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.
The Issue Whether the challenged portions of Respondent's Manual of Administrative Personnel Procedures (MAPP), which is incorporated by reference in School Board Rule 6Gx13-4D-1.022 (specifically) that paragraph in subsection C-2 of the MAPP which references Section 231.29, Florida Statutes, and the following language in subsection C-8 of the MAPP, under Florida Principal Competency (FPC) No. 11: "The principal who has TACTICAL ADAPTABILITY: looks at problems as if there were no rules, then decides what to do to resolve the situation tactfully") are invalid exercises of delegated legislative authority, within the meaning of Chapter 120, Florida Statutes, for the reasons asserted by Petitioner. Whether Petitioner has standing, pursuant to Chapter 120, Florida Statutes, to challenge these provisions.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, including the parties' Pre-Hearing Stipulation,2 the following findings of fact are made: Respondent (School Board) is a duly-constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Section IV, of the Florida Constitution, and Section 230.03, Florida Statutes. Petitioner is a resident of Miami-Dade County, Florida, and the parent of a child enrolled in the Miami-Dade County Public School System (MDCPS) as a ninth-grade student at Miami Killian Senior High School (Killian).3 Petitioner is currently serving as the parent representative on the Educational Excellence Council at Killian. As Petitioner states in her "resume" (Petitioner's Exhibit 18), she is "an advocate for better education," and, "as such . . . ha[s] participated in committees, written numerous research-based reports, attended countless School Board meetings,4 and testified at many public hearings." Over the years, when she has had concerns regarding practices or policies at her children's schools, she has made these concerns known to School Board administrators and School Board members. Petitioner is challenging, as an invalid exercise of delegated legislative authority as defined in Section 120.52(8), Florida Statutes, language found in parts of the School Site Administrator Performance Planning and Assessment System (PPAS), which is contained in section C of the Manual of Administrative Personnel Procedures (MAPP) and which, together with the remaining portions of the MAPP, is incorporated in, and made a part of, School Board Rule 6Gx13-4D-1.022. Subsection C-1 of the PPAS (which Petitioner is not challenging) sets forth the "[s]cope and [p]urpose" of the PPAS. It provides as follows: This section, effective with the 1998-1999 school year, sets forth the rules, regulations and procedures for the establishment, maintenance, and administration of the performance planning and assessment system applicable to school site managerial personnel. Subsection C-2 of the PPAS contains a "[s]tatement of [p]olicy." It provides as follows: The Miami-Dade County Public Schools Performance Planning and Assessment System was developed as an aid to improving the performance and developing the potential of every administrator. A performance plan mutually developed by the administrator and the supervisor consists of three major components: Developing plans directly linked to overall job functions as related to the job duties and responsibilities, school site target objectives, and/or major system objectives, as applicable. Improving job performance by reviewing past assessments and setting expectations for improvement or enhancement. Developing personal potential through emphasis on standards required for success and professional growth in the present job, as well as preparation for future career goals. In evaluating performance standards, the emphasis is placed on collecting data which indicate that the individual demonstrates or practices the performance standards established for the assigned position and the school site target objectives. The performance assessment procedures set forth herein shall be adhered to strictly. Administrators shall have their performance evaluated by their immediate supervisor (assessor) and their assessor's supervising administrator (reviewer) only. Formal assessments and evaluations placed in administrator's official personnel files shall be in compliance with the procedures and instruments of the Performance Planning and Assessment System. Administrators being appraised need to be aware of the rationale, intent and procedures of the performance assessment system in relation to their job assignment. Florida Department of Education Performance Assessment System guidelines: specify that a comprehensive performance assessment system is fair, equitable, and legally sound; establish procedures for the collection, retrieval and use of data to provide feedback to an individual, a team, and the system; provide data for recognizing high performance through a variety of means; consider the specific conditions of the site in establishing expectations; promote the growth and development of the individual and the continuous improvement of the organization; allocate time to plan, coach and counsel for higher performance; provide orientation on the system and skill development in observing, mentoring, coaching and counseling for those in and affected by the system. Administrators who manage the performance assessment system must have knowledge and skills that go far beyond an academic knowledge of the system. They must understand and be able to respond to evaluative data on the system. They must also be able to link the performance assessment system to the other components of the Comprehensive Human Resources Development System. Pursuant to Florida Statute 231.29, the system (district) must include a mechanism to give parents and teachers an opportunity to provide input into the administrators performance assessment, when appropriate. The district mechanisms include notification to parents of this provision printed on student report cards and notification to teachers of this provision through memorandum included in staff handbooks. [Underlining added.] Principals must ensure that all assistant principals are exposed to and/or have experience in the 19 Florida Principal Competencies and the five M-DCPS Technical Skills. There may be cases where an assistant principal may not be assigned to work with all of the competencies and all of the technical skills. However, all assistant principals must be exposed to these competencies and technical skills either through actual experience(s), or attendance at district sponsored workshops, or other professional growth activities. Petitioner is challenging the underlined language of subsection C-2 of the PPAS set forth above (Input Provision), which was added to School Board Rule 6Gx13-4D-1.022 (Rule) on or about November 7, 1997. Before amending the Rule to add the Input Provision, the School Board published a Notice of Intended Action (dated September 12, 1997), which read, in pertinent part, as follows: PURPOSE AND EFFECT: To amend Board Rule 6Gx13-4D-1.022, Manual of Administrative Personnel Procedures, by revising the document, Manual of Administrative Personnel Procedures (MAPP), which is incorporated by reference and is part of this rule, in order to be in compliance with new state legislation, Section 231.29 . . ., Florida Statute[s]. SUMMARY: The revised rule provides language describing the mechanism to be used in the District for giving parents and teachers input into administrative assessment as appropriate. . . . SPECIFIC AUTHORITY UNDER WHICH RULEMAKING IS AUTHORIZED: 230.22(2), F.S. LAW IMPLEMENTED, INTERPRETED, OR MADE SPECIFIC: 231.02; 231.0861; 231.087(1); 236.0811, F.S.; 6A-4.0083; 61-4.0084 FAC. In addition, the School Board placed an advertisement in the September 29, 1997, edition of the Miami Daily Business Review, which read, in pertinent part, as follows: NOTICE The School Board of Dade County, Florida, announces the following Board Rule action will be taken at its 1:00 p.m. meeting on: November 5, 1997 School Board Auditorium 1450 N. E. Second Avenue Miami, Florida 33132 To Amend: 6Gx13-4D-1.022, Manual of Administrative Personnel Procedures (MAPP), in order to be in compliance with new state legislation, Section 231.29 . . ., Florida Statutes[s]. Specific Authority: 230.22(2), F.S. Law Implemented, Interpreted, or Made Specific: 231.02; 231.0861; 231.087(1); 236.0811, F.S.; 6A-4.0083; 61-4.0084 FAC Although Section 231.29, Florida Statutes, was mentioned in the Input Provision, neither the "Specific Authority," nor the "Law Implemented, Interpreted or Made Specific" portions of the November 5, 1997, amended version of the Rule contained any reference to Section 231.29, Florida Statutes. It was not until the day after the October 21, 1998, School Board meeting (the last School Board meeting at which members of the School Board took action to amend the Rule) that Section 231.29, Florida Statutes, was added to the "Law Implemented, Interpreted or Made Specific" portion of the Rule. The addition was made, not by the members of the School Board, but by the School Board Clerk, Ileana Menendez, who believed that such action was authorized by School Board Rule 6Gx13-8C-1.061, which, at all times material to the instant case, has provided as follows: CORRECTION OF CERTAIN ERRORS IN RULES The Superintendent of Schools, as Secretary to the Board, shall have the authority to review the School Board Rules and when judged useful shall: Correct grammatical, typographical, and like errors not affecting the construction or meaning of the rules; Keep a record of corrections made pursuant to subsection 1; and Report to the Board any corrections made. Ms. Menendez reported the "correction" she had made to the Office of the School Board Attorney. The English version of the "notification to parents . . . printed on student report cards,"5 which is referred to in the Input Provision, reads as follows: FLORIDA LAW PROVIDES FOR PARENT INPUT ON TEACHER/ADMINISTRATOR PERFORMANCE, WHEN APPROPRIATE. FOR MORE INFORMATION, CONTACT THE SCHOOL, PRINCIPAL, OR THE REGION OFFICE. By providing such notification, the School Board alerts the parent to the parent's opportunity to provide (at any time the parent deems appropriate) information and opinion regarding an administrator's performance for consideration by those (specially-trained individuals) charged with the responsibility of evaluating the administrator's performance. The significance of the "19 Florida Principal Competencies" referred to in the paragraph immediately following the Input Provision is described in subsection C-7 of the PPAS, which reads as follows: PERFORMANCE CRITERIA In order to qualify for a rating Distinguished Performance Standards on the annual evaluation form, assessees must be rated Distinguished Performance Standards on 18 out of the 19 Florida Principal Competencies and rated as Distinguished Performance Standards on five out of the five M-DCPS Technical Skills, and on Performance Related to Job Targets. In order to qualify for a rating Commendable Performance Standards, assessees must be rated as Commendable Performance Standards on 17 out of the 19 Florida Principal Competencies and rated as Commendable Performance Standards on four out of the five M-DCPS Technical Skills. Performance Related to Job Targets must be at least 90% accomplished (C-8 through C-11). In order to qualify for a rating Competent Performance Standards, assessees must be rated as Competent Performance Standards on 16 out of the 19 Florida Principal Competencies and rated as Competent Performance Standards on three out of the five M-DCPS Technical Skills. Performance Related to Job Targets must be at least 80% accomplished (C-8 through C-11). Assessees not exhibiting the minimum number of indicators listed for each standard of the 19 Florida Principal Competencies and/or the five M-DCPS Technical Skills, and/or who have not met their Performance Related to Job Targets will receive an overall rating of Below Expectations on Performance Standards and will require a Professional Improvement Plan (C-8 through C-11). The "19 Florida Principal Competencies" are listed and explained in subsection C-8 of the PPAS. "Florida Principal Competency" (FPC) No. 11 is "tactical adaptability," which is described in subsection C-8 of the PPAS as follows: TACTICAL ADAPTABILITY is the ability to adapt one's interaction and behavior to fit the situation. (3 out of 4) DIMENSIONS: ADAPTABILITY: Maintaining effectiveness in varying environments, tasks, responsibilities or with people; FLEXIBILITY: Modifying behavior to reach a goal; INDIVIDUAL LEADERSHIP: Utilizing appropriate interpersonal styles to guide individuals to task accomplishment. The principal who has TACTICAL ADAPTABILITY: adopts roles of listener, facilitator and confronter as needed finds ways to get around policies and procedures which interfere with the school's goals looks at problems as if there are no rules, then decides what to do to resolve the situation tactfully understands how own behavior affects others and makes appropriate adjustments. Except for the language in numbered paragraph 11.2, which Petitioner is no longer challenging (as a result of the School Board's agreement to initiate action to replace it with other language agreeable to Petitioner6), the foregoing, including the language in numbered paragraph 11.3 (Paragraph 11.3), the validity of which (along with the Input Provision) Petitioner disputes, is a verbatim recital of language contained in the Florida Principal Competencies section of the Human Resources Management and Development System Guidelines in Florida's School Districts developed, after study and scientific research, by the Florida Council on Educational Management.
The Issue Pursuant to Section 120.57(3)(f), Florida Statutes, the issue is whether Respondent's proposed rescission of an award of a design-build contract to Petitioner for the construction of additions to two high schools was contrary to the Respondent's governing statutes, rules or policies or contrary to the specifications of Respondent's request for qualifications.
Findings Of Fact On March 30, 2004, Respondent issued a Request for Qualifications (RFQ) for design-build firms to design and construct additions at Southwest Miami Senior High School and Miami Killian Senior High School. The RFQ invites parties to submit proposals, if they are interested in performing the design and construction of three-story additions at each school (the subject projects). Respondent had used the design-build approach for school construction for the past seven to ten years. In this process, the contractor assumes the responsibility for most of the project, as well as, of course, the project construction. For the subject projects, Respondent entered into a contract with a Design Criteria Professional (DCP) to represent Respondent, as the owner, in certain aspects of the construction project. The DCP for these projects is Santos/Raimundez Architects, P.A. The contract between Respondent and the DCP states that Respondent has selected the DCP based, in part, on its designation of specialists, including Fraga Engineers for the mechanical and electrical work. The contract provides that any such specialists that are subconsultants to, rather than employees of, the DCP will enter into subcontracts with the DCP, but not Respondent. The DCP and its designated specialists form the DCP Team, which performs various tasks in connection with each project. These tasks include site investigations to determine project feasibility, the production of project-specific Phase I or schematic drawings from the master specifications that Respondent maintains for school construction, and the issuance of a building permit for the schematic design. Once the contractor commences construction, the DCP Team visits the site to protect Respondent, as the owner, from deviations from the approved design. The DCP Team also approves draws based on the percentage of work completed and change orders, as appropriate. The DCP Team performs about 10-15 percent of the overall design for a project. For the subject projects, the DCP Team spent seven months in performing its responsibilities prior to Respondent's selection of a contractor. The only involvement of Fraga Engineers with the subject projects is for the mechanical and electrical work noted above, as well as plumbing and fire-suppression work of a similar nature for which the DCP also contracted. For the subject projects, Petitioner retained Silva Architects as its architect and primary team member, and Silva Architects entered into a subcontract with Louis Aguirre for the mechanical, electrical, plumbing, and fire-suppression design and construction. The principal of Silva Architects and the principal of Fraga Engineers are, respectively, husband and wife. There is no indication in this record of any improper communications between Mr. Silva and Ms. Fraga concerning the contents of the RFQ or the Phase I drawings, as prepared by Respondent, or the contents of the proposal, as prepared by Petitioner. However, at the time of this solicitation, Fraga Engineers was serving as the engineering firm on at least two of Petitioner's projects, although her firm probably was under contract with Silva Architects, not Petitioner. Except for the following provision, the RFQ does not address potential conflicts between an offeror and Respondent. RFQ Paragraph I.H provides: Any proposer desiring to participate in this process must not have as part of its team an A/E [architectural/engineering] firm presently under contract with the Board for a specific project for which the proposer, or any member thereof, is performing as the general contractor. The Board considers this a conflict of interest and such proposals will not be eligible for award under this RFQ. Petitioner and Intervenor submitted timely proposals to Respondent. Among several offerors submitting proposals, Petitioner submitted the lowest bid, at $17,536,000, followed closely by Intervenor's second-lowest bid, at $17,556,000. Finding Petitioner's proposal acceptable in all respects, Respondent's School Board awarded the contract to Petitioner at its meeting of June 16, 2004. On the same day, Intervenor filed a notice of protest, followed by a timely formal written protest. The formal written protest, which is in the form of an undated letter from Intervenor's counsel to Respondent and Respondent's counsel, states that Intervenor was not allowed to bid on projects where its architect/engineer was on Respondent's DCP Team for another project. The formal written protest argues that Ms. Fraga, or her company, is part of Petitioner's team on other pending projects while she, or her company, is part of Respondent's DCP Team. Respondent conducted an informal conference with Intervenor and later with Petitioner in an attempt to resolve the matter. Failing in that effort, Respondent's counsel issued a letter, dated August 25, 2004, in which he recommended that Respondent's School Board rescind the proposed award to Petitioner. In his letter, Respondent's counsel reasoned that the spousal relationship between Petitioner's architect and the engineering firm under contract with Respondent's architect "would create a continuing and unavoidable conflict of interest that will inure to the benefit of either of these parties in violation of the General Requirements of the Bid, or at a minimum, could create a perceived or potential conflict of interest." In his letter, Respondent's counsel stated that "we disagree" with the recommended order entered in SBR Joint Venture v. Miami-Dade County School Board, DOAH Case No. 03-1102BID (August 1, 2003), in which the Administrative Law Judge concluded, among other things, that a bidding contractor's team did not include subcontractors under contract with the contractor's architect, rather than directly with the contractor. Unless the pronoun refers to the legal counsel's office or a committee formed to resolve the bid dispute, the "we" in the letter of Respondent's counsel is unclear because Respondent's School Board entered a final order on August 20, 2003--one year and five days before the letter of Respondent's counsel--adopting the recommended order. Another confusing part of counsel's letter is an explanatory footnote, in which Respondent's counsel unsuccessfully distinguishes the present case, in which Silva Architects is directly under contract with Petitioner, from SBR Joint Venture, in which the third-tier subcontractor was under contract with the general contractor's architect, not the general contractor. (In SBR Joint Venture, as in the present case, the so-called "third tier" subcontractor has a contract with the "second tier" architect, but not the "first tier" contractor.) The question in this case is not whether the second-tier Silva Architects is part of Petitioner's team-- clearly, it is. A major question in this case is whether Fraga Engineers is part of Petitioner's team--clearly, it is not, unless Ms. Fraga and Mr. Silva are interchangeable due to their marriage or her company's third-tier participation in other projects of Petitioner is attributed to the subject projects. In any event, before Respondent's School Board could take up its counsel's recommendation, Petitioner protested the recommendation, and this case ensued.
Recommendation It is RECOMMENDED that Respondent enter a final order awarding the contract to Petitioner. DONE AND ENTERED this 14th day of December, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 14th day of December, 2004. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Ira Libanoff Ferencik Libanoff Brandt Bustamante and Williams, P.A. 150 South Pine Island Road, Suite 400 Fort Lauderdale, Florida 33324 Luis M. Garcia Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132 J. Alfredo de Armas Alvarez, Armas & Borron, P.A. 3211 Ponce De Leon Boulevard, Suite 302 Coral Gables, Florida 33134
The Issue Whether Petitioner has cause to terminate Respondent's continuing contract of employment as a classroom teacher.
Findings Of Fact The School Board of Palm Beach County, Florida (School Board), is charged with the duty to operate, control, and supervise the public schools within Palm Beach County. Section 4(b), Article IX, Florida Constitution. Petitioner has been authorized to act on behalf of the School Board in this proceeding. The respective duties and responsibilities of the School Board and the Superintendent are set forth in Chapter 230, Florida Statutes. Respondent has been employed by the School Board as a classroom English teacher pursuant to a continuing contract since 1965. At all times pertinent to this proceeding Respondent taught high school English at BRCHS. On October 25, 1999, the then-serving Superintendent of Schools reassigned Respondent to an administrative position in the Division of Personnel Services, effective October 26, 1999. Respondent has not taught in the Palm Beach School District since his reassignment. The Classroom Teachers Association (CTA) is a union that represents members of the Palm Beach County School District’s instructional staff. Respondent has been a member of the CTA at all times pertinent to this proceeding. Section 231.29(1), Florida Statutes, requires each school district to establish procedures for assessing the performance of duties and responsibilities of certain employees, including classroom teachers with continuing contracts. The Florida Department of Education (DOE) must approve each school district's personnel assessment system. The School Board has adopted a personnel assessment system, described below, that has been approved by DOE. As required by Florida law, School District administrators evaluate the work performance of teachers at least once a year. The Classroom Teachers Assessment System (CTAS), the assessment system used by the Palm Beach County School District, requires that prior to any evaluation, a qualified administrator observe the teacher’s classroom performance for a minimum of twenty minutes, recording any noted strengths and identifying weaknesses that should be remediated. An observation may be recorded in a narrative form or in a summative form. Following the observation, the administrator completes the evaluation form, which requires that the teacher be rated in 16 skill areas. The rating for each skill area is a score of two for an acceptable area or a one for an area of concern (an area of deficiency). At the beginning of every school year, teachers receive a Teacher Evaluation Handbook (Handbook) that describes the evaluation form, criteria, and rating scale that Petitioner uses to evaluate the job performance of employees with continuing contracts or professional services contracts. The evaluation form lists a total of 16 skill areas under the following headings: "Instructional Process," "Professional Proficiencies," and "Professional Responsibilities" as follows: INSTRUCTIONAL PROCESS Management of Student Conduct Instructional Organization and Development Presentation of Subject Matter Communication: Verbal and Nonverbal PROFESSIONAL PROFICIENCIES Establishes an Appropriate Classroom Climate Demonstrates Knowledge of Subject Matter Demonstrates Ability to Plan Effectively Demonstrates Ability to Evaluate Instructional Needs Demonstrates Effective Written Communication Skills Develops and Maintains an Accurate Record Keeping System PROFESSIONAL RESPONSIBILITIES Demonstrates a Commitment to Growth Demonstrates Self Control Demonstrates Effective Working Relationship with Coworkers Demonstrates Effective Working Relationship with Parents Adheres to and Enforces School Policies Performs Duties as Assigned by the School Administration The Handbook provides criteria that explain each one of these categories on the evaluation form. Teachers who receive an unsatisfactory performance evaluation are placed on a 30-day school-site assistance plan. If the teacher’s performance has not sufficiently improved by the end of the 30 days, the teacher is thereafter placed on a 90-day district-level assistance plan. Prior to the end of the 90-day period, the teacher’s performance in the classroom is evaluated again. If that teaching performance is still rated unsatisfactory, the teacher can be recommended for dismissal. This process applies to both Professional Service Contract (PSC) teachers and Continuing Contract (CC) teachers. The CTAS has been incorporated by reference into the collective bargaining agreement (CBA) between the School District and the CTA. 1/ Article II, Section M of the CBA is titled Discipline of Employees (Progressive Discipline) and provides, in pertinent part, as follows: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. * * * 7. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school board rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. . . . Written Reprimand. . . . Suspension Without Pay. . . . Dismissal. . . . Diane Harris became the principal of BRCHS in August 1997, taking over for Norman Shearin. Prior to her appointment, Ms. Harris served as an administrator in the Area Office and was assigned to the instructional support team. Pursuant to her duties under the CTAS, Ms. Harris observed one of Respondent’s classes on October 23, 1997. She observed what she considered to be several areas of deficient performance. Ms. Harris subsequently met with Respondent to address these concerns and make suggestions on how he could improve his teaching performance. Respondent was not receptive to her comments. Respondent’s final evaluation for the 1997-98 school year was rated satisfactory overall. Ms. Harris testified, credibly, that she rated all the teachers that year as being satisfactory because she wanted to observe all teachers during her first year as principal so she could formulate a plan for the following year. The concerns noted during her October observation of the Respondent were never made a part of his final evaluation for 1997-98. Ms. Harris rated Respondent's performance as being satisfactory despite the fact that she was aware that Respondent’s review for the prior year (under Dr. Shearin) had been unsatisfactory. Every year, the BRCHS English Department takes students on a field trip to the Caldwell Theater to view a theatrical production. On November 4, 1998, Respondent’s first period English class was scheduled to go on that field trip. That morning, however, several of his students appeared at the school’s front office and complained to Ms. Harris that Respondent would not allow the entire class to go on the field trip because some students had thrown “spit wads” during class. Rather than punish the students who were responsible, Respondent inappropriately punished the whole class. Because half of the English Department was going on the field trip that day and half the next day (November 5, 1998), Ms. Harris arranged for Respondent’s students to go on the field trip on November 5, 1998. She was unable to meet with Respondent on November 4, 1998 because, when she went to look for him to inquire about his actions, he had already left on the bus with other students to go to the theater. When Ms. Harris was finally able to speak to Respondent either that day or the following day, Respondent accused her of preempting his absolute authority over his class. On November 6, 1998, Ms. Harris issued a memorandum to Respondent outlining her concerns about the field trip incident. In that memorandum, Ms. Harris also noted that she was concerned about the frequent number of disciplinary referrals for assistance from the deans Respondent would make on a daily basis. As a result of those concerns, Ms. Harris provided Respondent with a handout from the CTAS listing the performance criteria for Management of Student Conduct, which included implementing a discipline plan. Ms. Harris specifically directed Respondent to prepare such a written discipline plan and provide it to her by November 9, 1998. On November 17, 1998, Respondent provided to Ms. Harris a copy of a one-page typed document outlining eight rules of conduct which he handed out at the beginning of each school year to his students. On the copy provided to Ms. Harris, the Respondent noted that he also followed the student/teacher handbook. Attached to the document was a copy of a page from an outdated student/teacher handbook. On several occasions Ms. Harris informed Respondent that his discipline plan was inadequate. Thereafter, Ms. Harris consulted with Ms. Stafford, an assistant principal of BRCHS, and obtained a number of documents from the School District’s Professional Standards Office to aid Respondent in properly preparing a discipline plan. By memorandum dated December 18, 1998, Ms. Harris directed Respondent to provide her with a discipline plan by January 8, 1999. When a student is removed from a classroom as the result of misbehavior, he or she is sent to a supervised study area called the opportunity room. On November 24, 1998, Ms. Harris met with Respondent regarding the large volume of referrals he was issuing, which resulted in the students being referred to the opportunity room. At mid-year, Respondent had issued approximately 70 to 75 such referrals. By the end of the school year, Respondent had issued 146 such referrals. In addition to the number of referrals, Ms. Harris received complaints from parents that two particular students were being regularly referred to the opportunity room, that these two students received failing grades, that they were not given progress reports, and that their work was misplaced. Ms. Harris also received a complaint from a student that Respondent had sent the student to the opportunity room without giving the student a way to make up class work. Respondent requested another meeting and offered to justify the referrals he had made, but the meeting was never held. 2/ On December 4, 1998, Ms. Harris made an informal observation of Respondent’s first period class. Ms. Harris observed that the classroom setting was chaotic, students ignored Respondent, and there was no flow or continuity of instruction. All teachers are required to turn in weekly lesson plans reflecting objectives, materials, assessment tools, and activities. In January 1999, Respondent turned in lesson plans for the second term of English 10 and 11. His plans for English 11 were merely a duplicate of his plans for English 10. Subsequently, Ms. Harris repeatedly instructed Respondent to turn in appropriate lesson plans for English 11. Despite those clear instructions from Ms. Harris, Respondent did not turn in appropriate lesson plans for English 11. Ms. Harris decided to give Respondent a mid-year evaluation. The evidence presented by Petitioner established that Ms. Harris was justified in determining that a mid-year evaluation was appropriate. 3/ Ms. Harris assigned Dr. Robert Murley, an assistant principal at BRCHS, to perform a summative observation of Respondent on February 2, 1999. On the day Dr. Murley observed Respondent, Respondent was approximately five minutes late to class. At one point during the observation, Dr. Murley observed that more than half the class was not engaged in learning. The students were either talking or sleeping, or staring off into space, or looking out the window. Dr. Murley further observed Respondent talking above the class rather than getting them to pay attention. Dr. Murley observed the class for over an hour in the hope that things would get better, but they did not. During the 75 minutes that Dr. Murley observed Respondent’s class, he noted 42 times where the students were engaged in misconduct, with Respondent failing to address the misconduct in 12 instances. Respondent’s lessons failed to include meaningful learning and motivational techniques. Overall, Dr. Murley felt that there was very little learning going on and that Respondent was having a lot of difficulty keeping the class aware of what he was trying to teach them and trying to keep them engaged. On February 5, 1999, Dr. Murley met and reviewed his observations with Respondent. Respondent listened to some of the suggestions but not all of them. Respondent did not contest any of Dr. Murley’s observations on the summative form at that time. Subsequently, Dr. Murley attended a meeting with Respondent, his union representative, Ms. Harris, and Ms. Stafford. At that subsequent conference, Respondent resisted all suggestions and criticized Dr. Murley’s observations. As a result of Dr. Murley’s observation and Ms. Harris’ other concerns, Ms. Harris gave Respondent an unsatisfactory rating on the mid-year evaluation. On February 22, 1999, Ms. Harris met with Respondent and gave him the evaluation; Respondent signed the evaluation under protest. Respondent accused Ms. Harris and Ms. Stafford of “obsessive misanthropy.” This can only be construed as an attack on their professionalism and an accusation that they were biased against male professionals. On March 3, 1999, another conference was held, at which time Respondent presented his written rebuttal 4/ disputing each of Ms. Harris’ concerns from the February 22nd meeting. Respondent was not receptive to any suggestions, and the meeting itself was adversarial. By memorandum dated March 8, 1999, Ms. Harris notified Respondent that he was being placed on a 30-day school-site assistance plan, and that failure to improve his performance could result in further action. A copy of the written assistance plan was provided to Respondent at that time. Respondent was also provided with copies of letters and reports from students in Respondent’s classes regarding the climate in the classroom and Respondent’s evaluation of students. On March 10, 1999, Ms. Harris met with Respondent, together with Dr. Jeanne Burdsall, Director of Professional Standards, and Diane Curcio-Greaves, a specialist from the Professional Standards Department, regarding the school-site assistance plan. Dr. Burdsall and Ms. Curcio-Greaves developed a checklist for the 30-day plan. As part of the plan, Respondent was to observe another teacher’s class, turn in a discipline plan by March 22, 1999, and work with a Peer Assistance and Review (“PAR”) Consulting Teacher. Respondent and his union representative consented to his referral for PAR assistance. Follow-up meetings to review progress under the plan were scheduled for approximately every ten days. On or about March 15, 1999, Respondent provided a written response to Ms. Harris, contesting the charges against him. On March 17, 1999, Ms. Curcio-Greaves arranged for Respondent to observe a class at Atlantic High School. During that observation, Ms. Curcio-Greaves pointed out to Respondent certain teaching behaviors that she considered effective. Two areas were focused upon: management of student conduct and instructional organization and development. Respondent could have benefited from observing that class, but he resisted the efforts of Ms. Curcio-Greaves to help him improve his performance. On March 16, 1999, as part of the on-site school assistance plan, Virginia McGrath, a member of the Area Office’s Instructional Support Team and a certified CTAS evaluator, observed one of Respondent’s classes for approximately one hour and noted several areas for improvement. Specifically, she observed that Respondent did not review the assignment with the class, and that the students did not seem to understand the material being covered. Further, Respondent would not answer the questions of students who were unclear about the materials and/or the assignment and allowed too much down time. Ms. McGrath did not observe any actual teaching by Respondent during this observation. On March 18, 1999, Ms. Harris conducted a school-wide training session regarding the new CTAS evaluation system, which had been negotiated by the School District and the CTA and approved by DOE. Respondent attended the training. On March 19, 1999, pursuant to the terms of the on- site school assistance program, Ms. Harris again met with Ms. Curcio-Greaves and Respondent to review his progress under the on-site plan. During the meeting, Respondent complained that he should not be involved in the observation process, and he was not receptive to Ms. Curcio-Greaves’ observations. Instead, Respondent was critical of the teachers he observed and opined that Atlantic High School was a bad school overall. Pursuant to Respondent’s request at that meeting, Ms. Harris scheduled a follow-up meeting for March 23, 1999, to further discuss Respondent’s evaluation. On April 9, 1999, a follow-up meeting was held to review Respondent’s progress under the school assistance program. By this time, Respondent had still not provided the required classroom management plan; rather, he had only turned in a copy of the rule book. At the meeting, Respondent was informed of a professional standards workshop on presentation of subject matter and planning, to take place on April 27, 1999. As part of the school assistance plan, Respondent attended that workshop. Also pursuant to the school assistance plan, the PAR panel granted, on April 15, 1999, Respondent’s request for inclusion in the program, and assigned a PAR Consulting Teacher. On April 15, 1999, Dr. Burdsall attended an evaluation meeting with Respondent, Ms. Harris, and Mr. Matulaitis. During the meeting, Respondent stated that the principal was unprofessional, and commented that one particular student and that student’s father were “not too bright.” Respondent also stated (referring to Dr. Burdsall and Ms. Harris) that, “The ladies are unable to handle this, you live in a fluffy world,” and responded to a question by Dr. Burdsall with “no, my love, no.” Respondent was insulting to Ms. Harris and Dr. Burdsall and resisted the remedial assistance being provided to him. On April 16, 1999, pursuant to the CTA CBA, Ms. Harris notified Respondent that she would be observing his class during the week of April 19-23, 1999. Subsequently, Ms. Harris conducted the observation of Respondent’s classroom on April 22, 1999, and prepared a narrative report of her observations. Based upon her observations, Ms. Harris concluded that Respondent still did not have adequate control of his classroom environment and was exhibiting the same deficiencies as she had noted in the February 1999 evaluation. By memorandum dated April 26, 1999, Ms. Harris informed Respondent of her observations and, on April 30, 1999, personally met with him to discuss the matter further. Respondent did not agree with the assessment. Ms. Harris provided to Respondent a follow-up memorandum on May 5, 1999. By memorandum dated April 23, 1999, Mr. Matulaitis requested that the completion date for the school-site assistance plan be extended, as some items had not yet been completed. Upon review of the matter, Ms. Harris noted that most items had been completed without any noticeable improvement by Respondent. Specifically, Ms. Harris had still not received the discipline plan she had requested back in November, nor had Respondent provided to her revised lesson plans. Further, none of the observations of his classes showed any change in strategies in the classroom. In addition, Respondent became more adversarial and abusive at each follow-up meeting and consistently resisted suggestions. Ms. Harris denied Mr. Matulaitis’ request to extend the completion date for the school-site assistance plan. Dr. Mary Gray, a professor at Florida Atlantic University, is an expert in teacher evaluation who works with the school district as a consultant in teacher evaluation cases. Dr. Gray met Respondent on April 27, 1999, when he attended a workshop she conducted on planning for instruction and presentation of subject matter (including classroom management and questioning techniques) as part of his remediation program. Dr. Gray testified that Respondent appeared resistant to participating in the workshop. On May 4, 1999, Ms. Harris notified Respondent that she would provide transportation for him to go to another school and observe another teacher’s classroom as part of his remediation plan. Ms. Harris further informed Respondent that she would provide a substitute teacher for his classes that day. On that same date, Respondent signed the notification under protest and asked for the trip to be rescheduled. On May 5th and 6th, however, Respondent was absent from work. On May 6, 1999, Ms. Harris notified Respondent that his May 5, 1999, meeting to observe an ESOL (English for Speakers of Other Languages) teacher had been rescheduled for May 10, 1999, due to Respondent’s absence on May 5th. This was one of the last open items remaining on Respondent’s school-site assistance plan. By letter dated May 6, 1999, Ms. Harris requested then Superintendent of Schools, Dr. Joan P. Kowal, to place Respondent on a 90-day performance probation, because Respondent had completed the school-site assistance plan without making any improvement in the noted areas of deficiency. On May 11, 1999, Respondent received his year-end CTAS evaluation. The evaluation noted the same deficiencies as had been noted on the February evaluation. The evaluation rated Respondent as unsatisfactory overall, and noted that a 90-day district-level assistance plan would be implemented. By letter dated May 12, 1999, Superintendent Kowal formally advised Respondent that he had been placed on 90-day performance probation and that he would receive a Professional Development Plan (the district plan) to support remediation of the deficiencies. Also on May 13, 1999, Ms. Harris provided to Respondent copies of letters from students and one parent regarding the climate in Respondent’s classroom and Respondent’s failure to appropriately evaluate student needs. Ms. Harris testified that the student concerns were addressed in the form of a petition, and that she had never received such a document for any other teacher at BRCHS. Ms. Harris referred Respondent to specific sections in the school-site assistance plan for suggestions on improvement strategies in the noted areas of concern. On that same day, Ms. Harris also requested that Superintendent Kowal revise the district plan to delete the seventh area of concern (working relationships with parents) as a result of the disposition of a grievance Respondent had filed about his evaluation. Ms. Harris had been told by her supervisor that it would be more beneficial for Respondent to concentrate on the other six areas, which more directly affected Respondent’s instructional activities. Respondent’s May 1999 evaluation was also changed accordingly. On May 14, 1999, the ESOL teacher assigned to meet with Respondent pursuant to the school-site assistance plan reported to Ms. Harris that Respondent had been resistant to the ESOL teacher’s suggestions as to the use of ESOL strategies. At a meeting on May 19, 1999, Respondent was officially placed on a 90-day district plan and notified of his right to a deficiency hearing -- which he requested. At that meeting, a checklist for the district plan was developed. Everyone agreed to the plan and agreed that it complied with the CTA CBA. Neither Respondent nor the CTA objected to the fact that Respondent had been placed on the 30-day and 90-day programs. The deficiency hearing to review the 90-day district plan was conducted with Cheryl Alligood serving as the hearing officer. The hearing was held before Ms. Alligood, the principal, the union representative, and the teacher. The purpose of a deficiency hearing is for the union representative to come with the teacher and the principal to review what concerns there may have been and whether sufficient assistance is being provided to the teacher by the district plan. Respondent, who was represented by counsel at the deficiency hearing, asserted that his performance was not deficient and that Ms. Harris was “out to get him.” Subsequently, Ms. Alligood found sufficient reason to continue Respondent on the district plan. Respondent received notice of that determination on July 6, 1999. Pursuant to Respondent’s agreement, Dr. Burdsall arranged for Respondent to observe a Dwyer Award recipient or nominee. A Dwyer Award is given for excellence in teaching. Respondent did not keep his appointment that had been set up by Dr. Burdsall. The observation was rescheduled, but again, the Respondent did not show up. Respondent also failed to attend a workshop set up by the PAR teachers specifically for the purpose of helping him remediate his particular teaching deficiencies. Dr. Burdsall offered Respondent the opportunity to attend a different workshop. Again, he did not attend. During the 1998- 99 school year, several remedial workshops were recommended to Respondent to assist in his professional development that he did not take advantage of. On May 27, 1999 (about a week before the end of the school year), Dr. Gray observed Respondent’s teaching performance in the classroom, at which time she noted he was deficient in several areas. The most critical deficiency Dr. Gray noted was that Respondent was not performing at the minimal teaching level. Based on her observations, Dr. Gray did not consider Respondent to be a competent teacher. Following the observation, Dr. Gray met with Respondent to review the results of her observation and to offer constructive criticism. Respondent was defensive and clearly resented being involved in the observation/remediation process. Respondent angrily voiced that resentment to Dr. Gray. Respondent subsequently provided Ms. Harris with a written response to Dr. Gray’s observations, disagreeing with each one. Respondent’s district plan extended through the summer. Dr. Burdsall met with Respondent following the summer break and determined that Respondent had not done anything over the summer to try to help his remediation process. At the August 13, 1999, meeting, Dr. Burdsall, Ms. Harris, and Mr. Matulaitis agreed it would be beneficial for Respondent to attend a couple of workshops on management of student conduct and instructional strategies. In addition, it was decided that the PAR teacher would continue for the 1999-2000 school year. Dr. Burdsall testified that the meeting was unlike any other assistance review meetings she has had because of the adversarial, abusive attitudes of Respondent and his union representative. Dr. Burdsall was under the impression that Respondent was never going to remediate. On August 26, 1999, pursuant to the 90-day district plan, Tcherina Duncombe, a specialist in the Professional Standards Office, conducted an hour-long observation of Respondent’s classroom and prepared a narrative report of her observations. Ms. Duncombe determined that Respondent needed improvement in the same areas that had been of concern during the prior school year, including management of student conduct, instructional organization and development, and establishing an appropriate classroom climate. Ms. Duncombe observed that Respondent’s instruction that day was not organized and was ineffectual, and that his directions were unclear. Further, Respondent failed to discipline some students for talking in class and making inappropriate comments, but then would discipline others in an inappropriate manner. Ms. Duncombe subsequently discussed her findings and suggested improvement strategies with Respondent, but he did not appear to be receptive. During the one-hour review session Ms. Duncombe had with Respondent, Respondent spent most of the time making negative comments about the district plan and Ms. Harris. Based upon the information contained in the narrative, Ms. Harris determined that Respondent had not made any improvement in his classroom teaching performance. On September 9, 1999, Respondent provided a written response to Ms. Duncombe’s observations, taking issue with each point made by Ms. Duncombe. On September 18, 1999, Respondent was notified via certified mail that a second observation would take place during the week of September 21, 1999, by Ms. McGrath, as part of the district plan. At the same time, Respondent was informed that a previously scheduled meeting had been reset to September 21, 1999. Ms. McGrath conducted her second observation of Respondent on September 22, 1999. Again, Ms. McGrath did not observe any actual teaching, and Respondent again failed to review materials with the students and clarify any confusing assignments. Ms. McGrath also observed students talking in class (including the utterance of a couple obscenities) and passing notes. In addition, Respondent was inconsistent with requests for bathroom leaves. Further, Respondent had not implemented any of Ms. McGrath’s recommendations from the previous observation (there was no defined lesson and Respondent was not meeting the needs of all his students). After the second observation, Ms. McGrath was concerned about Respondent’s competency as a teacher. Based upon the information contained in Ms. McGrath’s summary of her observation, Ms. Harris determined that Respondent still had not made any improvement in his classroom teaching performance. Dr. Burdsall was present during a September 21, 1999, district plan meeting wherein the evaluations of Ms. Duncombe and Dr. Gray were reviewed. Respondent insulted Dr. Burdsall again. Dr. Burdsall testified that she had never had a teacher become abusive when she was trying to provide assistance. Rather than walk out of the meeting, Dr. Burdsall continued to try and provide assistance to Respondent. Despite Respondent’s attitude, Dr. Burdsall continued to make efforts to assist Respondent and get him to see other teachers. On October 4, 1999, Ms. Harris received a letter from a student concerning Respondent’s teaching methods. Ms. Harris testified that the complaints in the letter were consistent with the same pattern of deficiencies exhibited by Respondent on other occasions. Ms. Harris provided copies of the letter to Respondent and, on October 7, 1999, scheduled a brief meeting with him to discuss the letter. The meeting was held on October 8, 1999. At the meeting, Respondent was also given a copy of an observation summary conducted by Dr. Penny Beers, the curriculum specialist for the School Board's language arts program, discussed infra. Further, Ms. Harris notified Respondent that she would be observing his classroom the week of October 11, 1999. On October 5, 1999, Respondent, through his counsel, filed a Petition for Writ of Prohibition in the Fifteenth Judicial Circuit Court in and for Palm Beach County, Florida. In that action, Respondent sought the issuance of a writ of prohibition directing the School Board to cease the 90-day district-level remediation program and restraining the School Board from treating Respondent as a PSC teacher. Respondent argued that, as a CC teacher under Section 231.36, Florida Statutes, he could only be dismissed for immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. Respondent further argued that the 90-day district plan could not be applied to CC teachers. By order dated November 1, 1999, following oral argument on the issue, the Circuit Court denied Respondent’s Petition. On October 6, 1999, Dr. Beers conducted an observation of Respondent’s classroom as part of the district plan. Although Dr. Beers made several commendations in her observation summary, she made even more recommendations for improvement. Based upon her one-hour observation, Dr. Beers felt that Respondent had not demonstrated his competence as a teacher because she saw very little instructional time used during that one-hour period. Specifically, Respondent engaged the students in actual instruction for only ten minutes of the one-hour period. She also noted that Respondent was inconsistent in his meting out of discipline and was not very aware of what the students were doing (which was referred to as lacking “with-it- ness”). Dr. Beers wrote up a summary of her observation in narrative form, and included commendations as well as recommendations for improvement. From those recommendations, Ms. Harris determined that Respondent had still not made any progress toward remediating his teaching deficiencies. Ms. Harris observed Respondent’s class on October 12, 1999, and prepared a narrative summary. Respondent’s classroom performance at that time was consistent with previous observations. Ms. Harris did not note any improvement. On October 15, 1999, Ms. Harris prepared an evaluation for Respondent, rating his performance as being unsatisfactory. The unsatisfactory evaluation was based on Respondent’s failure to remediate any of the previously noted six areas of concern and his lack of effort in that regard. Ms. Harris also notified Superintendent Kowal that, although Respondent was provided 90 days of assistance, his performance deficiencies had not been corrected to a sufficient degree to warrant a satisfactory evaluation. Dr. Kowal in turn notified Respondent that she would recommend to the School Board Respondent’s dismissal effective 15 days from the November 4, 1999, School Board meeting. At the end of the 1996-97 school year, Respondent erroneously recorded that all but one student in a class had failed the final examination. The incorrect grades appeared on the final report cards for the 1996-97 school year. On September 17, 1997, a pre-disciplinary hearing was held to determine whether further action should be taken. At that pre- disciplinary hearing, it was established that the failing grades were the result of Respondent's record-keeping errors and that no further action would be taken against him after Respondent changed the erroneous grades. Respondent repeatedly failed to maintain adequate records of grades, made errors in reporting grades, and misplaced students' work. Count II alleged that Respondent refused to submit the end-of-year checklist prior to summer break for the 1998/99 school year. The evidence failed to establish that allegation. Count II also alleged that Respondent falsified a disciplinary referral by indicating on the referral record that he had spoken to the student's parent when, in fact, he had not done so. Respondent admitted that he had not spoken directly with the parent, but he testified, credibly, that he had left a message on the parent's answering machine and did not intend to mislead anyone by the referral record. Count II alleged that Respondent meted out inappropriate, unwarranted, and unequal punishment to students, and that he used grades and denial of make-up work opportunities as methods of punishment. Respondent meted out inappropriate, unwarranted, and unequal punishment to students. Petitioner did not establish that Respondent used grades and denial of make-up work opportunities as methods of punishment. As alleged in Count III, Petitioner established that Respondent was guilty of insubordination by his continuing failure to provide Ms. Harris with lesson plans and with a discipline plan. In explaining to the arbitrator who heard one of his grievances, Respondent testified that he did not do a discipline because he did not do "diddly" tasks. The remaining allegations of insubordination or willful neglect of duty set forth in Count III were not established by Petitioner. Petitioner established that each observation of Respondent's performance at issue in this proceeding was pursuant to and consistent with its established evaluation process. Each person who formally observed Respondent's classroom performance was appropriately trained and objectively reported their observations, which were factually based. Petitioner further established that each performance evaluation at issue in this proceeding was pursuant to and consistent with its established evaluation process. The various findings of unsatisfactory performance were justified by documented observations as required by the evaluation process. The 90-day district plan provided Respondent with appropriate assistance to help him correct his teaching deficiencies. Petitioner clearly established that Respondent repeatedly resisted efforts to help him. Respondent failed to remediate his deficiencies. This failure should be attributed more to a negative attitude than a lack of ability. At the March 29, 2000, School Board meeting, the Superintendent of Schools submitted a written recommendation that Respondent be dismissed from his CC teaching position with the School District at the end of the 1999-2000 school year, effective May 31, 2000. Respondent and his attorney were given an opportunity to be heard regarding the Superintendent’s recommendation. The School Board voted in favor of the Superintendent's recommendation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further RECOMMENDED that the final order terminate Respondent’s continuing contract of employment effective at the end of the 1999-2000 school year. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 18th day of May, 2001.
The Issue Whether the Miami-Dade County School Board's failure to disqualify Magnum Construction Management Corporation from bidding on Project No. A0746 pursuant to paragraph G. of the General Requirements of the Request for Qualifications issued in connection with the project was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board The School Board is a duly constituted district school board charged with the duty of operating, controlling, and supervising all free public schools in Miami-Dade County, including, among many others, Westview Middle School (Westview) and Miami Coral Park Senior High School. The Westview Project Westview is currently undergoing expansion, remodeling, and renovation work (Westview Project). The project is almost complete. Blanca Bazan is a School Board employee who serves as project manager on School Board construction projects. At all times material to the instant cases, Ms. Bazan has been the Project Manager on the Westview Project. LIVS and Associates (LIVS), an architectural and engineering firm, has been the Project Architect/Engineer (or A/E of Record) on the Westview Project since October of 1997, when it entered into a written agreement (which is still in effect) to assume such responsibility in return for a "lump sum" payment, plus additional fees (LIVS Westview Agreement). Paragraph III.G. of the LIVS Westview Agreement describes the "basic services" LIVS is to provide during the "construction phase" of the project. It provides, in pertinent part, as follows: The following are to be performed by the A/E [LIVS], and shall in all cases be in accordance with the requirement of the contract documents: OBSERVATION a.) The A/E shall provide construction administration of the Contract for Construction as set forth in this AGREEMENT and in the General Conditions of the Contract for Construction unless otherwise provided in this AGREEMENT. The A/E shall visit the site at least weekly or as appropriate to the stage of construction or as otherwise directed by the BOARD to become generally familiar with the progress and quality of the Work completed and to determine in general if the Work is being performed in a manner indicating that the Work when completed will be in accordance with the Contract Documents. As part of the A/E's basic services, the A/E shall conduct 120 on-site observation visits. A/E shall provide a report to the PM [Project Manager] . . . . On the basis of on-site observations as the A/E, the A/E shall keep the BOARD and Contractor informed immediately in writing of the progress or lack of progress and quality of the Work, and shall endeavor to guard the BOARD against defects and deficiencies in the Work. The A/E shall at all times have access to the Work, wherever it is in preparation or progress. * * * b.) . . . . A/E will enforce the faithful performance of Contract and assure that the Work has been or is being performed in accordance with the Construction Documents. . . . A/E will provide written notice to BOARD if it observes or has reason to become aware of any defect or non- conformance with the Construction Documents. CONTRACTOR'S SUBMITTALS The A/E shall review and evaluate samples, schedules, shop drawings, and other submissions for conformance with the design requirements of the Project, applicable codes and ordinances. . . . The A/E shall also prepare in a timely manner change order items, including the proper documentation for DOE transmittal. . . . * * * 4. QUALITY CONTROL The A/E shall make a reasonable effort to evaluate materials and/or workmanship for conformance with Construction Documents, evaluate quality control testing reports, advise the Construction Contractor and the BOARD immediately of any unacceptable materials and workmanship the A/E may discover and [e]nsure that the Contractor take appropriate action to remedy unacceptable conditions. * * * CERTIFICATION OF PAYMENTS The A/E shall review the Contractor's notarized requisitions for payment, the schedule of values, subcontractor partial releases and the Project schedule. The A/E shall determine the amount which in the A/E's opinion should be paid to the Contractor and shall recommend for [the] BOARD'S approval certificates for payments in such amounts. These certificates will constitute a representation to the BOARD, based on site observations by all appropriate Designated Specialists for architectural and engineering disciplines and on the data comprising the application for payment, that the Work has progressed to the point indicated. By recommending a certificate for payment consistent with the contract documents, the A/E shall also represent to the Board that, to the best of the A/E's knowledge, information and professional judgment, the quality of work is in accordance with the Construction Contract Documents, unless the BOARD has been notified to the contrary in writing. Prior to issuing certification for payment, A/E shall review the status of Contractor's Construction Documents and Project schedule and verify that the documents and/or schedules are up-to-date and accurate to the extent visual observation of construction will disclose. A/E shall also confirm that after the first application for payment, each subsequent application shall be accompanied by subcontractor partial lien release fully accounting for subcontractor payments due for the previous application. If the Construction Documents and Project Schedule are not up-to-date and/or accurate, A/E shall include in its certification for payment a statement that the Construction Documents and/or Project Schedule are not up-to-date. In such event, BOARD may, a.) hold an additional ten (10)% of amount then due Contractor until A/E verifies that the Construction Documents and/or Project Schedule are up-to-date and accurate, b.) refuse to process the partial or final requisition for payment, or c.) pay Contractor. . . . The A/E's certification is a representation by A/E to Owner that all required items noted herein are submitted and proper and serves as a recommendation for payment only. The A/E shall make every reasonable effort to process the Contractor's requisition for payment in accordance with the timelines[] established in the General Conditions of the Construction Contract. . . . * * * SUBSTANTIAL COMPLETION The A/E, upon written notification by the Contractor that the Work is substantially complete and ready for substantial completion shall promptly conduct inspection to determine the date or dates of substantial completion for the work. . . . c) Not Substantially Complete If A/E determines that the Work has not achieved Substantial Completion, A/E will notify Contractor in writing of the deficiencies within ten (10) days of the Inspection. FINAL COMPLETION AND FINAL PAYMENT Upon receipt of written notice that the Work is ready for Final Inspection and Acceptance and upon receipt of a final Requisition for Payment, or at completion of the thirty (30) day punchlist period, whichever is earliest, A/E, its engineers and other consultants, BOARD and Contractor shall participate in a walk-through to inspect the Work. At the conclusion of the inspection, the Work shall be determined to be as follows: Finally Complete If it determined that the Work has achieved Final Completion, final payment shall be made in accordance with the Contract Documents. Not Finally Complete If it is determined that the Work has not achieved Final Completion, A/E shall prepare a Final Completion Punchlist and Final Completion shall be achieved in accordance with the Contract Documents and such other consequences as allowed by contract and at law shall be employed. . . . After all Final Inspection Punchlist items have been completed, A/E will recommend to BOARD acceptance of the Project and make recommendations regarding Contractor's final payment request. . . . Paragraph X.B. of the LIVS Westview Agreement provides as follows: If for any reason, the A/E is unable to perform the services under this contract, the BOARD reserves the right to either name or approve the A/E selected to complete the performance of this AGREEMENT. The BOARD reserves the absolute right to recommend a successor A/E or terminate the services of the A/E.[3] Paragraph XII. of the LIVS Westview Agreement provides that "[t]he BOARD may terminate this AGREEMENT, with or without cause, at any time upon thirty (30) days written notice to the A/E." With LIVS' assistance, a Project Manual for the Westview Project (Westview Manual) was prepared in anticipation of the letting of the Contract for Construction of the project through a competitive bidding process. Included in the Westview Manual were the General Conditions of the Contract for Construction. Subsections 3.1.1, 3.3.1, 3.3.2, and 3.3.3 of these General Conditions read as follows: 3.1.1 Contractor is the person, firm or corporation authorized to do business in the State of Florida and properly licensed or registered for the work to be performed with whom a Contract has been made with the Board for the performance of the Work described in the Construction Documents. * * * Contractor shall supervise and direct the Work in a manner consistent with contemporary community standards. Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Construction Documents give other specific instructions concerning these matters. Contractor shall be responsible to Board for acts and omissions of Contractor's employees, Subcontractors and their agents and employees and other persons performing portions of the Work under the Contract and shall be responsible to A/E and Board for coordination and complete execution of the Work in accordance with the Construction Documents. 3.3.3. Contractor shall not be relieved of obligations to perform the Work in accordance with the Construction Documents either by activities or duties of A/E in its administration of the Contract, or by tests, inspections or approvals required or performed by persons other than Contractor. In or around 1999, the Contract for Construction of the Westview Project was awarded by the School Board to J.V. Construction Corporation (J.V.). As required by law and the terms of the Contract for Construction, J.V. executed and delivered to the School Board a payment and performance bond issued by The Hartford Fire Insurance Company (Surety). J.V. subsequently defaulted and its right to proceed under the Contract for Construction was terminated by the School Board, which called upon the Surety to fulfill the Surety's obligations under the payment and performance bond it had issued. As a result, the Surety "essentially step[ped] into the shoes of [J.V.]" under the Contract for Construction.4 The Surety thereafter contracted with MCM to act as a "completion contractor" and complete the work J.V. had begun under the Contract for Construction. The School Board was not a party to this contractual arrangement. The Completion Contract into which the Surety and MCM entered (which has been in effect since October 25, 2001) provides, in pertinent part, as follows: THIS COMPLETION CONTRACT (the "Contract") is effective the 25th day of October 2001 by and between The Hartford Fire insurance Company (the "Surety") and Magnum Construction Management Corp. (the "Completion Contractor"). RECITALS WHEREAS, J.V. Construction Corp. (the "Former Contractor") and THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA (the "Owner") entered into a contract (the "Original Contract") for the Former Contractor to furnish all labor and material and perform all work for the construction of an addition to the Westview Middle School Project No. A0670 (the "Project") in accordance with the terms and provisions of the Original Contract including all contract documents forming a part of the Original Contract; WHEREAS, as required by law and under the terms of the Original Contract, the Former Contractor and Surety made, executed and delivered to the Owner a Performance Bond, Bond No. 21 BCS AE 8081, and Payment Bond, Bond No. 21 BCS AE 8081 (collectively, the "Bonds"), each in the penal sum of $6,678,000.00; WHEREAS, the Owner has terminated Former Contractor's right to proceed under the Original Contract, and the Owner has called upon the Surety to fulfill its obligations as surety under the terms of the Performance Bond; WHEREAS, the Completion Contractor has submitted a proposal dated July 25, 2001, to the Surety to complete the Original Contract, and said proposal is incorporated herein . . . ; and WHEREAS, the Surety and the Completion Contractor desire to enter into this Contract under the terms and conditions hereinafter set forth. NOW, THEREFORE, the Surety and the Completion Contractor, for and in consideration of the mutual obligations and promises herein set forth, do contract and agree as follows: AGREEMENTS Contract Documents. The Contract to the Surety consists of the terms and provisions contained herein, including the proposal from MCM Construction to the Surety dated July 25, 2001, to complete the Original Contract . . . ; and the Original Contract, including all General, Supplementary and Special Conditions, drawings, specifications, forms, addenda and documents forming a part of the Original Contract and any modifications to the Original Contract, all of which are incorporated herein by reference and which are hereinafter referred to collectively as the "Contract Documents." The Completion Contractor hereby warrants that it has received and read all of the Contract Documents. Strict Compliance. The Completion Contractor shall be bound to the Surety by all of the terms and provisions of the Contract Documents, including administrative as well as technical provisions, and shall strictly comply therewith in all respects. Furthermore, the Completion Contractor shall be bound in the same manner and to the same extent that the Surety and the Former Contractor or either of them would be bound to the Owner under the Original Contract, including but not limited to the conditions or determinations by the Owner with respect to all work done thereunder. The Completion Contractor shall have no responsibility or liability for indebtedness incurred by the Former Contractor. * * * Work to be Performed. The Completion Contractor shall furnish and pay for all labor, materials, services and equipment and shall do everything else necessary to perform and satisfactorily complete the work of the Original Contract as required by the Contract Documents to the satisfaction of the Surety and the Owner in such manner as to fully protect and save the Surety harmless as to its liability to the Owner for the completion of the original Contract (The "Work"). Time for the Performance of the Work. . . . . Subject to allowable time extensions as provided under the terms of the Original Contract, if the Completion Contractor fails to achieve Substantial Completion as defined in the Original Contract in the time allowed by this Paragraph, the Completion Contractor is liable to the Surety for all liquidated damages assessed against the Surety for the Work under the Original Contract after 713 days from the execution of this Agreement by both parties. The Surety may withhold from the Completion Contractor payments which otherwise may be due to the Completion Contractor in an amount equal to the liquidated damages assessed by the Owner. Price. The Surety shall pay to the Completion Contractor and the Completion Contractor agrees to receive and accept Four Million, Seven Hundred Eighty Eight Thousand, Three Hundred ($4,788,300.00) Dollars (the "Price") as full compensation for the performance and completion of the Work as described in the Contract Documents. . . . * * * 9. Payment. As specified in the Original Contract, the Completion Contractor shall prepare, sign and submit to the Owner, on behalf of the Surety, a request for payment (the "Surety/Owner Requisition") showing the value of the work completed and the materials stored to date in accordance with the terms of the Original Contract. The Surety/Owner Requisition shall be based on the Original Contract price of the Former Contractor. The amount of the Surety/Owner Requisition as approved by the Owner and the Surety shall be due and payable to the Completion Contractor within seven (7) days after the Surety receives payment from the Owner. If the Owner refuses to pay the Surety for any reason related to the Completion Contractor's performance, nonperformance, or in any way related to the Completion Contractor's actions, the Surety shall have no obligation to pay the Completion Contractor until the Owner pays the Surety. In this event, the Surety shall only be obligated to pay the Completion Contractor whatever amounts are received by the Surety within seven (7) days of the Surety's receipt of payment from the Owner. In the event Owner refuses to pay Surety for any reason NOT related to the actions of the Completion Contractor, or its Subcontractors, Surety shall make payment to completion contractor, for all work in place as of the date of the payment application, within the timeframe set forth in the Original Contract for payment to the Original Contractor from the Owner. * * * B. In the same time frame as specified in the Original Contract, the Completion Contractor shall prepare and submit to the Surety a request for payment (The "Surety/Completion Contractor Requisition") based upon the amount of the Completion Contractor's price to the Surety. The Surety/Completion Contractor Requisition shall be based on the same percentages of completion (the value of the work completed and the materials stored to date (as the Surety/Owner Requisition.). The Surety shall pay the Completion Contractor for the Surety/Completion Contractor Requisition as specified in the immediately preceding paragraph. * * * Defects in Work. The Completion Contractor shall be responsible for any and all defects in the work performed or materials supplied by the Completion Contractor and/or any of the Completion Contractor's subcontractors or materialmen after the execution of this Agreement by both parties. Independent Contractor. Except as otherwise provided in this Contract and the Original Contract the Completion Contractor will be permitted to exercise the full prerogatives of a prime contractor, in prosecuting the work, including but not limited to the selection and classification of supervisors and workers, scheduling, determination of equipment and material requirements, and the establishment of work hours and work week including overtime. It is further understood and agreed that the Completion Contractor is an independent contractor in connection with all work to be performed by it pursuant to the Contract Documents. * * * The Completion Contractor as the Surety's Representative on the Project. The Surety shall be represented at the Project by the Completion Contractor. Prior to the issuance of the Notice to Proceed, the Completion Contractor shall name, and the Surety shall specifically authorize in writing an individual with the Completion Contractor to be its representative (the "Authorized Individual") solely for the purposes set forth in this paragraph. The Authorized Individual will represent the Surety in dealing with the Owner on day to day construction issues with respect to the Project. The Surety hereby designates the Authorized Individual to prepare and process pay requisitions on the Contract. However, the Surety will sign all pay requisitions submitted to the Owner. Payments from the Owner shall be made payable to the Surety and transmitted to the Surety . . . . * * * 17. Termination of Agreement. Termination for Convenience. This Contract may be terminated in whole or in part by the Surety at any time for the Surety's convenience, provided the Completion Contractor is given not less than ten (10) calendar days written notice of intent to terminate and an opportunity for consultation with the Surety prior to termination. . . . Termination for Cause. Should the Completion Contractor, at anytime, in the judgment of either the Owner or the Surety, refuse or fail to supply a sufficient number of properly skilled workmen or materials, tools, equipment, facilities, or supplies of a proper quality; or fail in any respect to prosecute the work with promptness and diligence; or interfere with or impede the work of others on the Project; or fail in the performance of any of its obligations under this Contract or under the Original Contract, and should the Completion Contractor fail within three (3) days after receipt of written notice from either the Owner or the Surety to remedy such default; . . . or disregard the instructions of the Owner or the Surety; or for any other cause whatsoever shall not carry on the work in an acceptable manner, the Surety may, in any such event, either terminate this Contract or may exclude the Completion Contractor and its employees and agents from the work without terminating this Contract. . . . Following the execution of the Completion Contract, the Surety's attorney wrote a letter, dated November 7, 2001, to Ms. Bazan, which read as follows: The Hartford is in receipt of your letter dated November 2, 2001, and has requested that we respond on its behalf. In response to your specific questions, please be advised of the following: The Hartford's authorized representative on the project is: Mr. Fernando Munilla MCM Corp. 6201 S.W. 70th Street Second Floor Miami, Florida 33143 The Hartford has also authorized Mr. Fernando Munilla to prepare and process pay requisitions on the project. However, the Hartford will sign all pay requisitions submitted to the School Board. Payments from the School Board shall be made payable to the Hartford Fire Insurance Company and transmitted to The Hartford at the following address unless and until the School Board is notified in writing of a different address: The Hartford Fire and Insurance Company Hartford Plaza-T4 Hartford, Connecticut 06115 Attention: Robert Griffith, Esq. Bond Claims Mr. Fernando Munilla shall have, on behalf of The Hartford, the authority to negotiate and sign change orders for extra work requested or required by the School Board (hereinafter "Change Order") without The Hartford's prior written approval, provided that the Change Order does not exceed $10,000.00 and that MCM requests and is given additional time to perform the Change Order. If the Change Order does exceed $10,000.00, or if MCM requests additional time but no additional time is given to MCM to perform the Change Order, then The Hartford's written approval is required to negotiate the Change Order and the final Change Order must be signed by The Hartford and not Mr. Munilla. If the total of the approved Change Orders exceeds the sum of $50,000.00, then The Hartford, and not Mr. Munilla, must approve in writing all additional or subsequent Change Orders regardless of the amount of each such Change Order. Mr. Munilla has no authority to negotiate deductive Change Orders, credits, backcharges or net deductions from the Original Contract of any nature whatsoever without The Hartford's prior written approval. Mr. Munilla has no authority to negotiate on behalf of The Hartford on any disputes between MCM and The Hartford. I trust this letter answers all of your questions. Please do not hesitate to contact me should you require any additional information or clarification. Since the effective date of the Completion Contract, LIVS, acting pursuant to the LIVS Westview Agreement as the School Board's A/E of Record on the Westview Project, has been inspecting and evaluating the work performed by MCM under the Completion Contract and verifying that work for which payment is sought (through the submission of pay requisitions by MCM on behalf of the Surety) has been completed in accordance with the requirements of the Contract for Construction. If a pay requisition is approved by LIVS, it is then sent to Ms. Bazan for her review and approval. If everything is in order, Ms. Bazan signs the pay requisition and then "run[s] it through the chain of command." When all the necessary signatures are obtained, the School Board makes payment to the Surety, which, in turn, pays MCM under the terms of the Completion Contract. MCM does not have any contract with the School Board in connection with the Westview Project. The payment it receives for the work it does on the project comes from the Surety (with which it does have a contractual relationship), not from the School Board. The School Board considers the Surety to be the Westview Project "contractor" (as evidenced by MCM Exhibit 19, which is an excerpt of an October 30, 2002, printout listing School Board construction projects).5 In the Statement of Contractor's Qualification that MCM submitted to the School Board in 2002 to obtain its Certificate of Contractor Prequalification for "General Contractor [W]ork" (which certificate was effective July 10, 2002, until July 10, 2003, and authorized MCM "to have under contract with the [School] [B]oard at any one time a total dollar value of work in the amount of $100,000,000.000 and maximum dollar value of each individual project in the amount of $40,000,000.00"), MCM stated, among other things, the following under "Contracts in Progress": PROJECT NAME: WESTVIEW MIDDLE SCHOOL- REMODELING & RENOVATION OWNER: Miami-Dade County Public Schools, Blanca Bazan (305)995-4538 ARCHITECT: LIVS and Associates CONSTRUCTION COST: $4,788,300 START/COMPLETION: 10/01 to 10/03 DESCRIPTION OF PROJECT: Addition, renovation and remodeling of an existing middle school with very stringent phasing requirements and time frames. The project consists of three phases. The first phase is a new building with classrooms and a media center, as well as a new parking lot. The second phase consists of the renovation and remodeling of a one-story building with a courtyard, classrooms, locker rooms, band room, and shop class. The third phase is a two-story building with a parking lot, classrooms, auditorium and an immediate phasing that consists of remodeling a cafetorium during summer break. The remodeling and renovation includes: asbestos abatement, architectural, electrical and mechanical demolition. The Instant Project In or about July of 2002, the School Board issued a Request for Qualifications for Design-Build Firms for "State School 'MMM' 1600 Student Station Addition at: Miami Coral Park Senior High School (Project No. A-0746)" (RFQ). In a design-build project like the Instant Project (in contrast to the "traditional bid contract scenario"), the School Board enters into a single contract (with a design-build firm) for both the design and construction components of the project.6 In the Legal Advertisement that was part of the RFQ, the School Board announced that it "intend[ed] to pre-qualify three (3) to six (6) design-build firms to subsequently invite them to bid" on the Instant Project and further stated, in pertinent part, the following: Firms and companies desiring to participate in the design-build pre-qualification process shall submit an original qualification proposal and eight copies . . . . * * * If the applicant is a joint venture, an executed copy of the joint venture agreement must be submitted with the application. Percentages of participation of fees must be clearly stated for each joint venture partner. Only one submittal will be accepted per applicant, either as a single prime or as part of a joint venture. Firms or companies desiring to participate in this contract must have been pre- qualified by the Board, in accordance with Board rule for Pre-Qualification of Contractors for Educational Facilities Construction, prior to submitting their proposal for this advertisement. . . . The General Requirements portion of the RFQ provided, in pertinent part, as follows: In order to be considered, proposers must meet the following basic requirements: * * * A pre-proposal conference will be held . . . . Attendance is highly encouraged. This will be the only opportunity to present questions regarding the proposal. Written questions may be forwarded to Mr. Ivan M. Rodriguez, R. A., . . . and said questions will be answered at the pre-proposal conference. Questions and answers will be distributed to attendees. Proposers must be authorized to do business in the State of Florida and must possess all required registration, certification and licenses (including design and construction) in accordance with all applicable Florida Statues, ordinances, regulations, and/or Board Rules. A joint venture, including a joint venture composed of qualified business organizations, is itself a separate and distinct organization that must be qualified in accordance with Board Rules and Florida Statute 489.119(2)(c). Proposers must have been in business for a period of no less than five years. In the event of a joint venture or a newly formed company, at least one of the entities of the joint venture or principal of the newly formed company must have been in business for a period of no less than five years. Any proposer, firm or company desiring to participate in this process must not have as a part of its team an A/E firm presently under contract with the Board for a specific project and a General contractor for the same project. The Board considers this a conflict of interest and such proposals will not be considered for award of a contract under this Request for Qualifications. * * * M. MDCPS reserves the right to reject any proposal, to waive technicalities, or to accept the proposal that, in its sole judgment, best serves the interest of Miami-Dade County Public Schools. * * * Failure to file a protest within the time prescribed in §120.57(3), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Any questions concerning this RFQ should be directed to the Department of A/E Selection, Negotiations & Design Management; attention, Mr. Ivan M Rodriguez, R. A. Director at . . . . The Pre-Qualification Process portion of the RFQ provided, in pertinent part, as follows: Intent: To pre-qualify between three (3) to six (6) design-build firms to subsequently invite them to bid on the following project: State School "MMM" 1600 Student Station Addition @ Miami Coral Park Senior High School (Preliminary estimated Construction Cost- $17,473,890) 8865 S.W. 16th Street, Miami, Florida 33165 Project No.: A0746 The selected proposer will be placed on a list of qualified bidders for bidding on design-build services for the above project. * * * C. Pricing The selected proposers will be allowed to bid the above listed project[], under a competitive bid process, based on design criteria established by a Design Criteria Professional under contract by MDCPS. The Evaluation/Scoring Process portion of the RFQ provided, in pertinent part, as follows: All proposers will be evaluated based on information presented in their submittals, utilizing the Board approved "Procedure[] for [] Selection of Design-Build Firms" dated January 5, 1994 (Updated March 10, 1999) . . . . The "Procedure[] for [] Selection of Design-Build Firms" referenced in this portion of the RFQ provided, in pertinent part, as follows: I. SELECTION PROCESS: INTENT To select Design-Build firms for bidding on each DCPS Design-Build project identified. Selected proposers will be placed on a list of qualified bidders for bidding on each DCPS Design-Build project as advertised. SCHEDULE: Dates for the items listed below shall be projected and become part of future Request for Proposals (RFP) advertisement. Board Review Mailing Advertisement Proposal Submittal Deadline Evaluation Interviews Bid on Design-Build Projects Award of Design-Build Project * * * PRICING: Selected proposers will be allowed to bid each Design-Build project identified under a competitive bid process. * * * EVALUATION/SCORING PROCESS: All proposers will be evaluated based on information presented in their submittals . . . . SCORING The evaluation/scoring process will be conducted in two steps. First, staff shall evaluate all factors in the Initial Screening section of Form-1 . . . . Second, the Selection Committee shall evaluate all factors contained in the Interview section of Form-1 . . . . The evaluation/scoring process shall be as follows: INITIAL SCREENING All proposers will undergo an initial screening process conducted by staff where they will be evaluating the proposer[]s' qualifications. The proposers will be evaluated by staff utilizing Form-1 . . . ; maximum score in this category is 115 points. Proposers that do not comply with the RFP will not be accepted and shall be duly notified. INTERVIEWS All proposers that comply with the RFP shall be contacted to schedule interviews by the Selection Committee. The Proposers will be evaluated by each of the members of the Selection Committee utilizing Form-1 . . . . The maximum score in this category is 115 points. RANKING Both the initial screening score and the interview score will be added, and the sum of both scores will determine the ranking of all proposers. The highest and lowest of the seven (7) total scores for each proposer will be dropped, and an average taken of the remaining five (5), to determine total score and ranking. Three (3) or more firms will be selected as eligible to bid on the project advertised. The Board shall have the right to make exceptions to this procedure when valid public emergency conditions warrant. INSTRUCTIONS FOR USE OF DADE COUNTY PUBLIC SCHOOLS DESIGN-BUILD SERVICES SELECTION-FORM 1 * * * INITIAL SCREENING (115 POINTS TOTAL) From the proposer's response to the RFP, staff will objectively evaluate the firm's abilities in accordance with those criteria listed below (Scores for each applicant will be based on comparison with all other applicants): * * * C. ARCHITECTURAL ENGINEERING DESIGN (30 POINTS): Submit General Services Administration Standard forms 254 (one for each discipline) and 255 (one for entire team), which best describes the proposed architectural/engineering design team. . . . * * * INTERVIEWS After the proposers have been evaluated based on their written applications, they will be invited to make a presentation to the Selection Committee on their approach to perform Design-Build projects for DCPS. . . . * * * The Submittal Requirements portion of the RFQ provided, in pertinent part, as follows: Note: Please refer to Pages 4-9 of the "Procedure[] for [] Selection of Design- Build Firms" attached hereto as Exhibit "C" of this RFQ, for additional information on the following items: * * * E. Architectural/Engineering design- Submit Forms 254 and 255 for A/E team members only. Identify the architect's experience in design-build, the A/E team's experience with DOE codes, MDCPS design criteria/standards, master specifications, educational specifications and furniture, fixtures and equipment. Describe the A/E team's design coordination and quality control systems. * * * P. State of Florida licenses (design and construction)- Provide current copy of State of Florida registration and licenses for proposer and all its professional consultants. * * * R. Contractors Pre-qualification Certificate- Provide current copy of MDCPS Contractor Pre-qualification Certificate. Proposers must have a valid certificate with a minimum of $17,473,890 single project capacity, in order to be considered. * * * The pre-proposal conference referenced in the RFQ was held on July 25, 2002. Attendees were given a written document which contained, among other things, the following questions (that had been submitted in advance of the conference) and answers (that had been given to these questions by "staff"): QUESTION Can an A/E firm presently under contract with the Board for a specific school project, join with the general contractor for the same school project and present a proposal. ANSWER No! The Board views this as a conflict of interest and will not consider such entities. QUESTION Can one firm submit two different proposals, one as a single prime firm and the other as part of a joint venture? ANSWER No! The legal advertisement is very specific to this issue and will only allow one submittal per applicant, either as a single prime firm or as part of a joint venture. QUESTION Can A/E firms presently under contract with the Board as term consultants participate in a design-build entity submitting a proposal? ANSWER Yes! Staff does not see any conflict with this situation. The Board, at their meeting of April 1994, has ruled that neither a direct nor an implied conflict exists. Question: Will there be a design evaluation at the time of bidding in determining the successful bidder? ANSWER No! The successful bidder will be determined based on the bid process. All bidders are to comply with the design criteria bidding documents. However, during the selection process, we will be evaluating the design approach to this project. Question: The RFP [sic] requires the applicant to be authorized to do business in the State of Florida as a design-build entity; however, when we called the State there is none available. What do we do? ANSWER You must comply with all State requirements including required registration and licenses (Design & Construction) in accordance with Florida law. It is your responsibility to comply. MCM was among those that submitted a qualification proposal in response to the RFQ (MCM's Qualification Proposal). MCM's Qualification Proposal was accompanied by a cover letter, dated August 1, 2002, from its President, Jorge Munilla, which read, in pertinent part, as follows: MCM is pleased to submit our qualifications to provide Miami Dade County Public Schools with Design-Build Service for State School MMM * * * MCM has substantial experience with the Design-Build process as it relates to constructing educational facilities. We have assembled a team of professionals that will deliver the quality and cost efficiency required by Miami Dade County Public Schools. The team includes: PJB Associates, who[] will provide architectural services; Bliss & Ny[i]tray, [who] will supply structural engineering requirements; Fortin, Leavy, Skiles, Inc., [who] will provide civil engineering services; LIVS [and] Associates,[7] [who] is providing mechanical, electrical, plumbing and fire protection consulting expertise; and the talented firm of Rosenberg Design Group, [who] will provide Landscape Architecture design. It is significant that our team members have all participated in Design- Build projects for Miami Dade County Public Schools and therefore are acquainted with the unique relationship which it necessitates. The MCM Design-Build team will deliver the cost effective construction, timely delivery, and quality design goals that are required by Miami-Dade County Public Schools. The information that follows this letter details precisely how the MCM team will satisfy these project objectives. * * * MCM's Qualification Proposal contained a Proposer's Profile, which provided, in pertinent part, as follows: TOTAL NUMBER OF YEARS IN BUSINESS MCM Corp. is confident that our team, if selected for this project, will execute the contract and deliver functionally effective facilities in concert with M-DCPS staff. The project team and our organization are structured in such a manner as to provide clear-cut lines of communication and accountability. . . . MCM Corp. has learned that a critical factor in the achievement of project goals is the selection of a project team that has the technical knowledge and experience to deliver. The following lists the principal occupation of each member of the design- build team, their occupational license number, and the number of years they have been engaged in that practice. Team Members License Years in Business MCM Corp. General Contractors CG C023834[8] 19 PJB Associates, P.A. Architects AA 0003085[9] 5 Fortin, Leavy, Skiles, Inc. Civil Engineering 3653 19 Bliss & Nyitray, Inc. Structural Engineering 674 39 LIVS Associates MEP EB 0004134[10] 17 Rosenberg Design Group Landscape LA 0000143 31 Also included in MCM's Qualification Proposal were Standard Forms (SFs) 254 (Architect and Related Services Questionnaires) for PJB Associates, P.A. (PJB); Fortin, Leavy, Skiles, Inc. (Fortin); Bliss & Nyitray, Inc. (Bliss); LIVS; and Rosenberg Design Group (Rosenberg); and an SF 255 (Architect and Related Services Questionnaire for Specific Project) completed by PJB as MCM's proposed Project Architect (or A/E of Record). Under the arrangements that had been made, if MCM were the successful bidder on the Instant Project, it would enter into an agreement for design services with PJB and PJB, in turn, would retain the services of Fortin, Bliss, LIVS, and Rosenberg (as sub-subcontractors/sub-subconsultants on the project, having no direct contractual relationship with MCM) to assist it in fulfilling its contractual obligations to MCM. The SF 254 for LIVS was filled out by Hector Vergara, the partner that is "in charge of all [the firm's] mechanical work, and it lists the Westview Project as an "example" of the projects the firm has done in the "[l]ast 5 [y]ears." According the form, the "[c]ost of [LIVS'] [w]ork" on the Westview Project was $6,800,000.00 and the "[c]ompletion [d]ate (. . . [e]stimated)" of such work was "2003." The SF 255 reflected that Fortin, Bliss, LIVS, and Rosenberg would be "consultants" to PJB on the Instant Project in the "[s]pecialit[ies] of "[c]ivil [e]ngineering," "[s]tructural engineering," "[m]echanical/[e]lectrical/ [p]lumbing/[f]ire [p]rotection," and [l]andscape [a]rchitect[ure]," respectively, and it contained "brief resumes" of "key persons" from these entities who would be working on the project. Among these "brief resumes" were those of Mr. Vergara and Arnold Leon of LIVS, which indicated that they both had done work on the Westview Project. Among the other documents that were part of MCM's Qualification Proposal were the "job descriptions" and "resumes" of MCM personnel who would be assigned to the Instant Project, including Fernando Munilla (a principal of MCM), Alexis Leal (MCM's Vice President of Purchasing), and Riccardo Salani (an Estimator-Scheduler with MCM). Fernando Munilla's, Mr. Leal's, and Mr. Salani's resumes each listed the Westview Project as one of the projects on which they had worked. This was not the first design-build project solicitation of the School Board's to which MCM had responded. It had, "several months before," submitted a qualification proposal in response to the School Board's Request for Qualifications for Design-Build Firms for State School "FF,"11 which contained the same General Requirements, including paragraph G., as the RFQ in the instant cases. As in the instant cases, PJB was MCM's proposed Project Architect (or A/E of Record) on the State School "FF" project. TLC Engineering (TLC) was the original proposed MEP (mechanical/electrical/ plumbing) sub-subcontractor/sub-subconsultant. After MCM had submitted its qualification proposal, however, MCM and PJB wanted to replace TLC with LIVS as the proposed MEP sub- subcontractor/sub-subconsultant. When School Board staff (Ms. Bazan, Carlos Hevia of Capital Construction, and Ivan Rodriguez of the Department of A/E Selection, Negotiations and Design Management) were asked whether such a substitution could be made, they indicated that it would be "no problem."12 MCM therefore assumed, when it submitted its Qualification Proposal in the instant cases, that its proposing LIVS as an MEP sub- subcontractor/sub-subconsultant would not result in MCM's disqualification from further consideration pursuant to paragraph G. of the General Requirements of the RFQ, notwithstanding that LIVS was the School Board's A/E of Record on the Westview Project and MCM was the "completion contractor" on that same project (the identical roles LIVS and MCM had had at the time MCM was competing for the State School "FF" design- build contract). Following the review and evaluation of the qualification proposals that had been submitted in response to the RFQ in the instant cases, the School Board posted an "official interview schedule," on which the competing "design- build firms'" "initial screening scores" were announced. These scores were as follows: 105.50 for SBR; 103.50 for James Pirtle Construction Company (Pirtle); 98.00 for Betancourt Castellon Associates, Inc. (Betancourt); 93.00 for MCM; and 77.50 for the Beck Group (Beck). This "official interview schedule" also contained the following "notes": NOTE 1: Each firm must bring all equipment necessary to conduct its presentation. NOTE 2: The initial scores shall be cumulative to the interview scores. The final ranking for each firm shall consist of the initial score plus the interview score. NOTE 3: The following firm has withdrawn from the interviews: The Haskell Company Prior the first scheduled interview, Beck withdrew its proposal, leaving only four proposers to compete for award of the contract for the Instant Project. The determination was thereafter made to "pre-qualify" for bidding all of the remaining proposers without conducting the scheduled interviews. The evidentiary record does not reveal that anyone protested this "pre-qualif[ication]" decision; however, neither does it reflect that the School Board gave notice of the opportunity any adversely affected persons13 had to file such a protest and of the consequences of their not taking advantage of such opportunity. Following this "pre-qualif[ication]" decision, the proposers were provided copies of the Criteria Documents (or design criteria package) that had been prepared for the Instant Project. Volume I of the Criteria Documents contained, among other things, an Instructions to Bidders, a List of Subcontractors Form, Special Provisions for Compliance with M/WBE, General Conditions of the Design-Build Contract, and General Requirements. The Instructions to Bidders provided, in pertinent part, as follows: INSTRUCTIONS TO BIDDERS * * * The Instructions to Bidders, General Conditions of the Design-Build Contract, Special Conditions for Design-Build Projects and all other documents and sections, listed in the Specifications under the Bidding Requirements, apply equally to each Section and Division of the Specifications. All sections of the Criteria Documents are complementary and are part of the contractual requirements. 2.7.1 Board reserves the right to waive informalities and irregularities in a proposal, to reject any bid that shows omissions, alterations or additions not called for in the Criteria Documents and to reject any bid containing conditions or unauthorized alternate bids. * * * 2.8.1 A bid may not be modified, withdrawn or canceled by the bidder during the stipulated time period following the time and date designated for the receipt of bids and the bidder so agrees in submitting the bid. * * * 3.2.2 When notified by Criteria Professional, prior to or after Award of Contract by Board, the successful bidder shall meet with representatives of Board at MDCPS/DCP/DB "Kick Off" meeting. At that time, the successful bidder shall bring the Design Build Team whose work is highly crucial to the completion of the Work. . . . The List of Subcontractors Form contained the following directions: This list of subcontractors shall be submitted to the Section of Contract Management, 155, N.E. 15th Street, Miami, Florida, 33132, no later than the end of the second working day after award, i.e., for bids awarded on Wednesday, list shall be submitted by 4:30 p.m. on Friday. If the list of subcontractors is not submitted as requested, the Board may initiate action which will result in rescinding the award. Subcontractor as used herein shall be defined in Florida Statute 713.01(16)- Subcontractor means a person other than a material supplier or laborer who enters into a contract with the contractor for the performance of any part of such contractor's contract. For each subcontract listed below, the bidder shall name the subcontractor or list the bidder's firm if he/she proposes to do the work. The cost of work as quoted by the subcontractor shall be listed. If the name of a subcontractor is deleted or added, the owner shall be notified immediately along with the justification for the change. The Special Provisions for Compliance with M/WBE provides, in pertinent part, as follows: Subcontractor/Subconsultant- A person other than material person or laborer who enters into a contract with a contractor for the performance of any part of such Design Builder's contract. Design or other required consultant services contracted for, in the performance of this contract will be considered as a Subcontractor. . . . The General Conditions of the Design-Build Contract provided, in pertinent part, as follows: General Conditions of the Design Build Contract * * * 1.1.2 The Contract The Contract represents the entire integrated agreement between the parties hereto and supercedes prior negotiations, representations or agreements, either oral or written. The Contract may be amended or modified only by a Modification. The contract shall not be construed to create a contractual relationship of any kind (1) between the Board and a Subcontractor or Sub-subcontractor, or (2) between any persons or entities other than the Board and the Design-Build Contractor. The Contract Documents include the Criteria Documents and the approved Construction Documents. * * * 3.1.1 The "Design-Build Contractor" is the person, firm or corporation authorized to do business in the State of Florida and properly licensed or registered for the work to be performed with whom the Contract has been made with the Board for the performance of the Work described in the Criteria Documents. "Contractor" refers to a third party Contractor. * * * 3.3.2 The Design-Build Contractor shall be responsible to the Board for acts and omissions of the Design-Build Contractor's employees, Subcontractors and their agents and employees and other persons performing portions of the Work under the Contract and shall be responsible to the Board for coordination and complete execution of the Work in accordance with the Contract. * * * 3.3.6 The Design-Build Contractor shall enforce strict discipline and good order among its employees and other persons carrying out the Contract including its Subcontractors and Sub-subcontractors. . . . * * * 3.9.2 During the Construction Phase, the Design-Build Contractor shall employ a competent, full time, on-site Superintendent, the Design-Build Contractor's A/E of Record Representative, who participated at least fifty percent (50%) of his/her time during the Design Phase, and shall be on site at a minimum of 50% of the working hours of each week. An M/E/P coordinator and necessary assistants shall be in attendance at the job site during the performance of the Work. . . . The Design-Build Contractor's A/E of Record on-site Representative shall not be used for checking shop drawings. The Superintendent, the Design-Build Contractor's A/E of Record Representative, M/E/P Coordinator and the major Subcontractor's Superintendents shall be fluent in English. * * * 3.12.1 Shop drawing are drawings, diagrams, schedules and other data specifically prepared for the Work by the Design-Build Contractor or a Subcontractor, Sub- Subcontractor, . . . to illustrate some portion of the Work. The Design-Build- Contractor, Subcontractor, Sub- Subcontractor, . . . shall not use the Design-Build Contractor's A/E of Record contract drawings as shop drawings, but the Design-Build Contractor shall require these entities to produce and submit such documents independently. * * * 3.18.1 The Design-Builder shall negotiate a fair and equitable agreement with each of the Architect/Engineer consultants listed in the Design-Builder's response to the request for qualifications for this project. The Design-Builder may choose additional A/E consultants, for which prior written notice to Board shall be given, but shall not terminate or replace those A/E consultants originally designated without the prior written approval of the Board. When requesting termination or replacement of A/E consultants, the Design-Builder must submit the following items: Letter requesting written Board approval of the action, stating clearly the reason for such request and the proposed replacement A/E consultant(s). Signed and sealed or notarized release from the A/E consultant(s) being replaced or justification acceptable to the Board that such release is not obtainable. Federal Standard Form 255 and 254 of the proposed A/E consultant(s). Site specific professional liability insurance incorporating the proposed A/E consultant(s) in the policy. A hold harmless clause signed and notarized . . . . * * * 4.1.1 The Board's Representative (also referred to as the "Design Criteria Professional" or "DCP") will provide administration of the Contract as described in the Criteria Documents . . . * * * 4.2.6 The DCP will review and approve or take other appropriate action upon Design- Build Contractor's submittals, previously approved by the Design-Build Contractor's A/E of Record such as Shop Drawings, Product Data and Samples, for conformance with the information given and the design concept expressed in the Criteria Documents. . . . * * * 4.2.12 The Design-Build Contractor and Design-Build Contractor's A/E of Record shall provide DCP which will confirm completeness and correctness of same and forward to Board for Board's review and records, the written documents required by the Contract to be provided such as Warranties, Operation and Maintenance Manuals, as-built drawings, releases of claim and other documents required of the Contract. The DCP will process any pending Change Order requests and evaluate the assessment of liquidated damages, if any. Upon its determination that the Design-Build Contractor and Contractor[']s A/E of Record has fulfilled the requirements of the Contract, the DCP will issue a final Certificate for Payment. * * * A Subcontractor is a person or entity other than a materialman or laborer who enters into a subcontract with the Design- Build Contractor for the performance of any part of the Design-Build Contractor[']s Work. The term "Subcontractor" is referred to throughout the Contract as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor (sometimes referred to as a "third party contractor" ) or subcontractors of a separate (third party) contractor. A Sub-subcontractor is a person or entity other than a materialman or laborer who enters in to a sub-subcontract with a subcontractor for the performance of any part of such subcontractor's contract. The term "Sub-Subcontractor" is referred to throughout the Contract as if singular in number and means a Sub-subcontractor or any authorized representative of the Sub- subcontractor. The term "Sub-subcontractor" does not include separate subcontractors of a third party contractor. All Subcontractor's shall be licensed and/or certified as required by the Florida Building Code and state statutes. Separate permits may be required including but not limited to electrical, plumbing, mechanical, and roofing work. * * * As stated in the Instructions to Bidders, the Design-Build Contractor shall furnish in its proposal to Board the list of Subcontractors, Sub-subcontractors and materialmen (including those who are to furnish materials or equipment fabricated to a special design) proposed for each principal portion of the Work . . . . If Board has a reasonable objection to any proposed Subcontractor, Sub- subcontractor or materialman, Board will promptly notify Design-Build Contractor. The Design-Build Contractor shall not contract with any proposed Subcontractor, Sub-subcontractor or materialman to whom Board has made a reasonable objection pursuant to Subparagraph 5.2.2. If Board has a reasonable objection to a Subcontractor, Sub-subcontractor or materialman, the Design-Build Contractor shall propose another to whom the Board has no reasonable objection. A Subcontractor, Sub-subcontractor or materialman may be added to the list of Subcontractors, Sub-subcontractor[s] or materialmen if required for performance of Change Order Work. A listed Subcontractor, Sub-subcontractor or materialman may be changed only upon written approval of the Board. The request to change shall state reasons for the request and shall be accompanied by a signed and notarized release from the listed Subcontractor or Contractor's Affidavit to Board that such a release is not obtainable. * * * The General Requirements include Procedural Requirements, Subsections 2.03 and 9.01 of which provide as follows: 2.03 DESIGN-BUILDER ("D-B") D-B shall appoint its D-B Project Manager which is D-B's representative for the Project. The collective management of D-B services, including D-B'[s] architect, engineers and other consultants, is to be vested in D-B Project Manager. D-B Project Manager is the representative of D-B and all communications are to be through him/her to DCP and M-DCPS Project Manager. D-B Project Manager's role does not preclude the involvement of D-B's architect, engineers and other consultants. The architects, engineers and other consultants with responsibility for different aspects of the Project are to attend appropriate meetings but this must be coordinated with D-B Project manager. 9.01 PRE-CONSTRUCTION CONFERENCE Prior to beginning construction, DCP (through PM) shall schedule a Pre- Construction Conference. Ten (10) days notice is required for the meeting. At minimum, the following parties shall attend: DCP Team (DCP) Design-Builder Team (D-B) PM Major Subcontractors Region Superintendent Principal BCC Representatives Testing Lab Consultant HVAC Test & Balance Consultant H. Others as applicable. * * * Section 01012 of the General Requirements discusses the Project Architect. It provides as follows: PROJECT ARCHITECT (Also referred as Architect/Engineer of Record or D-B'[s] A/E. The Project Architect (A/E of Record) is a Principal, Partner, Agent, Subcontractor or Employee of the Design-Builder,[14] and is the person lawfully licensed to practice Architecture and Engineering or an entity lawfully practicing Architecture and Engineering identified as such in the Contract; and is referred to throughout the Criteria Documents as is singular in number. The term Architect/Engineer of Record means the Architect/Engineer of Record or its authorized representative. Whenever the terms Design-Builder's A/E or A/E is used throughout the Criteria Documents, it refers to the Project Architect. DUTIES AND RESPONSIBILITIES OF THE PROJECT ARCHITECT The Project Architect shall have all the duties and responsibilities established under the applicable State Statutes regulating the professions of Architects and Engineers. The Project Architect shall employ a Project Manager and necessary assistants, and shall be responsible for managing all design and production of Design and Construction Documents and the coordination of its implementation during the construction. The Project Architect shall review and approve or take other appropriate action upon Subcontractor submittals, such as Shop Drawings, Product Data and Samples prior to their submittal to the DCP for approval. The Project Architect shall consult with the DCP concerning all items related to the design and production of the Construction Documents. The Project Architect shall be responsible for the preparation of the Record Drawings. Prior to Design-Builder's request for determination by DCP of substantial completion, the Project Architect shall determine, on his/her own, that the Project has achieved substantial completion. The Project Architect shall inspect the work and provide, through the Design-Builder, a punchlist of all items to be completed or corrected. Upon receipt of request for determination of substantial completion from the Design-Builder, the DCP shall proceed to determine if the work is ready for inspection as provided under the General Conditions. All four remaining proposers, MCM, SBR, Pirtle, and Betancourt, submitted sealed bids. The bids were opened on December 17, 2002, and subsequently tabulated. MCM had the lowest "base bid" ($17,673,600.00). SBR had the second lowest "base bid" ($18,037,446.00). Betancourt's and Pirtle's "base bids" were $18,269,000.00 and $19,540,000.00, respectively. Following the tabulation of bids, School Board staff recommended to the members of the School Board that the contract for the Instant Project be awarded to MCM as the lowest bidder. On February 6, 2003, SBR, through counsel, filed a notice of protest with the School Board, which read as follows: This firm represents SBR Joint Venture, who as you know, has submitted a proposal for construction of the above-referenced [p]roject [the Instant Project]. It has come to our attention that MCM Corp. ("MCM") who submitted a proposal to provide design build services for the above- referenced project, must be disqualified from further consideration in connection with an award of the Project due to MCM's failure to comply with general requirements as promulgated by the Miami-Dade County Public Schools relative to the Project. Specifically, item I G of the General Requirements mandates that: " Any proposer, firm or company desiring to participate in this process must not have as a part of its team an A/E firm presently under contract with the Board for a specific project and a General [c]ontractor for the same project." As disclosed by MCM in its proposal to construct the [p]roject, MCM is currently performing substantial work connection with another project known as the Westview Middle School-remodeling and renovation ("Westview"). The architect under contract with the School Board regarding the Westview Project is LIVS and Associates. In conflict with the qualification general requirements, MCM's proposal to construct school MMM contemplates the formation of a design build team which will include LIVS and Associates, as its mechanical, electrical, plumbing and fire protection consulting engineers. As such, the proposal by MCM is violative of the requirements of design/build firms in order to qualify for the Project. Back-up documentation including, but not limited to, material portions of the request for qualifications and disclosures by MCM are attached for your review. Under the circumstances, we respectfully request that MCM be disqualified from performing any services in connection with [p]roject and the second [lowest] bidder, which is SBR Joint Venture, be awarded the Project. MCM responded to SBR's notice of protest by letter dated February 10, 2003, in which it argued that SBR's protest was without merit and "should be dismissed" and further stated, among other things, the following: The Contract documents permit[] the board to waive all irregularities. If the board were to consider that Ivan Rodriguez, Carlos Hevia and Blanca Bazan[15] misspoke on behalf of MDCPS when they approved LIVS as part of the MCM Design Build team, and or if the board were to consider the inclusion of LIVS as part of the Design Build Team as a conflict, then if that be the case, by this letter MCM hesitantly tenders substitution of LIVS (who has graciously agreed), with SDM Consulting Engineers, Inc., who is also fully qualified, has had extensive experience with DCPS and has agreed to take on the challenge. The members of the School Board were scheduled to vote at their February 12, 2003, meeting on staff's recommendation to award the contract for the Instant Project to MCM, but the "item [was] tabled" because of the pendency of SBR's protest. At the meeting, the School Board Attorney told the School Board members that he had "reviewed [SBR's] protest with staff and [they had] come to the conclusion that [they did not] agree with [SBR's] position," explaining, in part, as follows: The language [of paragraph G. of the General Requirements of the RFQ] is interpreted that if you have the A/E and the general contractor, who are under contract with the board on the same project, that is considered a conflict. In this particular instance, you have a third element here. One, is that the bonding company took over this project and the bonding company brought MCM in as a subcontractor, if you will, a completing contractor here in this particular instance. So, it was never the intent of this language to cover a situation other than one where you had both the A/E and the general contractor under contract with the board. Construing the language of paragraph G. of the General Requirements of the RFQ (which is not clear and unambiguous on its face) as not "cover[ing] [the] situation" present in the instant cases is not at all unreasonable. Because it has a contract with the Surety and not the School Board, MCM is not the Westview Project's "General contractor"16 as that term is typically used in the construction industry.17 Since there is no language manifest in the proposal/bid solicitation documents in evidence which compels the conclusion that, for purposes of the solicitation, this accepted industry meaning of the term was not intended, it is entirely appropriate to rely on this meaning and find, as did School Board staff, that MCM's role in the Westview Project does not disqualify its proposal from consideration under paragraph of the General Requirements of the RFQ.18 Moreover, even if it could not be reasonably disputed that MCM was the Westview Project's "General contractor" within the meaning of paragraph G. of the General Requirements of the RFQ (which, as noted above, is not the case), MCM's proposed use of LIVS on the Instant Project would still not, under every reasonable interpretation of the paragraph, create a "conflict of interest" of the type the paragraph prohibits. It is not beyond reason, particularly when the provisions of the Criteria Documents are considered19 (most significantly, Subsection 3.18.1 of the General Conditions and Section 01012 of the General Requirements), to conclude that an "A/E firm" on the design- build "team," within the meaning of paragraph G., does not refer to an entity, like LIVS, that is neither the design-builder seeking the contract for the Instant Project, a member of such a design-builder (where it is joint venture or partnership), the design-builder's proposed "Project Architect" as described in Section 01012 of the Criteria Documents' General Requirements (who is also referred to therein as the "Architect/Engineer of Record" or "A/E"), nor any other Architect/Engineer consultant with whom the design-builder intends to contract in accordance with the requirements of Subsection 3.18.1 of the Criteria Documents' General Conditions, but rather is merely a proposed MEP sub-subcontractor/sub-subconsultant (that is, a third-tier contractor). The evident purpose of paragraph G. of the General Requirements of the RFQ is to avoid a situation where a firm acting as the School Board's A/E of Record on another School Board project let under the "traditional bid contract scenario" is inclined to deal with the "General contractor" on that project in a lax manner compromising the School Board interests because of a relationship the firm has with that "General contractor" on the Instant Project.20 The chance of this happening if the firm were merely a third or lower tier contractor on the Instant Project would be remote, so remote that it is reasonable to believe (as John Pennington, the School Board's Director for Construction Compliance, who was "intimately involved in making [the language in paragraph G.] the final language," credibly testified) that it was not the School Board's intent, in including paragraph G. in the General Requirements of the RFQ, to eliminate a potential competitor based on this possibility.21 Had the School Board intended otherwise, it could have made its intent clear and unmistakable by having the first sentence of paragraph G. read as follows: "Any proposer, firm or company desiring to participate in this process must not propose to have working on the instant project in any capacity, including as a third or lower tier contractor, both a firm that is presently serving under a contract with the Board as the Board's A/E of Record on another project and a firm that is a General contractor for that same project." It did not do so, however. Instead, it used language in paragraph G. reasonably susceptible to the interpretation that, under this provision, proposing to use as an MEP sub-subcontractor/sub- subconsultant on the Instant Project a firm that is the School Board's A/E of Record on another project does not disqualify a proposer even if the proposer is the "General contractor" for that other project. Following the School Board meeting, SBR, on February 16, 2003, filed its formal written protest of the intended decision to award the contract for the Instant Project to MCM. On February 18, 2003, Fernando Munilla sent a letter to School Board member Dr. Marta Perez, which read, in pertinent part, as follows: MCM has been informed that unfortunately MCM's response to SBR's bid protest was not provided to you prior to the February 12, 2003, Board meeting. We enclose same for your ready reference. We respectfully request you inquire on the particulars raised in our letter, and if you agree with your staff's recommendation (that SBR's alleged irregularity in MCM's bid lacks [sic] merit), then we ask you move the Board to exercise its right to waive the alleged irregularity, as permitted by the bid documents under section 00100 page 4 subsection 2.7.1 in order that MCM continue to work on the project. On March 4, 2003, the School Board Attorney sent a memorandum to the Superintendent of Schools advising that upon further review of the matter he had changed his opinion and was now of the view that SBR's protest had merit, explaining in the memorandum as follows: This specification [paragraph G. of the General Requirements of the RFQ] prohibits a proposer from having as a part of its Design-Build team an Architect/Engineer (A/E) firm who is under contract with the Board for a specific project and General Contractor for the same project. The specification provides that the Board considers this a conflict of interest and such proposals would not be considered for award of the contract. MCM submitted a proposal which has LIVS [and] Associates, an A/E firm under contract for the Westview Middle School project as part of its team. MCM is the General Contractor on the Westview Middle School project under a contract with the surety company to complete the project as the completing contractor. MCM contends that in view of the fact that they are the completing contractor and are not in direct contract with the Board for the project, this particular provision should not apply. We disagree. The particular specification in question does not specify or require that the general contractor for the same project be under contract with the Board. Conflict exists by virtue of the fact that the A/E, acting on behalf of the Board for the Westview Project, has to inspect and review the work of MCM and, with this proposal, will be in business with MCM on another Board project. Accordingly, MCM's proposal should not have been considered for award. While it is true that, in paragraph G. of the General Requirements of the RFQ, the School Board did not include the words "under contract with the Board" after "General contractor," if it intended that "General contractor," as used in paragraph G., have the same common meaning as the term has in the construction industry (and there is no language in the proposal/bid solicitation documents in evidence compelling the conclusion that it did not have such an intent), these additional words would have been redundant because, as noted above, a "General contractor," as that that term is typically used in the construction industry, is necessarily one who is "under contract" with the owner. Furthermore, contrary to the suggestion made by the School Board Attorney in his March 4, 2003, memorandum, under MCM's proposal, MCM and LIVS would not have a direct business relationship22; rather, LIVS would be doing business with PJB.23 While LIVS' participation (as a third-tier contractor) in the Instant Project with MCM may create a potential "conflict" for LIVS, this potential "conflict," at least arguably, is not the type that is prohibited by paragraph G. of the General Requirements of the RFQ. On March 11, 2003, MCM and PJB sent the following letter to the School Board: This letter will serve as our formal request to replace the engineering firm of LIVS originally selected for State School MMM [with] SDM Consulting Engineers in which MCM's architect of record, PJB Associates, P.A., had entered LIVS as their mechanical and electrical consultants for the above referenced project [the Instant Project]. Even though we consider LIVS to be an excellent engineering firm, d[ue] to an alleged conflict of interest that is said to exist, we are respectfully requesting replacement to prevent controversy.[24] We also request that you submit this to M- DCPS's Legal Department to verify if there is any conflict; and if so, we respectfully request a written reply. In the absence of a reply within the next three working days, we will assume that this issue has been resolved. Thank you in advance for your attention. Also on March 11, 2003, MCM, anticipating that it would not be awarded the contract for the Instant Project, sent the School Board another letter, which read as follows: This letter will serve as notice of the intent of Magnum Construction Management Corporation (MCM) to protest any decision of the Miami-Dade County School Board to reject all bids on the Miami-Coral Park Project. Based on information obtained to date, MCM will assert that the decision to reject all bids is based on the false assumption that under the terms of the Request for Qualifications, MCM was disqualified to bid on the Miami-Coral Park Project and that bids on the project were over budget. MCM will assert that it was qualified to bid on the project and that its bid was responsive and within the budget. MCM subsequently filed a formal written protest and an amended formal written protest. On March 12, 2003, the Design Criteria Professional for the Instant Project sent a letter to Ms. Bazan advising her that the three lowest bids submitted for the Instant Project "were within the budget of $17,473,891.36," and that the two lowest bids, those submitted by MCM and SBR, were "substantially below the State of Florida allowable cost per student station under the Smart Schools Clearinghouse." On March 26, 2003, the School Board referred SBR's and MCM's formal written protests to DOAH. A day later, it referred MCM's amended formal written protest to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order rejecting SBR's protest and awarding the contract for the Instant Project to MCM. DONE AND ENTERED this 1st day of August, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2003.
The Issue The issues are whether the intended contract awarded to Intervenor, The Henry and Rilla White Foundation, Inc. (Intervenor or White), pursuant to Request for Proposals #P2062 (RFP) for an Intensive Delinquency Diversion Services (IDDS) program in Palm Beach County, Florida (Circuit 15), is contrary to Respondent’s governing statutes, policies and rules, and the RFP. Petitioner, Juvenile Services Program, Inc. (Petitioner or JSP), timely challenged the intended award, and alleged that the award to Intervenor was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Respondent is an agency of the State of Florida and is the procuring agency for this proceeding. Petitioner is a not-for-profit corporation duly organized under the laws of the State of Florida. Intervenor is a not-for-profit corporation duly organized under the laws of the State of Florida. On November 23, 2009, Respondent issued the RFP to select a provider to operate IDDS programs in multiple counties, multiple circuits, within Florida. Petitioner did not protest the specifications of the RFP within 72 hours of the issuance of the RFP. Petitioner and White submitted timely responses to the RFP. Both sought the award for Circuit 15. On or about March 5, 2010, the Department posted its NOAA and informed all parties of its intent to award the contract at issue to Intervenor. The NOAA ranked White, first, with 1549.78 points; JSP, second, with 1451.34 points; and Urban League of Palm Beach, Inc., third, with 862.58 points. Petitioner filed a formal protest of the intended award to White on March 15, 2010. Thereafter, representatives from Petitioner and Respondent met to attempt resolution of the protest, but were unsuccessful. As the case moved forward to trial, White petitioned to intervene as the first ranked proposer. It is uncontested that White and JSP have standing in this matter. Throughout these proceedings, Petitioner maintained that Respondent scored the proposals contrary to the specifications of the RFP. Additionally, Petitioner claimed that the persons appointed to evaluate the proposals for the award did not have the requisite experience and knowledge in the program areas, and service requirements sufficient to score the proposals. Under the RFP, three components were to be scored by the evaluators: a technical section; a financial section; and a past performance section. A team of three evaluators independently scored the proposals submitted. Department program area managers selected the evaluators, who were then approved by the Department’s Deputy Secretary. All evaluators were trained in the evaluation process. In order to assure that appropriate employees are selected to serve as evaluators, Amy Johnson, Respondent’s chief of contracts, created a spreadsheet to identify those employees who are qualified to evaluate different types of procurements. The spreadsheet notes which program service area each employee is approved to serve. All of the evaluators in this case were chosen and deemed credentialed by Respondent to evaluate the subject RFP. In this case Karen McNeal, Jeffrey Balliet, and Cheryl Surls were selected and approved to evaluate the responses to the RFP. Ms. Johnson insured that the evaluators were trained to perform their duties. In this regard, Ms. Johnson reviewed the rules of the evaluation process and a generic evaluation with each of the evaluators. Training for the evaluators included how to score, along with sample scoring sheets. Although Ms. McNeal had not served as an evaluator prior to this case, she was appropriately trained and instructed in the methodology and guidelines for scoring proposals. Further, her job training and experience assured that she was familiar with IDDS program services. Mr. Balliet has served as an evaluator for proposals for approximately ten years. Mr. Balliet was appropriately trained and instructed in the scoring process. Additionally, Mr. Balliet’s work experience also qualified him to evaluate the IDDS proposals encompassed within the RFP responses. Finally, Ms. Surls has been familiar with the programs and services of IDDS for several years. She also completed RFP evaluation training prior to being placed on the spreadsheet list of potential evaluators. On January 11, 2010, Elaine Atwood, the procurement officer for the instant RFP, conducted a conference call with the evaluators for this case. All of the evaluators were familiar with the IDDS program and were provided an opportunity to ask Paul Hatcher, the author of the scope of services for this RFP, any program question regarding IDDS and/or the RFP. The Evaluation Team Ground Rules and Instruction specified that the evaluators were to read, evaluate, and score the proposals based upon the scoring sheet matrix. The evaluators were directed not to speak to other evaluators, nor to consider any information from any source other than the information provided within the proposal itself. If any evaluators were to require assistance, he or she was instructed to contact Ms. Atwood. All scoring was to be done based upon the solicitation document and the proposal submitted. The matrix for scoring assigned a score from 0 to 5 depending upon how well the proposal addressed the specification requirement. A score of 5 constituted the highest rating, and only those proposals that exceeded all technical specifications and requirements for the service component specified, with innovative, comprehensive, and complete detail were to receive that score. A score of 0 would be assigned when the proposal did not address the service component specified, or the evaluator could not locate the information in the proposal necessary to use another rating number. Petitioner maintained that one evaluator, Ms. McNeal, failed to follow the directions related to changes to scoring. It is concluded that Ms. McNeal adequately marked the score sheet, such that there was no confusion as to the score awarded, or the time of its entry. Contemporaneous with an initial score of “5” for the category “Management Capability,” Ms. McNeal re-marked the JSP score to a “4.” Similarly, Ms. McNeal re-marked the JSP score for the category “Consideration 1" from “5” to “4.” Any “change” occurred in the matter of moments that it took for Ms. McNeal to re-mark the score sheet, and did not indicate a reflection or after-thought of “change.” If anything, the “change” was to correct an error of marking. Ms. McNeal’s testimony as to the marking of the score sheet and her rationale for re-marking it has been deemed credible. Any deviation from the instructions as to a requirement that “change” must be documented is deemed minor or insignificant. Documenting a “change” is deemed minor and insignificant in this case, because the notation for the score of “4” was contemporaneous with the initial mark and not a later after- thought. Petitioner also challenged Ms. Surls’ award of the score “3” to all of JSP’s categories. Petitioner maintained that such an award demonstrated a lack of understanding regarding the subject matter addressed. To the contrary, Ms. Surls also awarded the score of “3” to White. The only category that exceeded “3” on Ms. Surls scoring of White was "Behavioral Management," for which Intervenor received a “4.” Ms. Surls was consistent and thorough in her review of the proposals and commented appropriately as to the basis for each score. The Technical Proposal narrative submitted by White did not exceed sixty pages. Petitioner did not contest scoring where an evaluator increased JSP’s score without comment. None of the alleged “changes” to scoring gave any proposal an unfair advantage. All proposals were given the same consideration and thoughtful review. The Department has used RFPs to cover multiple circuits in numerous instances. Petitioner did not timely challenge the process of providing for proposals for multiple circuits. Moreover, no evidence supports a finding that the process of covering multiple circuits within one RFP is inherently flawed or contrary to law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Petition filed by Juvenile Service Program. DONE AND ENTERED this 14th day of March, 2011, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 14th day of March, 2011. COPIES FURNISHED: Tonja White Mathews, Esquire Department of Juvenile Justice The Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Andrea V. Nelson, Esquire Walter Kelly, Esquire The Nelson Law Firm, PLC 1020 East Lafayette Street, Suite 214 Tallahassee, Florida 32301 Maureen McCarthy Daughton, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Secretary Department of Juvenile Justice The Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-1300 Jennifer Parker, General Counsel Department of Juvenile Justice The Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-1300
The Issue The issue is whether the proposed policies and summaries of procedures in Sections 7.29 through 7.33 of the Hillsborough County School Board Policy Manual are invalid exercises of delegated legislative authority.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is an engineering firm. Joe Robinson, a professional engineer, is the majority owner and president of Petitioner. Petitioner is a "small business" as defined in Section 288.703, Florida Statutes. Petitioner is also certified as a minority-owned business by the State of Florida and the School Board. Petitioner has performed engineering work on projects for the School Board in the past, and has expressed interest in performing such work for the School Board in the future. Respondent is a local school district, and is responsible for the construction, renovation, management, and operation of the public schools in Hillsborough County. To fulfill those responsibilities, Respondent is often required to obtain the services of architects, engineers and other professionals through competitive procurement under Section 287.055, Florida Statutes, the Consultants' Competitive Negotiation Act (CCNA). Background Prior to the Proposed Rules, the School Board's only adopted policy or procedure relating to the acquisition of professional services was Section 7.14 of the Policy Manual. That section does not specifically reference the CCNA; it simply authorizes the superintendent or his or her designee to "contract for professional or educational services to complete projects or activities authorized or approved by the school board." The only description of the School Board's existing procurement process under the CCNA is in a document entitled "Capital Projects Standard Procedures." That document was presented to but never adopted by the School Board, and it provides only a general outline of the procurement process. The procedures utilized by the School Board to procure professional architectural, engineering, and construction management services have been the subject of considerable review and some criticism over the past year. In February 2002, Mr. Robinson, on behalf of the Black Business Union, provided the School Board with a list of concerns related to the School Board's selection process, including: Selection criteria does not comport to requirements of F.S. 287.055 (i.e., points for utilizing certified minority firms, volume of work, etc.) [School Board] practices fail to follow the requirements of Chapter 4, SREF, Volume #1, and have not been adopted through any determinable policy or procedure. Compliance with [School Board] Policy 7.14 Purchasing Policies and Bidding, has not been followed. (Designees are exempt from nepotism and favoritism policy) On May 17, 2002, the Ernst & Young consulting firm submitted to the School Board a report summarizing the findings and recommendations of its "forensic evaluation and analysis of the District's construction and maintenance policies, practices, and procedures." At the request of the School Board staff, Mr. Robinson provided comments to Ernst & Young in connection with the evaluation. The Ernst & Young report was critical of many aspects of the School Board's procurement, construction, and maintenance policies, practices, and procedures. With respect to the procurement of architectural and engineering services, the report included the following assessment which is pertinent here: Our review of [the District's] vendor's [sic] selection process indicates, in many respects, that the process follows traditional requirements established by SREF and Florida Statute [sic]. Furthermore, in many instances, the procedures mirror those utilized by peer and contiguous school districts. However, we have identified significant shortcomings related to ranking the professional service providers that have submitted bids for either architectural design, engineering, or construction management services. * * * Interviews with the A/E/C [architectural/engineering/ construction] community have indicated that the vendor selection process is generally understood by the professional community. However, the architects and construction managers within the community do not understand how vendors are evaluated or ultimately rank ordered [sic] by the District to arrive at a list of the three highest ranked respondents. As a matter of fact, the District has moved away from using a score sheet or "score card" with pre-established evaluation criteria and a weighted point structure, and toward a rather subjective process whereby a selection committee simply appoints professional service providers either based upon past performance on a similar type of project (i.e. replicate design) or based upon the District's desire to equitably distribute work amongst the A/E/C community. This type of evaluation and selection process, as currently utilized by the District, while effective at distributing work amongst the A/E/C community, does not ensure that the best or most qualified vendor will be selected for each of the proposed school district projects. The current vendor selection process could permit abuse and favoritism as the selection committee could be influenced by School Board input, personal relationship [sic] and lack of objective criteria. Although we found no evidence of undue influence, the subjective nature of the process offers the District little credibility. * * * E&Y [Ernst & Young] found that the vendor selection process being utilized by [the District] lacks credibility in that it remains highly subjective as new projects are allocated without respect to numerical analysis of prior performance, company financial condition, proposed project management team, etc. Moreover, the selection committees do not rotate sufficiently to eliminate the possible influence from senior [District] Administrators or Board Members. * * * Upon comparison to each of the peer and contiguous school districts, Ernst & Young found that only [the District] engages in a vendor selection process in the absence of pre-established or pre-determined evaluation criteria and a numerically-based scoring system which permits a numerical ranking of each interested professional service provider. E&Y found that the vendor selection process being utilized by [the District] lacks credibility in that it remains highly subjective as new projects are allocated without respect to numerical analysis of proper performance, company financial condition, proposed project management team, etc. . . . Ernst & Young Report, at 27-29, 107 (emphasis supplied). The report included the following recommendations relevant to the procurement of architectural and engineering services: The District's vendor selection process can be more objective and better understood within the A/E/C community by developing standard evaluation criteria and a numerically-based scoring system. Such a system will permit the District to numerically rank each interested professional service provider and thus eliminate bias and potential favoritism of the [District] selection committee. Evaluation criteria should include, among other things, prior performance, company financial condition, proposed project management team, etc. Moreover E&Y recommends that the District augment its vendor selection committees with community members, business leaders, school principals, and other external stakeholders as appropriate. In conjunction, [the District] should also increase its rotation of the selection committees [sic] members to eliminate possible influence from senior Administrators or Board Members. Ernst & Young Report, at 117. On July 31, 2002, Gibson Consulting Group (Gibson), on behalf of the Legislature's Office of Program Policy Analysis and Governmental Accountability, submitted a report based upon its "best financial management practices" review of the School Board pursuant to Section 230.23025, Florida Statutes (2001). Unlike the Ernst & Young report, the Gibson report was not critical of the District's procurement process for professional services. Indeed, the report concluded that the District "has an efficient school planning and construction operation" (Gibson Report, at 6 and 10-1), and that it is utilizing best management practices in procuring professional services. Id. at 13 and 10-34 through 10-35. The Gibson report stated that "[t]he district can demonstrate that procedures for selection were in compliance with Subsections 287.055 and 235.211, Florida Statutes, and that the committee screened written applications in order to select an appropriate number of professionals to be interviewed and that selected candidates were interviewed." Id. at 10-34 (emphasis supplied). The Gibson report also noted that the district can demonstrate that the interview committee considered the factors described in Section 287.055, Florida Statutes, including minority business status. Id. The Gibson report did not acknowledge or address the shortcomings in the evaluation process detailed in the Ernst & Young report. The Gibson report did acknowledge that "[t]he state statute [Section 287.055] encourages objectivity," but it nevertheless concluded that the School Board’s existing procurement process is "an effective hybrid of objectivity and subjectivity." Id. at 10-35. Aside from that conclusion, the results of both studies are consistent with the findings and conclusions in the Recommended Order in DOAH Case No. 02-2230BID. DOAH Case No. 02-2230BID involved a challenge to the specifications of a request for qualifications (RFQ) issued by the School Board in response to a recommendation in the Ernst & Young report that the School Board supplement its in-house staff with contract architects or engineers to provide more on-site supervision and inspection of construction projects. Petitioner in this case was also Petitioner in DOAH Case No. 02-2230BID. The Recommended Order in DOAH Case No. 02-2230BID concluded (consistent with the Gibson report) that "the School Board's current selection process, although not detailed in a formally-adopted rule or policy, is consistent with the procedural requirements of the CCNA." See DOAH Case No. 02- 2230BID Recommended Order, at 35 (emphasis supplied). However, the Recommended Order also concluded (consistent with the Ernst & Young report) that the evaluation of consultants was arbitrary and contrary to competition because the factors upon which the evaluation would be made and the weight afforded to each factor was not specified in advance and because the committee members did not utilize a uniform method of evaluation. Id. at 36. Based upon the conclusion that the RFQ specifications were arbitrary and contrary to competition, the Recommended Order recommended that: the School Board issue a final order that rescinds the [RFQ] and reformulates the specifications of the request in a manner that, at a minimum, advises potential respondents in advance of the factors upon which the responses will be evaluated and the weight that will be uniformly given to each factor by the selection committee. DOAH Case No. 02-2230BID Recommended Order, at 37. The Recommended Order in DOAH Case No. 02-2230BID was issued on September 6, 2002. The record does not reflect whether the School Board has issued its final order in that case yet.3 As of the date of this Order, the final order in DOAH Case No. 02-2230BID had not been filed with the Division in accordance with Section 120.57(1)(k), Florida Statutes. Rulemaking Process In response to the Ernst & Young report and Petitioner's challenge to the RFQ specifications in DOAH Case No. 02-2230BID, the School Board initiated the rulemaking process to formalize and improve its competitive procurement procedures under the CCNA. The Proposed Rules were drafted by Tom Blackwell, the School Board's Director of Planning and Construction, and the School Board's attorney. The Proposed Rules were reviewed by an engineer on Mr. Blackwell's staff. The language of the Proposed Rules was derived from the procurement policies used by other local school boards, the State University System, and other governmental entities. Copies of those other policies were not introduced at the hearing. The Proposed Rules were first considered by the School Board at its meeting on June 18, 2002. The record does not include a copy of the notice that was provided for the June 18, 2002, meeting. Typically, however, the agenda of the meeting is provided to the press and posted on the School Board's website. The agenda includes only the general subject-matter of the agenda items (i.e., "procurement of professional services") and not their substance. The Proposed Rules were an "off-agenda item." They did not appear on the published agenda, so the first public notice that the Proposed Rules would be considered at the June 18, 2002, meeting may have been at the meeting itself. Petitioner (through Mr. Robinson) was aware that the Proposed Rules would be considered at the June 18, 2002, meeting. Mr. Robinson attended the meeting and provided extensive comments on the Proposed Rules. Copies of the Proposed Rules were apparently available at the June 18, 2002, meeting, because Mr. Robinson annotated his copy of the Proposed Rules (Exhibit P3) as he provided his comments to the School Board. At the conclusion of the June 18, 2002, meeting, the School Board authorized its staff to "go forward" with the Proposed Rules. Based upon that authorization, notices were published in local newspapers on June 27 (The Courier), June 28 (La Gaceta), June 29 (Tampa Tribune), and July 5, 2002 (Florida Sentinel-Bulletin). The notices were published in the legal advertisement sections of the papers. The notices stated in relevant part: In compliance with the Administrative Procedure Act, Chapter [sic] 120.54 of the Florida Statutes, 1978 [sic], and the School Board of Hillsborough County's policies, the public is hereby notified of the following amendment to the School Board's Policy Manual: 7.29 Acquisition of Professional Services, 7.30 Public Announcement, 7.31 Competitive Selection, 7.32 Competitive Negotiation, and 7.33 Standardized Agreements. Anyone challenging the above affected Policy/Summaries of Procedures is requested to do so in writing and mail or deliver to the address listed below within twenty-one (21) days of this notice. The public hearing is scheduled for July 30, 2002, 6:00 p.m., in the Board Room, Raymond O. Shelton School Administrative Center, 901 East Kennedy Boulevard. Copies of the affected Policy/ Summaries of Procedures, which have no appreciable economic impact on the school system, are available for inspection and copying at the office of the Superintended of Schools, Hillsborough County School Administrative Center. The notices did not identify the specific authority or law implemented by the Proposed Rules. However, that information was included on the copies of the Proposed Rules available at both the June 18 and July 30, 2002, School Board meetings. On July 11, 2002, Mr. Robinson sent a letter on behalf of Petitioner to the School Board requesting "a Public Workshop pursuant to Florida Statute 120.54(2)(c)" or an explanation from the agency head as to why such a workshop is unnecessary. On July 19, 2002, the chairwoman of the School Board responded to Mr. Robinson's letter and stated that a workshop was determined to be unnecessary because a public hearing was already scheduled on the Proposed Rules for July 30, 2002. The chairwoman also noted that the School Board staff had met with Mr. Robinson on a number of occasions to discuss the procurement policy, and that Mr. Robinson appeared at the June 18, 2002, meeting where he presented his recommendations on the policy. The chairwoman invited Mr. Robinson to submit written comments to the School Board prior to the July 30, 2002, public hearing, and to make an oral presentation to the School Board at the public hearing. On July 25, 2002, in response to the invitation in the chairwoman's letter, Petitioner (through Mr. Robinson) submitted a comprehensive procurement policy for the School Board's consideration. The policy was submitted as an alternative to the Proposed Rules. Petitioner's proposed policy (Exhibit P7) tracks the language of Section 287.055, Florida Statutes. It also includes the prohibition against contingent fees and the exemption for reuse of existing plans which are in the statute but were not restated in the Proposed Rules. Petitioner's proposed policy also includes a detailed explanation of the selection process, instructions for the evaluation of applicants (including criteria to be considered in the evaluation and the process for awarding points for those criteria), and forms to be used by applicants and scoring sheets to be used by the evaluation committee. The School Board held a public hearing on the Proposed Rules at its July 30, 2002, meeting. Mr. Robinson attended the meeting and provided comments on each of the Proposed Rules. The minutes of the July 30, 2002, meeting reflect that at least one other professional, an architect, appeared and provided comments on the Proposed Rules at the public hearing. At the conclusion of the public hearing, the School Board voted unanimously (six to zero) to approve the Proposed Rules. The version of the Proposed Rules approved by the School Board on July 30, 2002, included several of the changes previously recommended by Mr. Robinson. Those changes are discussed below. On August 9, 2002 (10 days after the School Board's July 30, 2002, meeting), Petitioner filed a petition with the Division requesting a determination that the Proposed Rules are invalid exercises of delegated legislative authority. Substance of the Proposed Rules The Proposed Rules create Sections 7.29 through 7.33 of the Policy Manual. The complete text of the Proposed Rules is included in the Appendix to this Final Order. Each section of the Policy Manual has two parts, a "policy" statement and a "summary of procedures" that implement the policy. The Proposed Rules follow that same pattern. Accordingly, the "policy" and the "summary of procedures" must be read together. The specific authority cited for the Proposed Rules is Sections 230.03(2), 230.22, 230.23, 235.211, and 230.23005, Florida Statutes. The law implemented by the Proposed Rules is Sections 235.211 and 287.055, Florida Statutes. The procedural aspects of the Proposed Rules are essentially the same as the practice followed by the School Board in the past as detailed in the Recommended Order in DOAH Case No. 02-2230BID. Proposed Section 7.294 establishes the general policy that professional architectural, engineering, landscape architectural, land surveying, or construction management services will be procured in accordance with the CCNA. The School Board's Operations Division is assigned the responsibility for administering the procurement process. Proposed Section 7.30 establishes the public announcement requirements for acquisitions of professional services on projects with construction costs in excess of $250,000 or professional service fees in excess of $25,000. Those are the same thresholds in the CCNA. The public announcement must include "a general description of the project and must indicate how interested consultants may apply for consideration." The announcement is required to be published in the Tampa Tribune, La Gaceta, the Florida Sentinel Bulletin, and another paper whose circulation is in the vicinity of the project. Proposed Section 7.31 outlines the competitive selection process. It requires firms interested in providing services to the District to be certified as being qualified to render the required service, and provides a non-exclusive list of factors to be used in determining whether the firm is qualified. Proposed Section 7.31 also creates the Professional Services Selection Committee (Committee) that is responsible for evaluating and ranking prospective providers of professional services. The Committee is chaired by the Assistant Superintendent of Operations, and the other members of the Committee are specified. The Committee is responsible for evaluating materials submitted by interested firms, conducting interviews, hearing presentations, and ranking applicants. The evaluation criteria "shall" include: the ability of professional personnel; whether the firm is a certified minority business enterprise; past performance; willingness to meet time and budget requirements; location; recent, current, and projected workloads of the firms; and the volume of work previously awarded to each firm by the District, and such other factors which may be pertinent to the project. Section 7.31 (emphasis supplied). The word "shall" was used rather than "may" based upon Mr. Robinson's comments at the June 18, 2002, workshop. As a result, consideration of these criteria/factors is mandatory. However, as the underscored language suggests, the evaluation criteria may vary from project to project. The project-specific evaluation criteria will be available to prospective applicants at the time of the public announcement along with the location of project, scope of work, project budget, project schedule, and submission requirements. See Proposed Section 7.30. In addition, Proposed Section 7.31 requires the weights to be associated with each qualification and evaluation criteria to be disseminated to prospective applicants, presumably also at the time of the public announcement. Proposed Section 7.31 requires the Committee to "report a consensus evaluation for each applicant, including a relative ranking for each weighted criteria." The phrase "consensus evaluation" is not explained, but because the Committee is required to "short-list" the three firms that receive the "highest aggregate score" it appears that the evaluation will be made based upon a numerical scoring system. Such a system is a significant improvement over the existing evaluation process which was found to be arbitrary in the Recommended Order in DOAH Case No. 02-2230BID at pages 16-17. Indeed, the School Board's witnesses confirmed that, although the criteria and weights may vary from project to project, all of the applicants for a particular project will be evaluated and scored by the Committee members in a uniform manner. The Committee is required to interview the applicants as part of its evaluation if the project's construction cost is more than $1 million. If the cost is less than $1 million, Proposed Section 7.31 provides that interviews are optional. The purpose of the threshold was not explained at the hearing. Mr. Blackwell simply testified that the threshold was derived from a review of the policies of other governmental entities. Those policies were not introduced at the hearing, and the record is devoid of any other evidence to justify the School Board's choice of $1 million as the threshold, as compared to some other amount. The Committee's "short-list" will be submitted to the School Board for approval. Thereafter, the School Board is required to notify each applicant of the "short-listed" firms. The notice must be given by certified mail, return receipt requested, and must include the notice required by Section 120.57(3)(a), Florida Statutes. The latter requirement was added after the June 18, 2002, meeting based upon Mr. Robinson's comments. Proposed Section 7.32 outlines the competitive negotiation process. Pursuant to that section, the Director of Planning and Construction is required to negotiate with the top- ranked firm. The top-ranked firm is required to submit a fee proposal with supportive information, if required. If a mutually acceptable compensation package cannot be negotiated with the top-ranked firm, negations will commence with the next firm on the "short list." Upon completion of successful negotiations, the agreed compensation must be submitted to the School Board for approval. Proposed Section 7.33 requires the Director of Planning and Construction, in collaboration with the School Board attorney, to prepare standard contract documents to be used on all projects. Modifications from the standard documents must be clearly indicated. In short, the polices and summaries of procedures in the Proposed Rules prescribe the process that will be followed in connection with all procurements subject to the CCNA. The policies and procedures also prescribe the critical substantive aspects of the process, but they contemplate additional detail being provided on a project-by-project basis in the solicitation package (i.e., RFQ or request for proposals (RFP)) for the project. The project-specific materials, which will be available to potential applicants at the time of the public announcement (and, hence, in advance of the submittal and evaluation of responses) will specify the particular evaluation criteria/factors to be used by the Committee as well as the weight that will be given to each factor. Those materials will include forms, instructions, and other information similar to that in Petitioner's alternative proposal (Exhibit P7). The Proposed Rules do not specifically incorporate the prohibition on contingent fees in Section 287.055(6), Florida Statutes, nor do they incorporate the provisions of Section 287.055(10), Florida Statutes, relating to reuse of existing plans.
The Issue The issue is whether the specifications in the request for qualifications advertised by Respondent on May 21, 2002, are inconsistent with the provisions of Section 287.055, Florida Statutes, arbitrary, or otherwise contrary to competition.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is an engineering firm. Joe Robinson, a professional engineer, is the majority owner and president of Petitioner. Petitioner is a certified minority-owned business because Mr. Robinson and at least one of his partners are African-American males. Respondent is a local school district, and is responsible for the management and operation of the approximately 200 public schools in Hillsborough County. Respondent's annual budget for construction and renovation of schools is between $160 million and $200 million per year, with an unspecified but large portion of that amount attributable to the cost of competitively procured architectural, engineering and construction services. Petitioner has done very little engineering work for the School Board in the past. It worked on a study for the School Board in 1986, and worked on a warehouse project for the School Board in 1994. Over the past four years, Petitioner has applied for only one engineering project with the School Board. At the request of the School Board staff, Mr. Robinson provided comments to Ernst & Young, a consulting firm hired by the School Board to conduct "a forensic evaluation and analysis of the District's construction and maintenance policies, practices, and procedures” and to review the School Board's minority business enterprise program. The findings and recommendations in the report prepared by Ernst & Young (discussed below), along with Petitioner's "insights" and input, led to revisions in the School Board’s policies and procedures for procuring architectural and engineering services. Those revisions, adopted by the School Board on July 30, 2002, are not at issue in this proceeding; they are being challenged by Petitioner in DOAH Case No. 01- 3138RP. Ernst & Young Report On May 17, 2002, Ernst & Young submitted a 121-page report based upon its evaluation. The report was critical of many aspects of the School Board's procurement, construction, and maintenance policies, practices, and procedures. With respect to the procurement of architectural and engineering services, the report included the following assessment which is pertinent here: Our review of [the District's] vendor's [sic] selection process indicates, in many respects, that the process follows traditional requirements established by SREF and Florida Statute [sic]. Furthermore, in many instances, the procedures mirror those utilized by peer and contiguous school districts. However, we have identified significant shortcomings related to ranking the professional service providers that have submitted bids for either architectural design, engineering, or construction management services. * * * Interviews with the A/E/C [architectural/engineering/construction] community have indicated that the vendor selection process is generally understood by the professional community. However, the architects and construction managers within the community do not understand how vendors are evaluated or ultimately rank ordered [sic] by the District to arrive at a list of the three highest ranked respondents. As a matter of fact, the District has moved away from using a score sheet or "score card" with pre-established evaluation criteria and a weighted point structure, and toward a rather subjective process whereby a selection committee simply appoints professional service providers either based upon past performance on a similar type of project (i.e. replicate design) or based upon the District's desire to equitably distribute work amongst the A/E/C community. This type of evaluation and selection process, as currently utilized by the District, while effective at distributing work amongst the A/E/C community, does not ensure that the best or most qualified vendor will be selected for each of the proposed school district projects. The current vendor selection process could permit abuse and favoritism as the selection committee could be influenced by School Board input, personal relationship [sic] and lack of objective criteria. Although we found no evidence of undue influence, the subjective nature of the process offers the District little credibility. * * * E&Y [Ernst & Young] found that the vendor selection process being utilized by [the District] lacks credibility in that it remains highly subjective as new projects are allocated without respect to numerical analysis of prior performance, company financial condition, proposed project management team, etc. Moreover, the selection committees do not rotate sufficiently to eliminate the possible influence from senior [District] Administrators or Board Members. Ernst & Young Report, at 27-29 (emphasis supplied). On these points, the report concluded: Upon comparison to each of the peer and contiguous school districts, Ernst & Young found that only [the District] engages in a vendor selection process in the absence of pre-established or pre-determined evaluation criteria and a numerically-based scoring system which permits a numerical ranking of each interested professional service provider. E&Y found that the vendor selection process being utilized by [the District] lacks credibility in that it remains highly subjective as new projects are allocated without respect to numerical analysis of proper performance, company financial condition, proposed project management team, etc. . . . Ernst & Young Report, at 107 (emphasis supplied). The report's description of the School Board's current evaluation and selection process is consistent with the testimony at the hearing, as more fully discussed below. The report included the following recommendations relevant to the procurement of architectural and engineering services: The District's vendor selection process can be more objective and better understood within the A/E/C community by developing standard evaluation criteria and a numerically-based scoring system. Such a system will permit the District to numerically rank each interested professional service provider and thus eliminate bias and potential favoritism of the [District] selection committee. Evaluation criteria should include, among other things, prior performance, company financial condition, proposed project management team, etc. Moreover E&Y recommends that the District augment its vendor selection committees with community members, business leaders, school principals, and other external stakeholders as appropriate. In conjunction, [the District] should also increase its rotation of the selection committees [sic] members to eliminate possible influence from senior Administrators or Board Members. Ernst & Young Report, at 117. The Request for Qualifications The School Board has five in-house architects and six in-house inspectors who are responsible for overseeing all of the District's planning and construction projects. The primary function performed by the architects is project management, i.e., "rid[ing] herd" over construction schedules and overseeing the work of the project architects and construction managers. The primary functions of the inspectors are code enforcement, quality assurance management, and contract compliance. In addition to the recommendations quoted above, the Ernst & Young report recommended that the School Board augment its in-house staff to provide more on-site supervision and inspection of construction projects. Specifically, the report recommended: [T]o protect the District's interest, it would be beneficial to have a full-time on- site owner's representative, which could be either a District employee, a licensed architect, independent engineer or experienced construction manager with a demonstrated history of successfully completing quality construction projects. The result of the full time [sic] on-site representative is better control of the quality of the work being performed, a working knowledge of the project, the ability to identify and solve problems when they first arise, and promotes the accountability amount the parties involved to deliver the highest quality product. Since capital project expenditures are expected to peak within the next three years, E&Y recommends using either an outsourcing strategy or contract employee to serve this need. Ernst & Young Report, at 118-19. In an effort to implement this recommendation, the School Board published the following notice in the Tampa Tribune on May 21, 2002: THE SCHOOL BOARD OF HILLSBOROUGH COUNTY, Florida, announces that professional architectural and/or professional engineering services will be required. These services will consist of providing architectural and/or engineering project management personnel to supplement existing district staff. Duties may include design reviews, project coordination, administration, on-site observation and quality control. Applicants will be expected to provide personnel possessing recent relevant project management experience on K-12 educational facilities. Any applicant interested in providing services shall submit a completed G.S.A. Form 254. Said form shall be separate and apart from any accompanying materials. All material must be submitted to J. Thomas Blackwell, Director of Planning & Construction, 901 East Kennedy Boulevard, Tampa, Florida 33602 by 4:00 p.m. on May 31, 2002. Applicants are encouraged to submit electronically by emailing pdf documents to tom.blackwell@rossac2.sdhc.k12.fl.us. No additional information was made available to potential respondents regarding the nature or extent of the services sought to be procured by the RFQ. However, at the hearing, it was explained that the School Board expected to procure the services of five project coordinators or project managers through the RFQ. The five positions could be filled by different firms on a full-time or half-time basis or by a single firm, depending upon the submittals and the outcome of the evaluation process. The G.S.A. Form 254 referenced in the advertisement solicited general information about the applicant, including whether the applicant is a "small disadvantaged business." The form also required the applicant to provide a list of its projects over the past five years, including information relating to the type of project, cost of the project, and completion date. Neither the RFQ nor any other information provided to potential respondents in advance explains how the responses will be evaluated. Neither the RFQ nor any other information provided to potential respondents in advance identifies the factors that the School Board will consider in evaluating the response or the weight that the School Board will give to such factors. Petitioner's Protest Petitioner received notice of the RFQ on May 21, 2002, through the newspaper advertisement. The evidence does not establish the time of day that Petitioner received such notice. By letter dated May 24, 2002, Petitioner provided the School Board notice of its intent to protest the specifications in the RFQ. By letter dated June 3, 2002, Petitioner formally protested the "selection methods" for the RFQ. The record does not reflect when the School Board received the letters. However, Mr. Robinson testified that he "filed" the notice of protest letter on May 24, 2002, and "filed" the formal protest letter on June 3, 2002. Petitioner, as an engineering firm, is qualified to submit a response to the RFQ. However, Petitioner did not submit a response to the RFQ. The record does not reflect how many, if any, firms responded to the RFQ by the May 31, 2002, deadline. As a result of Petitioner's protest, the School Board put the RFQ "on hold." The School Board's Procurement Process At the time the RFQ was advertised, the School Board did not have an adopted policy prescribing the procedure by which it procured professional services in accordance with the Consultants' Competitive Negotiation Act (CCNA) in Section 287.055, Florida Statutes. Moreover, the policies and procedures that were in place (discussed below) did not explain to potential respondents how the responses to the RFQ will be evaluated, nor did they prescribe the factors that the School Board will consider in evaluating the responses or the weight that will be given to each factor. Section 7.14 of the Policy Manual simply authorizes the superintendent or his or her designee to "contract for professional or educational services to complete projects or activities authorized or approved by the school board." The only other document describing the School Board's procurement process is a document entitled "Capital Projects Standard Procedures." That document was presented to but never adopted by the School Board. The document references the CCNA in connection with the selection of architects and construction managers, but not engineers; and, it only provides a general outline of the selection process: Publish legal advertisement for Professional Services (CCNA) Screen (interview/presentation) applicants Present "Order of Priority" to School Board Negotiate contract terms and identify consultants Present compensation package to School Board Prepare contract documents Secure signature of Architect and Board Chair Despite the absence of an adopted policy, the selection process described by the School Board's witnesses at the hearing generally complies with the requirements of the CCNA. That process would be used to evaluate the responses to the RFQ. The process begins with publication of the RFQ in three local newspapers, the Tampa Tribune, the Florida Sentinel Bulliten, and La Gaceta. The RFQ is also posted on a website maintained by Tom Blackwell, the Director of Planning and Construction for the School Board. In the past, Mr. Blackwell also sent e-mails to firms which had previously applied for work from the School Board or which had shown interest in obtaining such work, but he no longer does so. All of the applications received in response to the RFQ are referred to a committee for evaluation and interviews. In the past, the School Board utilized a list of certified vendors and interviewed only those applicants which had been certified. However, the School Board now interviews every applicant and uses the interview process to verify the applicant's credentials. The committee is composed of five to seven members selected by Mr. Blackwell and Jack Davis, the School Board's Assistant Superintendent for Operations. The committee members include representatives of each of the District's administrative divisions, e.g., instructional, operations, and administrative. Mr. Blackwell acts as a facilitator for the committee, but typically does not function as a voting member. Mr. Blackwell provides the committee members a copy of the CCNA, and reviews with them the factors set forth therein. Mr. Blackwell also provides the committee members "tally sheets" which are used to evaluate the applicants in specified areas. The sample "tally sheet" introduced at the hearing (Exhibit R2), identified 10 different "topics" for evaluation and assigned points to each topic: Topic Points Experience in projects of similar size, scope and quality 15 History of adherence to budget constraints and cost control mechanisms 10 History of adherence to schedule constraints and delivery dates 10 References 10 Established quality control mechanisms 5 Established scheduling program 5 History of minority business participation 10 Qualifications of key personnel, support staff and resources 5 Organization of project team 5 Interview / Presentation 25 The committee members are not required to complete the "tally sheets" in any particular manner. Indeed, there are no written guidelines prescribing the manner in which the "tally sheets" must be completed by the committee members. Mr. Blackwell and Mr. Davis both testified that committee members are given discretion as to the manner in which they record their observations of the applicants. In this regard, some committee members assign points to each applicant (as the sample "tally sheet" seems to contemplate), others use anecdotal notes, grades (i.e., A, B, C, D, or F), pluses and minuses, or check marks. The committee reviews the materials submitted by the applicants in response to the RFQ (the completed G.S.A. Form 254) and formulates questions for the applicants based the criteria in the CCNA, e.g., the applicant's minority status or its minority participation history, its experience in completing projects on-time and within budget, its quality control and assurance measures. These questions are typically provided to the applicants in advance to enable them to prepare for their presentations and interviews. Each applicant is given an opportunity to make a presentation to the committee. No guidelines are provided for the presentations. The types of presentations range from computerized presentations to display boards to bound books of information. As part of the presentation, the committee asks questions and interviews the applicant. The committee is responsible for ranking the applicants based upon their qualifications. The committee does not consider compensation issues in formulating its ranking. The committee formulates its ranking through a "consensus or group decision making process" rather than through a compilation of individual numerical scores. The decision- making process includes a discussion of each applicant's strengths and weaknesses by the committee members based upon their individual evaluations, input from District staff who worked with the applicant in the past, and visits to prior projects in which the applicant has been involved. The committee's ranking is submitted to the School Board for approval. After the School Board approves the ranking, Mr. Blackwell and his staff begin negotiations with the top-ranked applicant. The negotiations include discussion of the parameters of the project in greater detail as well as the compensation package. If the negotiations with the top-ranked firm fail, then negotiations are commenced with next highest ranked firm. Typically, however, the negotiations with the top-ranked firm are successful. Once the negotiations are completed, a contract is presented to the School Board for approval. The Revised Procurement Policy On July 30, 2002, the School Board approved revisions to its procurement policy and procedure. The revisions will be codified in Sections 7.29 through 7.33 of the Policy Manual. The new Section 7.29 establishes the following policy for the acquisition of professional services: The acquisition of professional architecture, engineering, landscape architectural, land surveying, or construction management services shall be procured in accordance with Florida Statute 287.055 with the object of effecting an equitable distribution of contracts among qualified firms, provided such distribution does not violate the principle of selection of the most highly qualified firms. The other new sections establish the policies and procedures for the steps in the acquisition process, i.e., public announcement (Section 7.30), competitive selection (Section 7.31), competitive negotiation (Section 7.32), and standardized agreements (Section 7.33). As noted above, Petitioner has challenged the validity of the revised policies in DOAH Case No. 02-3138RP. However, both Mr. Robinson and the School Board's witnesses agree that the revised policy is an improvement on the School Board's existing policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is 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. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 6th day of September, 2002.
