three ton Bard wall mount with heat strips and a ceiling supply duct system with STD return air system and a timer for the air conditioner. There is a reference to exterior materials, windows and doors and insulation factors. Again, some of these items under the bathroom, electric and HVAC reference sections within Chapter 6A-2, Florida Administrative Code. Other than the fluorescent light fixtures and HVAC Bard unit, manufacturers names cannot be discerned from this information submitted. The bid invitation calls for buildings of 24' x 36'. The response by Intervenor provides for a building which is 23' x 36', a material deviation from the requirements of the specifications. The light fixture is a Metalux Manufacturing Company surface mounted fixture of four forty watt bulbs. According to Gareuth Eich, an architectural expert whose opinion testimony is accepted, this light fixture does not comply with Rule 6A-2.064, Florida Administrative Code. This is a material deviation. The statement of plans do not show compliance with Rule 6A-2.059, Florida Administrative Code, as to exterior lighting. This is a material deviation from the specifications. The electrical specifications information provided by the Intervenor in the Proposed Classroom sheet shows two 100 amp panels that are separated, whereas specifications shown on the two-page printed informational sheet under electric speak in terms of a 100 amp load center with main disconnect. Regardless, requirements of Lake County are such that a main disconnect panel is required on the exterior of the portable classroom, the installation of which would be the responsibility of the school board. Thus, if two panels were employed inside they would become subpanels and not in conflict with the national electric code as spoken to in Rule 6A-2.065, Florida Administrative Code. On the other hand, it is not clear which alternative in panel design and service Intervenor intends to offer and this is a material deviation from the bid requirements. The information provided concerning the nature of the foundation for the portable classroom units is inadequate. This is a material defect in the response to the bid specifications. Gareuth Eich, Hugh Stump, President of Southern Structure, a company that manufactures portable classroom units and a person who is familiar with bidding procedures associated with those units and Paul Crum, an architect testified on behalf of the Respondent. All questioned the quality of information submitted by the Intervenor in terms of specificity, to meet paragraph 5 on page one of the invitation to bid and particulars that relate to certain requirements of Chapter 6A-2, Florida Administrative Code to this bid invitation. Having considered the remarks and the testimony of others and the exhibits, the Intervenor's response cannot be seen as providing manufacturer's specifications in the necessary detail to indicate clearly the item that bidder proposes to furnish as called for in paragraph 5 of the lead page of the invitation to bid. The response has also failed to meet certain provisions of Chapter 6A-2, Florida Administrative Code in the manner described. The quoted size of the portable building is too small in overall dimension. These are material shortcomings sufficient to cause the rejection of the Intervenor's bid response. Therefore, the Petitioner is in fact the lowest responsible bidder. Although Respondent and Intervenor have contracted for the delivery of the portable classroom units and they are located at the various sites within Lake County, Florida called for in the contract, Petitioner is theoretically prepared to provide classroom units in accordance with the requirements of the specifications.
Recommendation Under authority of Section 120.57(1), Florida Statutes, a formal hearing was held in this case on July 10-11, 1989 in Tavares, Florida. Charles C. Adams was the Hearing Officer.
The Issue The issue is whether Petitioner is entitled to an award of attorney's fees and costs under Section 57.111, Florida Statutes, as a prevailing small business party in DOAH Case No. 02-2230BID.
Findings Of Fact Based upon the pleadings, affidavits, stipulations, and the matters officially recognized, the following findings are made: Parties Petitioner is an engineering firm whose principal office is located in Tampa, Florida. Petitioner is certified as a minority-owned business by the State of Florida and the School Board. Petitioner’s majority owner and president is an African-American male. At all times material hereto, Petitioner had less than 25 full- time employees or a net worth less than $2 million. Respondent is a local school district of the State of Florida. Respondent 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). DOAH Case No. 02-2230BID On May 21, 2002, the School Board published a notice in the Tampa Tribune announcing its need for professional architectural and/or engineering services to supplement its in- house staff of architects and inspectors in order to provide increased on-site supervision, management, and inspection on ongoing school construction projects. The notice is a request for qualifications (RFQ), and is subject to the provisions of the CCNA. A report prepared by the Ernst & Young consulting firm based upon its “forensic evaluation and analysis of the District’s construction and maintenance policies, practices, and procedures” had recommended augmenting the District’s staff in the manner described in the RFQ. At the time the RFQ was advertised, the only adopted policy governing the School Board's acquisition of professional services was Section 7.14 of the Hillsborough County School Board Policy Manual (Policy Manaual). Section 7.14 did not specifically reference the CCNA and simply included a general authorization for the Superintendent of the District 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 other description of Respondent’s procurement process under the CCNA in existence at the time the RFQ was advertised was a document entitled "Capital Projects Standard Procedures" which was presented to but never adopted by the School Board. That document references the CCNA in connection with the selection of architects and construction managers, but not engineers, and it only provided a general outline of the selection process. The RFQ did not specifically reference or otherwise incorporate Section 7.14 of the Policy Manual or the “Capital Projects Standard Procedures” document, nor did the RFQ explain the criteria or factors upon which the responses to the RFQ would be evaluated or the weight that would be given to each factor. The RFQ did not specifically inform potential Respondents of their right to file a protest challenging the specifications, nor did it include the language provided in Section 120.57(3)(a), Florida Statutes. Petitioner timely filed a notice of protest and formal written protest challenging the specifications in the RFQ pursuant to Section 120.57(3)(b), Florida Statutes. Among other things, Petitioner challenged the absence of evaluation criteria in the RFQ and the absence of a formally-adopted policy governing the procurement process. Petitioner’s protest was referred to the Division, where it was assigned DOAH Case No. 02-2230BID. A formal administrative hearing was held on the protest, and on September 6, 2002, a Recommended Order was issued in DOAH Case No. 02-2230BID (hereafter “Specification Protest Recommended Order”). The Specification Protest Recommended Order agreed with Petitioner that the specifications in the RFQ were deficient and, more specifically, concluded that: the School Board's current selection process is deficient because neither the RFQ or the School Board's existing policies and procedures specify in advance the factors upon which the responses will be evaluated nor do they identify the weight which the School Board will give to each criteria. The process is also deficient because the selection committee members do not utilize a uniform method of evaluating the respondents. These deficiencies affect the integrity of the School Board's selection process and subvert the policies underlying Section 287.055 and competitive procurement generally. Accordingly, Petitioner met its burden of showing that the RFQ specifications are arbitrary and contrary to competition. Specification Protest Recommended Order, at 36 (paragraph 85) (emphasis in original). That conclusion was consistent with the report prepared by Ernst & Young, the following excerpts from which are pertinent here: [W]e have identified significant shortcomings related to ranking the professional service providers that have submitted bids for either architectural design, engineering, or construction management services. * * * [T]he architects and construction managers within the [architectural/ engineering/construction (A/E/C)] 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. . . . * * * 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. . . . E&Y Report, at 27-29, 107, 117. The Ernst & Young report was formally transmitted to the School Board on May 17, 2002, which is four days prior to the date that the RFQ was published in the Tampa Tribune. The Specification Protest Recommended Order and the Ernst & Young report were not critical of all aspects of Respondent’s procurement process. Both concluded that the procedural elements of the evaluation process utilized by the School Board were consistent with the procedural requirements in the CCNA. Specifically, the Ernst & Young report stated “[o]ur review of [the District’s] vendor’s [sic] selection process indicates in many respects, that the process follows traditional requirements established by SREF [State Requirements for Educational Facilities] and Florida Statute[s] . . . [and], in many instances, the procedures mirror those utilized by peer and contiguous school districts” (E&Y Report, at 27), and the Specification Protest Recommended Order similarly concluded 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. The only material difference is that the School Board has consolidated the second and third steps in the process -- i.e., qualification and competitive selection -- by interviewing every respondent and not just three pre-qualified firms as required by Section 287.055(4)(a). Accordingly, Petitioner failed to show that specifications of the RFQ are contrary to the School Board's governing statutes (i.e., Section 287.055) or its rules or policies. Specification Protest Recommended Order, at 35-36 (paragraph 84). Nevertheless, based upon the deficiencies in the RFQ described above, the Specification Protest Recommended Order recommended that: the School Board issue a final order that rescinds the request for qualifications published May 21, 2002, 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. Id. at 37. The School Board adopted the Specification Protest Recommended Order at its meeting on October 1, 2002, and consistent with the recommendation therein it rescinded the RFQ. DOAH Case No. 02-3138RP In response to the Ernst & Young report and Petitioner’s challenge to the RFQ specifications (and while DOAH Case No. 02-2230BID was pending), the School Board initiated the rulemaking process under Chapter 120, Florida Statutes, to adopt new policies and summaries of procedures to govern the acquisition of professional services pursuant to the CCNA. Petitioner timely challenged the proposed new policies and summaries of procedure pursuant to Section 120.56(2), Florida Statutes. The challenge was assigned DOAH Case No. 02- 3138RP. A formal administrative hearing was held, and on October 11, 2002, a Final Order was issued in DOAH Case No. 02-3138RP (hereafter “Rule Challenge Final Order”). The Rule Challenge Final Order dismissed Petitioner’s challenge to all of the proposed new policies and summaries of procedures except for that portion of proposed Section 7.31 of the Policy Manual which provided that interviews are optional for projects costing less than $1 million. The procedural aspects of the new policies and summaries of procedure are essentially the same as the practice followed by the School Board in the past pursuant to Section 7.14 of the Policy Manual and the unadopted “Capital Project Standard Procedures” document. However, the new policies and summaries of procedure addressed the deficiencies in the substantive elements of the School Board’s procurement process. In this regard, the Rule Challenge Final Order included the following observation: [T]he Proposed Rules address the fundamental deficiencies in the School Board's procurement process that were identified in the Ernst & Young report and the Recommended Order in DOAH Case No. 02-2230BID. The Proposed Rules require the factors/criteria upon which the applicants will be evaluated and the weights [sic] that will be given to each factor to be formulated and provided to the applicants in advance of each solicitation, and they require uniformity in the evaluation and scoring of the applicants by the Committee. The Proposed Rules also provide the necessary framework for the preparation of the project-specific forms and materials which will be prepared in connection with each RFQ/RFP, and they provide a discernable standards against which to judge those materials in the event of a Section 120.57(3) protest of the specifications of the RFQ/RFP or the award of the contract arising therefrom. Rule Challenge Final Order, at 57-58 (paragraph 145). The Rule Challenge Final Order was not appealed. Attorney’s Fees and Costs Incurred by Petitioner Petitioner was represented in DOAH Case No. 02-2230BID by attorney George Kickliter. Mr. Kickliter spent 25 hours on Petitioner’s behalf in DOAH Case No. 02-2230BID, and he charged Petitioner a fee of $200.00 per hour. Accordingly, Petitioner incurred a total of $5,000.00 in attorney’s fees in DOAH Case No. 02-2230BID. Petitioner incurred costs in the amount of $563.00 in DOAH Case No. 02-2230BID. That amount is attributable to the cost of the Transcript of the final hearing in that proceeding. Respondent stipulated that the attorney’s fees and costs incurred by Petitioner in DOAH Case No. 02-2230BID were reasonable.
The Issue The issue in this case, a bid protest, is whether Respondent, Orange County School Board (the School Board), acted contrary to its governing statutes, rules or policies when it awarded the alternative education drop-out prevention services request for proposal number 1401017 (the RFP) to Ombudsman Educational Services, LTD. (Ombudsman) instead of Catapult Learning, LLC (Catapult).
Findings Of Fact Catapult is a limited liability company organized in Delaware. Catapult currently holds the contract in Orange County for the Alternative Education Drop-out Prevention program. The School Board is a public entity responsible for procuring services for the Orange County public school system. Ombudsman is a for-profit corporation duly organized in Illinois. On or about January 31, 2014, the School Board issued the RFP, "requesting solicitations from experienced respondents with a proven track record in providing alternative education services to students at risk of dropping out or [who] have dropped out from school and seek to return to continue their education." Originally, the solicitations were to be filed "no later than 2:00 p.m. EST, on February 24, 2014." The RFP included the following admonition and time schedule: The District will attempt to use the time schedule as indicated below. Note: References to Ronald Blocker Education Leadership Center (RB-ELC) address is: 445 West Amelia Street, Orlando, FL 32801. The below dates and times are subject to change. All changes will be posted to the Procurement website as they become available. January 31, 2014 Solicitation Date February 10, 2014 Re-submittal conference at 1:00 p.m. RB-ELC, February 11, 2014 Request for Information (RFI) cut-off February 24, 2014 Proposal opening at 2:00 p.m., RB-ELC, Lobby Conference Room Proposal will be opened and only the company names will be announced March 6, 2014 Evaluation Meeting Date (Tentative Date) (8:30 a.m.) March 7, 2014 Notice of Intended Decision (Tentative Date)(8:00 a.m.) March 13, 2014 Presentations by Respondents (Tentative Date) March 14, 2014 Notice of Intended Decision Date (Tentative Date) April 8, 2014 Board Recommendation (Tentative Date) On February 19, the School Board issued Addendum No. 1 (the Addendum) which provided the new solicitation deadline, highlighted in red ink, of "11:00 A.M., EST on February 26, 2014." Additionally, the Addendum advised the potential bidders (or vendors) of "changes/clarifications" to the RFP: "REVISED PROPOSAL PRICE SHEET, APPENDIX A" with the sentence, "Please ensure you submit your proposal using this REVISED PROPOSAL PRICE SHEET," and a paragraph addition to the "Scope of Services." These announced changes were also highlighted in red ink. The evaluation criteria for the RFP were provided in section 5, "Evaluation of Proposals." Potential bidders were advised that the PEC would receive, publicly open, review, and evaluate the proposals. Additionally, the PEC reserved the right to "interview any, all or none of the Respondents . . . and to require formal presentations with the key personnel . . . before recommendation of award." Section 5.5, "EVALUATION CRITERIA," provided: Only proposals that meet the compliance requirements will be evaluated based on the following criteria. Shortlist Possible Points Evaluation Criteria I. Experience and Qualifications 100 Maximum Value 30% Weight II. Scope of Services 100 40% III.MWBE/LDB4/ Participation 100 10% IV. Proposal Price 100 20% 400 100% The Procurement Representative shall calculate all scoring and determine a ranking of all respondents. The PEC shall determine if presentations/interviews are necessary. Note: The District will post an intended decision recommending Respondents to move to the next phase to be review [sic] by interested parties on the SBOC website at www.procurement.ocps.net. Failure to file a protest within the time prescribed in Section 120.57(3)b, Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Once the allowed time period has passed this phase of the process will be completed. Presentations/Interviews: Should the PEC members request presentation or interview from shortlisted respondents the following evaluation criteria will apply: Presentation/Interview Evaluation Criteria Possible Points Maximum Weight Value I. Planning/Delivery of Service 100 40% II. Firm Experience 100 20% III. Evidence of Student Achievement 100 40% 300 100% The Procurement Services representative shall calculate all scoring and determine a ranking of the shortlisted firms based on the presentation/interview evaluation criteria. The highest ranked firms will be recommended for negotiation and award. Timely responses to the RFP were submitted by six vendors: Catapult, Ombudsman, Atlantic Education Partners, Advanced Path, Excel Alternative Schools, and Driven Academy. These responses were reviewed by the PEC which was composed of School Board personnel with various educational based backgrounds. On March 6, the PEC evaluated all six proposals according to the RFP stated evaluation criteria: experience and qualifications; scope of services; proposal price; and MWBE/LDB. Four of the six bidders did not provide the pricing proposal as a percentage of full time equivalent. All six vendors were awarded zero points for the proposal price, and each received zero value for the proposal price. The justification for each bidder receiving a zero score was based on the School Board's procurement representative's inability to provide an "apples to apples" comparison of the six pricing proposals. Ms. Nido, the School Board's procurement representative, affirmed the School Board's position that when a proposal is non-responsive it is not scored. Here, all six proposals were scored. The PEC evaluated and ranked all six vendors. The PEC then posted its short list evaluation rankings, which included the short list evaluation form. Both Catapult and Ombudsman scored the same ranking: 64.2. Below the ranking, the following sentence appeared: "Committee agreed by consensus to invite Catapult Learning, Ombudsman, and Atlantic Education Partners for interviews/presentations." Additionally, below this sentence the following language appeared: "Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under chapter 120, Florida Statutes." The 72 hour posting requirement will elapse on March 11, 2014 at 2:30 p.m. E.S.T. "The Orange County Public School Board is an equal opportunity agency." Catapult did not have a representative present during the March 6 meeting as Ms. Folsom, the local director, arrived late. It is the School Board's practice that if a member of the public appears late for an evaluation meeting, the staff will bring the public to the meeting room, knock on the meeting door and allow the public into the meeting. If the meeting is over, the public is not brought to the meeting room. No vendor filed a written notice of protest within 72 hours after the School Board posted the short list evaluation ranking. On March 6, the School Board posted a meeting notice that the PEC would meet on March 13 at 8:30 a.m. EST to hear the three bidders' presentations. Atlantic Educational was to make its presentation first, followed by Catapult and lastly, Ombudsman. The meeting notice also provided that the PEC would evaluate the three bidders' presentations immediately following the conclusion of the presentations. Later on March 6, Catapult made a public records request for all proposals submitted pursuant to the RFP. Catapult asked that the documents be sent via email or Catapult would have a staff member come to the "proper office" at the School Board. Catapult received the requested public records at its New Jersey office sometime after March 12, 2014. As scheduled, on March 13, the PEC met and heard the presentations of Atlantic Educational, Catapult, and Ombudsman, the three short list bidders. As set forth in the RFP, section 5.5., the criteria for the presentation evaluation included the following criteria: planning/delivery of service; firm experience; and evidence of student achievement. Four days later, the School Board posted the presentation ranking and presentation evaluation form. Out of a possible 100 points in each category, Catapult received 81 points for planning/delivery of service, 86 points for firm experience, and 83 points for evidence of student achievement, for a total of 250 points. Ombudsman received 88 points for planning/delivery of service, 87 points for firm experience, and 83 points for evidence of student achievement, for a total of 258 points. Below the presentation ranking, the following sentence appeared: "Committee agreed by consensus to enter into negotiation and contract award to the following vendor(s): Ombudsman." Additionally, below this sentence the following language appeared: "Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under chapter 120, Florida Statutes." The 72 hour posting requirement will elapse on March 20, 2014 at 9:00 a.m. E.S.T. "The Orange County Public School Board is an equal opportunity agency." On March 19, Catapult filed its notice of protest and posted the requisite bond. On March 28, Catapult filed its formal written protest, the Petition, and thereafter on April 18, filed an Amended Petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the presentation ranking that found Ombudsman to be the highest ranking bidder was not contrary to the School Board's governing statutes or the School Board's policies or rules, nor was it clearly erroneous, arbitrary, capricious or contrary to competition. DONE AND ENTERED this 5th day of June, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 5th day of June, 2014.
