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 architectural services first advertised by Respondent on November 12, 2002, are contrary to Respondent's governing statutes and adopted policies or are otherwise vague, arbitrary or contrary to competition.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is a consulting engineering firm. Its principal office is in Tampa, Florida. Petitioner is certified by and/or registered with the State of Florida and the School Board as a minority-owned business. Petitioner’s majority owner and president, Joe Robinson, is an African-American male. Petitioner employs several licensed professional engineers, including Mr. Robinson. Mr. Robinson serves as the "qualifier" for the firm, which enables the firm to provide engineering services in its corporate name. Petitioner does not employ any registered architects and, hence, does not have a "qualifier" which would enable the firm to provide architectural services in its corporate name. Respondent does not have a certificate of authorization from the Board of Architecture and Interior Design. Petitioner has an oral arrangement with Paul Jackson, a registered architect, which allows Petitioner to include Mr. Jackson's resume in its response to bid proposals and other competitive procurement solicitations. If Petitioner is awarded a contract using Mr. Jackson's resume, Mr. Jackson would become a "staff member" or "employee" of Petitioner. The specifics of such an arrangement are not entirely clear, however, because Petitioner has not been awarded a contract on a project where it submitted Mr. Jackson's resume. 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). Relevant Background Recent Scrutiny of the School Board's Procurement Practices The School Board's process for procuring professional services has been the subject of considerable scrutiny over the past year. In May 2002, the Ernst & Young consulting firm completed a "forensic evaluation and analysis" of the School Board's procurement process. The Ernst & Young report identified a number of deficiencies in the process. In July 2002, the Gibson Consulting Group (Gibson), on behalf of the Legislature's Office of Program Policy Analysis and Governmental Accountability, completed a performance audit of the School Board. Gibson's assessment of the School Board's procurement process was generally favorable. The School Board's procurement process has also been the subject of several legal challenges brought by Petitioner. Indeed, this is the fourth case at the Division of Administrative Hearings between Petitioner and the School Board involving the School Board's procurement process under the CCNA. The first case, DOAH Case No. 02-2230BID, involved Petitioner's challenge to the specifications of a request for qualifications (RFQ) issued by the School Board in May 2002. The purpose of the RFQ was to implement the recommendation in the Ernst & Young report that the School Board supplement its in-house staff of architects and engineers in order to provide increased on-site supervision, management, and inspection of ongoing school construction projects. The Recommended Order in DOAH Case No. 02-2230BID concluded that the RFQ was arbitrary and contrary to competition because it did not inform potential Respondents in advance of the criteria or factors upon which the responses would be evaluated or the weight that would be given to each factor and because the selection committee members did not use a uniform method for evaluating the Respondents. The Recommended Order recommended that the School Board rescind the RFQ, which the School Board did. The second case, DOAH Case No. 02-3138RP, involved Petitioner's challenge to the new policies and summaries of procedures adopted as part of the School Board's Policy Manual in response to the Ernst & Young report and the deficiencies alleged (and ultimately proven) by Petitioner in DOAH Case No. 02-2230BID. The Final Order in DOAH Case No. 02-3138RP concluded that the new policies and summaries of procedures were not invalid exercises of delegated legislative authority, except for the provision which purported to make interviews optional for projects costing less than $1 million. The Final Order was not appealed. The third case, DOAH Case No. 02-3922F, involved Petitioner's request for attorney's fees and costs under Section 57.111, Florida Statutes, as the prevailing small business party in DOAH Case No. 02-2230BID. The Final Order in DOAH Case No. 02-3922F (issued in conjunction with this Recommended Order) concluded that Respondent was not substantially justified when it issued the RFQ and that no special circumstances exist which would make an award to Petitioner unjust. Accordingly, the Final Order awarded Petitioner $5,563.00 in attorney's fees and costs for DOAH Case No. 02-2230BID. As more fully detailed in the Recommended and Final Orders issued in those cases, the School Board's existing procurement process had its flaws, but the changes that were made to the process and the new policies which were adopted as a result of the recent scrutiny of the process adequately remedied those flaws. This case involves the application of those new policies for the first time. The School Board's Minority Business Enterprise Program The School Board created a Minority Business Enterprise Program (MBE Program) in June 1995 and, at the same time, the School Board established a "10 percent minority inclusion goal for all construction related services" (hereafter "10 percent MBE Goal" or "Goal"). The stated purpose of the MBE Program and the Goal was to "increase the opportunities for minority/women enterprises and individuals who participate in providing construction services as general contractors or subcontractors for Hillsborough County Schools." The Goal does not define the phrase "construction related services." Apparently, however, the Goal has never been construed by the School Board to apply to the procurement of professional services, such as architects or engineers. Instead, it has only been applied to vocational trades such as masonry, pluming, concrete, dry-walling, plastering, etc. This interpretation of the Goal -- which was confirmed by each of the School Board employees who testified at the hearing, including the manager of the MBE Program -- is consistent with the language in the document discussing the function and operation of the MBE Program. That document refers to "bids," "trades," "contractors," and "subcontractors" rather than the procurement of professional services. The School Board is expected to consider an expansion of the MBE Program and the Goal beyond its current scope to include the procurement of professional services as part of its 2003-04 agenda. The Request for Architectural Services and Petitioner's Protest As required by Section 7.30 of the School Board's Policy Manual, the RAS was published in the Tampa Tribune (on November 12, 2002), the Florida Sentinel Bulletin (on November 12, 2002), the Tampa Record (on November 14, 2002), and the La Gaceta (on November 15, 2002). The RAS announces the School Board's need for professional architectural services on six school projects, five involving new construction and one involving remodeling and renovation. The construction budgets for the projects range from $7.5 million to $13.6 million. The RAS states in pertinent part: Any applicant interested in providing architectural services shall make application by submission of the materials prescribed in the Project Information Packet. Required materials shall be separate and apart from any accompanying materials. Only applicants with offices in Hillsborough County will be considered. Professional liability insurance will be required for these commissions. The Project Information Packets, additional project information and the weights associated with each qualification and evaluation criteria can be obtained by contacting the Planning & Construction Office at (813) 272-4112 or via the Internet at http://apps.sdhc.k12.fl.us/sdhc2/planning/pa .htm. The RAS does not define the scope of the "architectural services" that are being sought. Apparently, however, the RAS is seeking "full architectural services," which means all of the design services for the project from the ground to the roof. In this regard, the selected architect or architects will be responsible for submitting to the School Board completed design plans which are consistent with the educational requirements established by the School Board and State law. To do so, it will be necessary for the architect(s) to engage engineers as consultants to design mechanical, electrical, plumbing, fire protection, and other engineered systems consistent with the architectural design. However, the selected architect(s) are ultimately responsible for ensuring that the design plans meet the specifications of the School Board. The selected architect(s) will remain involved in the project throughout the construction phase as well in an administrative capacity, e.g., administering progress payments, monitoring contract compliance by the builder. The Project Information Packet referenced in the legal advertisement announcing the RAS included the following materials: the policies and summaries of procedure governing the School Board's acquisition of professional services (i.e., Sections 7.29 through 7.33 of the Policy Manual) along with a document summarizing that process; documents describing the "District prototypes" for new elementary and middle schools; a map showing the location of the proposed school sites; a document titled "Standardized Submittal Requirements" (hereafter "Submittal Requirements"); and a document titled "Professional Services Selection Committee Evaluation Criteria" (hereafter "Evaluation Criteria"). In compliance with the requirements of Section 7.30 of the Policy Manual, all of those materials were available to potential applicants on November 12, 2002, in conjunction with the publication of the RAS. The Submittal Requirements set forth the information that the applicant must submit as well as the formatting requirements for paper and electronic submittals. The submittals were required to include a separate summary sheet for each of the evaluation criteria (described below) and all information related to a criterion was to be on the summary sheet or on supplemental sheets immediately following the summary sheet for that criterion. The submittal was also required to include a separate "SF 254" form, which is a standard form that provides general information about the firm. The factors which will be used to evaluate the responses to the RAS and the weights associated with each factor are set forth in the Evaluation Criteria as follows: WEIGHT TOPIC DESCRIPTION 25 Points Project/Application Correlation Correlation of applicant's experience and capabilities to the unique requirements of the project. 25 Points SDHC Track Record Applicant's performance on prior projects with the District, including ability to meet project schedule and budget. Greater consideration will be given to more recent projects and projects of similar scope. 20 Points Firm's Resume Demonstrated capabilities of the firm, with consideration given to corporate philosophy, community involvement, credentials of senior/professional staff 15 Points Firm's Current Workload An evaluation of the applicant's capacity to undertake additional work, in light of its current workload. 10 Points MBE Participation Whether the firm is a certified minority business enterprise,[1] and the applicant's demonstrated commitment to increasing the successful participation of minority and women owned businesses. 5 Points Prior/Current Volume with SDHC Volume of recent work awarded the applicant by the District. Score is inverse to volume. Applicants are presumed to start with a score equal to half of the available points for each category involving "experience related considerations." Because there are 100 total points available, each applicant will start with a total of 50 points. The Selection Committee will adjust the applicant's score above or below that number based upon its review of the materials submitted by the applicant. There are no schedules, "rating tables," or "tally sheets" to guide the Selection Committee in allocating points in each of the categories. Instead, the Committee will use a normative method of evaluating the responses in each category rather than a criterion reference. Under the normative methodology, the Committee will stratify or rank-order the responses in each category and then assign points to each response based upon where it falls within that stratification or ordering. It is not entirely clear how the Committee will translate the rank-ordering into point additions or subtractions to the presumed 50 points that each respondent starts with. That determination is left to the Committee, but it will be uniformly applied by the Committee members to all responses. That approach is markedly different from and seemingly more complex than the approach suggested by Petitioner through its sample forms in Exhibit P8. Under Petitioner's approach (which was characterized by Respondent's witnesses as the criterion methodology), the score for each category would be based upon a pre-established rating system applied by the members of the Committee (e.g., awarding +10 points if the evaluator considered the response to be "outstanding" in the category, 0 points for "average," -10 points for "poor") or a pre-determined table (e.g., awarding 5 points for prior work between $0 and $25,000; 4 points for prior work between $25,001 and $50,000, etc.). It is not entirely clear what benefit there would be to Petitioner or other applicants by knowing in advance the methodology that the Committee intends to use to translate the rank-ordering into scores for each category. In this regard, the Evaluation Criteria define the weights that are associated with each category and, where appropriate, explain generally how those points will be allocated within the categories (e.g., score for "prior/current volume of work with SDHC" is inverse to volume, meaning that the more work the firm has with the District, the fewer points it will get in that category). The information that is provided in the RAS contains sufficient guidance to enable applicants to prepare and submit a response. Indeed, it is significant that Mr. Jackson testified that his firm could prepare a response based upon the information that was made available to potential respondents in connection with the RAS. The deadline for submitting a response to the RAS was November 22, 2002, at 4:00 p.m. The School Board received responses from 27 firms prior to the deadline. Petitioner did not submit a response to the RAS. Instead, on November 14, 2002, Petitioner filed a notice of protest, and on November 19, 2002, Petitioner filed a formal written protest directed to the specifications in the RAS. As a result of Petitioner's protest, the RAS was put "on hold." The responses received prior to the submittal deadline have not been referred to the evaluation committee and no other action has been taken in connection with the solicitation or contract award process because of Petitioner's protest. The record does not reflect whether the School Board has sought to move forward with the evaluation and contract award process notwithstanding Petitioner's protest as it is authorized to do by Section 120.57(3)(c), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Hillsborough County School Board issue a final order which dismisses Petitioner's formal written protest. DONE AND ENTERED this 3rd day of February, 2003, 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 3rd day of February, 2003.
The Issue Whether just cause exists for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Palm Beach County, Florida. At all times material to this case, Respondent was employed by the School Board as a reading/social studies teacher at Carver Middle School (“Carver”), a Title I public school in Palm Beach County, Florida. Respondent was initially hired by the School Board as a teacher in 1993. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the Palm Beach County Classroom Teachers Association. Kiwana Alexander-Prophete, the principal of Carver, was authorized to issue directives to her employees, including Respondent. The 2013-2014 School Year On April 24, 2014, Principal Alexander-Prophete held a conference with Respondent to address concerns regarding students’ grades because an overwhelming number of students were failing Respondent’s class. This conference occurred after report cards for the third nine-week grading period had been sent home to the parents of Respondent’s students. Out of 106 students, 72 students received an F grade; 17 students received a D grade; 11 students received a C grade; three students received a B grade; and one student received an A grade. Respondent failed to demonstrate that the students earned these grades; she failed to provide samples of students’ graded work; and she failed to notify parents of the students’ failing grades prior to issuance of the report cards. Principal Alexander-Prophete issued Respondent a conference memorandum on April 30, 2014, specifically directing Respondent to, among other things: Maintain a student portfolio which was established for all teachers at the beginning of the school year. Have each student write name on folder and then place all their tests, work, notes/letters home to parents in the folder. This would be the documentation used for parent conferences, progress reports and report card grades. Maintain a telephone log and maintain copies of letters sent home to parents. * * * Maintain a GradeQuick documenting a minimum of at least two grades per week. Respondent was advised in the April 30, 2014, conference memorandum that failure to follow the directives is insubordination, which could subject her to discipline, including termination. On May 12, 2014, Respondent received specific written directives regarding communications, grades, portfolios, and recordkeeping. These directives were specifically detailed to improve Respondent’s overall job performance and optimize the level of education to her students. The directives were specifically targeted to Respondent for her to correctly measure and track student growth, accurately maintain records of assignments, compute grades in a fair and understandable manner, and communicate effectively with students, staff, and parents. Specifically, Respondent was directed as follows with regard to student portfolios: Properly maintaining student portfolios is the strategic centerpiece of your improvement plan. Therefore, you are directed to maintain an up to date student portfolio for each student assigned to you. You are directed to have a folder for each student where any and all work will be saved. This folder will be known as the student’s portfolio. Any and all assignments that will be used in the calculation of the final report card grade will be memorialized in the students’ portfolios. At the end of each semester portfolios will be housed in a secure classroom location or an area to be designated by the school’s administration. Students will begin a new portfolio at the start of each semester. You are specifically directed to have: Students print their first and last names on folders on the outside of each folder. Students attach to the outside of the folders a teacher prepared rubric displaying how report grades will be calculated. As an example: Chapter Quizzes 15% Unit Exams 25% Final Exam 20% Projects and Presentations 15% Homework 15% Class Participation 10% Folders organized on classroom shelves by period and then divided by gender. Students pick up and return their folders to and from the designated area as they enter and exit the classroom each day. All documents in the folder include the student’s name, period, date, and the category of the assignment (i.e. chapter quiz, hw). All student work, assessments, exams, quizzes, homework graded, entered into GradeQuick into the appropriate assessment category, returned to students, and placed into their portfolios no more than three (3) student school days from the day the student submitted it to you. Documents in the student portfolios match the grades registered by you in GradeQuick. Portfolios available for students, parents, and administrative personnel on the day of the request. With regard to student grades, the directives specifically advised Respondent of the importance of grading students in “quantifiable, definitive, and well-documented” methods. Respondent was specifically directed to: Record daily each student’s classroom participation in GradeQuick using the 1-4 rubric similar to the conduct grade. For an absent student do not record a grade. Use the average of the daily grades to determine the classroom participation grade for the semester. Enter no less than two (2) grades into GradeQuick each week, exclusive of the daily class participation grade. Provide each student with a hardcopy rubric explaining how grades will be determined for a student project or presentation at the time the assignment is given. Have at least one higher order question (Bloom’s Taxonomy) requiring students to respond in a short essay format (5-12 sentences) for all unit and final exams. Examples: Compare & Contrast . . ., or If you were , would you have made the same decision to ? Why? Grade all quizzes, tests, exams, projects, presentations, and any other similar type assessment as percentage, not a letter grade. Write short praise comments or words of encouragement on 50% of each student’s homework assignments, quizzes, tests, exams. Examples: Way to go!, You’re improving!, I know you can do better [2/] In order to improve Respondent’s communication and recordkeeping with parents, Respondent was also specifically directed to: Maintain a parent contact log book with first and last names of mothers, fathers, and legal guardians with their telephone numbers (home, work, and cell), and email address for each student assigned to you. The log will be maintained by instructional periods and alphabetized by the last name of students. Allow for one complete page for each parent/student entry so that as the school year progresses there will be ample room for notes resulting from your parent contacts. You may use computer software rather paper/pen to maintain the log. Write the date, the method of communication (i.e. in-person conference, phone, email), the name of the person you contacted, the salient points made by you and the parent(s) for each parent contact. Should a parent be unavailable, record the date/time and method of attempted contact. Make verbal contact (phone or in person) with at least one parent of the each student assigned to you within fifteen (15) days of the first day of a new school year. Notify parents whose child has a grade average of a D or F, no less than fifteen (15) days prior to the conclusion of a semester. Notify parents whose child has a less than satisfactory behavior grade no less than twenty (20) days prior to the conclusion of a semester. Have an in-person parent-teacher-student conference for any students experiencing severe behavioral issues or repeated patterns of unacceptable conduct within ten (10) days of you determining that such a problem exists. Have an in-person parent-teacher-student conference for any students receiving a failing semester grade within ten (10) days of the issuance of the report card. Not to contact parents when you are scheduled to teach students. Have your parent contact log available to the school’s administration on the day of request. The May 12, 2014, directives were effective immediately, as well as for the 2014-2015 school year. Respondent was specifically advised that failure to adhere to the directives will constitute insubordination and subject her to disciplinary action, including termination. Respondent refused to sign and acknowledge her receipt of these directives. However, Respondent received the written directives on May 12, 2014. 2014-2015 School Year On August 21, 2014, Respondent attended a pre-determination meeting with Principal Alexander-Prophete and Robert Pinkos, the School Board’s human resources manager. Respondent refused to participate in the meeting. On August 21, 2014, Principal Alexander-Prophete delivered to Respondent a memorandum of the meeting, reminding Respondent of the May 12, 2014, directives. Respondent was specifically directed to deliver to Principal Alexander-Prophete’s office her current parent contact log, student portfolios, and records of grades by the close of the school day on September 4, 2014. Respondent was further advised that if she needed assistance delivering the material to Principal Alexander-Prophete’s office, she should contact Principal Alexander-Prophete by the close of the school day on September 3, 2014, so that the principal can make the necessary arrangements. Again, Respondent refused to sign and acknowledge her receipt of this memorandum. However, Respondent received the memorandum on August 21, 2014. On September 5, 2014, Respondent attended a pre-determination meeting with Principal Alexander-Prophete and Mr. Pinkos. During the meeting, Principal Alexander-Prophete found Respondent was insubordinate for failing to adhere to prior directives by failing to maintain student portfolios, recordkeeping, and grades as directed. Again, Respondent refused to participate in the meeting and failed to sign and acknowledge receipt of the September 9, 2014, memorandum memorializing the meeting. However, Respondent received the September 9, 2014, memorandum. On September 12, 2014, Principal Alexander-Prophete issued to Respondent a written notation of a verbal reprimand for neglect of duty and insubordination for failing to adhere to directives regarding the following: insufficient work in student portfolios; no submission of lesson plans for the 2014-2015 school year; multiple class periods with no recorded grades; and insufficient contact with parents. Again, Respondent refused to sign and acknowledge receipt of the September 12, 2014, written notation of a verbal reprimand. However, Respondent received the written notation of a verbal reprimand on September 12, 2014. On September 18, 2014, Principal Alexander-Prophete specifically directed that Respondent meet with her on Tuesday, September 23, 2014, at 9:45 a.m., in the principal’s office and to bring with her to the meeting the following: “student portfolios, telephone logs of parent contact, and your GradeQuick grade print out for all class periods.” Again, Respondent refused to sign and acknowledge receipt of the September 18, 2014, memorandum containing this directive. However, Respondent received the September 18, 2014, memorandum. Respondent did not provide any records for review on September 23, 2014, as directed. On October 3, 2014, Respondent attended a pre-determination meeting with Principal Alexander-Prophete and Mr. Pinkos. During this meeting, Respondent was found to be grossly insubordinate and negligent for her repeated failure to adhere to prior administrative directives by failing to provide a parent contact log, student portfolios, and grades as directed. On October 14, 2014, Principal Alexander-Prophete issued to Respondent a written reprimand for dereliction of duty and gross insubordination for failing to have her student portfolios, grades, and parent contact log available for administrative review on September 23, 2014, as directed. Notably, the documents reviewed by Principal Alexander-Prophete during the October 3, 2014, meeting demonstrated that Respondent’s student portfolios did not contain any student work, and there was no rubric to show how grades would be determined. Grades in GradeQuick had not been entered on an ongoing basis, and grades that had only recently been entered in GradeQuick could not be authenticated because there were no assessments or student work in the portfolios. There was no daily record of student conduct grades, and the parent log was noncompliant. Respondent was advised in the written reprimand that failure to adhere to the directives would result in further disciplinary action, including up to termination. Again, Respondent refused to sign and acknowledge receipt of the written reprimand. However, Respondent received the written reprimand on October 14, 2014. On October 24, 2014, Carissa Battle, a vice-principal at Carver, sent an email to Respondent reminding Respondent that her lesson plans were due October 7, 2014, and that this was the “second and final notice that your plans have not been submitted for Administrative Review.” Respondent was directed to submit her lesson plans by 4:10 p.m., on October 27, 2014. On October 27, 2014, Principal Alexander-Prophete sent Respondent a memorandum directing Respondent to meet with her on Monday, November 3, 2014, at 10:30 a.m., in the principal’s conference room. The purpose of the meeting was to review Respondent’s recordkeeping and her adherence to the prior directives. In the memorandum, Respondent was directed to bring with her the following: student portfolios, telephone logs of parent contact, and her GradeQuick grade print out for all class periods. Respondent was informed that failure to attend this meeting will be considered insubordination and may result in disciplinary action. Again, Respondent refused to sign and acknowledge receipt of the memorandum. However, Respondent received the memorandum. Respondent failed to attend the meeting scheduled for Monday, November 3, 2014, at 10:30 a.m., and she failed to have the requested records available in the principal’s conference room as directed. When Respondent failed to attend the meeting scheduled for 10:30 a.m., Principal Alexander-Prophete and Mr. Pinkos went to Respondent’s classroom at approximately 11:00 a.m., during Respondent’s scheduled break from teaching. At that time, Principal Alexander-Prophete and Mr. Pinkos reviewed Respondent’s student portfolios, lesson plans, grades, and parent contact logs. There were no students in the classroom. There was insufficient work in Respondent’s student portfolios. The portfolios were folders with student names written on the outside. The portfolios were divided by instructional periods. In each of the first-period portfolios, there were two papers: “a T/F Chapter 1 Quiz answer sheet on notebook paper dated September 8, 2014, and a Section 1 Quiz [dated] September 10, 2014.” There were no other documents in the first-period student portfolios. An examination of the student portfolios for Respondent’s other classes showed that they were all empty. No lesson plans had been received from Respondent for any period of time during the 2014-2015 school year. Respondent pointed to an envelope and provided Mr. Pinkos with a document inside the envelope titled “Carver Middle School [-] School wide Positive Behavior Matrix/Single School Culture Lesson Plans 2014-2015 School Year.” Respondent indicated that this document constitutes her lesson plans. However, this document is not a teacher’s lesson plan, but rather a published lesson guide not prepared by a teacher. The collective bargaining agreement specifies a teacher’s lesson plan format. Respondent failed to produce any lesson plans for the 2014-2015 school year, and she had no lesson plans for the 2014-2015 school year. There was insufficient contact with parents. Respondent produced the identical parent contact log that Principal Alexander-Prophete previously reviewed. There were no new entries on the log provided by Respondent on November 3, 2015. Principal Alexander-Prophete told Respondent she would continue the discussion of Respondent’s recordkeeping in her office. However, Respondent refused to continue the meeting in the principal’s office. Principal Alexander-Prophete returned to her office and reviewed Respondent’s student grades from GradeQuick. There were no recorded grades for multiple class periods. Moreover, a review of grades posted for certain class periods revealed an insufficient number of grades for Respondent’s students. At this point in the second marking period, all students should have received a minimum of four grades recorded as teachers are required to record two grades per week per student. Respondent failed to register any grades for most of her students, and for the few scant grades that she recorded, they could not be supported. Teachers were directed by the school’s administration to have their grades submitted by October 20, 2014, for the first grading period report card. Respondent failed to submit any grades for her students, and after attempts to have her do so, the school’s administration formulated grades for Respondent’s students that were posted on the first grading period report card. The persuasive and credible evidence adduced at hearing clearly and convincingly establishes that Respondent is guilty of misconduct in office in violation of Florida Administrative Code Rule 6A-5.056(2). Maintaining student portfolios, submitting lesson plans, recording grades, and maintaining sufficient contact with parents are essential functions of Respondent’s job as a teacher. By failing to comply with the specific directives regarding maintaining student portfolios, submitting lesson plans, recording grades, and maintaining sufficient contact with parents, Respondent violated Florida Administrative Code Rule 6A-10.081 and School Board Policy 0.01 2.c. by engaging in conduct which failed to make reasonable effort to protect her students from conditions harmful to learning. Respondent violated rules 6A-5.056(2)(d) and (e) by engaging in conduct which disrupted the students’ learning environment and reduced Respondent’s ability to effectively perform duties. Respondent violated School Board Policy 1.013(1) by failing to carry out her assigned duties in accordance with state rules and school board policy. Respondent violated School Board Policy 1.013(4) by failing in her recordkeeping. Respondent violated School Board Policy 2.34 by failing to faithfully and accurately keep the records she was specifically directed to keep. Finally, Respondent violated School Board Policy 3.10(6) by failing to carry out her responsibilities in accordance with reasonable directives from her supervisor that did not pose an immediate serious hazard to health and safety or clearly violate established law or policy. The persuasive and credible evidence adduced at hearing clearly and convincingly establishes that Respondent is guilty of incompetence in violation of rule 6A-5.056(3). By failing to comply with the specific directives identified above, Respondent failed to discharge her required duties as a teacher as a result of inefficiency. Respondent was inefficient by failing to perform duties prescribed by law, and by failing to communicate appropriately with and relate to students, administrators, or parents. The persuasive and credible evidence adduced at hearing clearly and convincingly establishes that Respondent is guilty of gross insubordination in violation of rule 6A-5.056(4) by intentionally refusing to obey a direct order, reasonable in nature, and given by and with proper authority. By failing to comply with the specific directives detailed above, Respondent intentionally refused a direct order, reasonable in nature, and given by and with proper authority. The persuasive and credible evidence adduced at hearing clearly and convincingly establishes that Respondent is guilty of willful neglect of duty in violation of rule 6A-5.056(5) by intentionally refusing to carry out required duties. By failing to comply with the specific directives detailed above, Respondent intentionally refused to carry out required duties. Respondent’s failure to comply with the specific directives detailed above was clearly flagrant and purposeful. Respondent was capable of performing each of the required tasks specified in the directives, yet she intentionally chose to ignore them. Respondent refused to acknowledge her receipt of directives and was warned on multiple occasions that her failure to comply with the directives could result in disciplinary action, including her termination. Rather than adhere to the directives, however, Respondent made a conscious decision to ignore them and not comply.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order upholding the suspension and terminating Respondent’s employment. DONE AND ENTERED this 31st day of December, 2015, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 2015.
The Issue The issues in dispute are those associated with the invitation to bid in Project No. 565 by the Respondent as responded to by Petitioner and Intervenor. Among the specific questions to be answered are those concerning Petitioner's allegation that the Respondent allowed the Intervenor to materially alter its bid response to clarify the line item associated with tear down and return delivery for the relocatable classrooms that were being leased under the terms of the bid invitation and that alteration was allowed for the provision of canopies or awnings associated with the entrances to the relocatable classrooms. Questions are raised, first whether the Intervenor's bid response is in compliance with the provisions of Chapter 6A-2, Florida Administrative Code and, second whether the bid response of the Intervenor provides sufficient detail to allow the Respondent to understand the nature of the item, in this instance, the relocatable classroom, which the Intervenor proposed to provide in response to the invitation to bid. Finally, the general question is raised whether the Petitioner or Intervenor is the lowest responsible qualified bidder.
Findings Of Fact On April 28, 1989, Respondent sent out an invitation to bid in Project No. 565. It sought responses from a number of vendors and asked that those vendors on or before July 1, 1989, be prepared to deliver 49 portable classroom units. The arrangement which Respondent contemplated in the invitation was rental of the portable classrooms under a lease for a period of one year. It was intended that the portable classroom units would be delivered to various locations throughout Lake County, Florida. The bid opening was to occur on May 8, 1989, at 2:30 p.m. The request for bids included a lead sheet and in the second paragraph of the instructions on that lead sheet it was stated: All terms and conditions below are a part of this bid request and no bids will be accepted unless all conditions have been complied with. Rights are reserved to reject any and all bids and to waive all technicalities. It was further stated: DIRECTIONS FOR SUBMITTING BIDS ARE AS FOLLOWS: * * * 5. Samples must be submitted with bid where required. On other items descriptive literature with complete manufacturer's specifications in sufficient detail to indicate clearly the item bidder proposes to furnish must accompany the bid. NO BID will be considered without this data. Equipment offered as equivalent to the specific brand must be equivalent in quality of materials, workmanship, effect and corresponding in function and performance When the requirements set out in the preceding paragraph to the Recommended Order are read in the context of all other requirements set forth in the bid invitation, they are found to be consistent with those additional requirements. On the second page of the instructions for the Invitation to Project No. 565 was found a section entitled "Lease/Rental of Portable Classrooms" which stated: The Lake County School Board is requesting bids for Lease/Rental of Portable Classroom units meeting 6A-2 requirements at various locations. Units must meet Florida Code, SBCC Code and 6A-2 Department of Education code for structures of this type. We are requesting prices for 49 units for one-year rental, to be set-up at various locations. Steps, ramps, electrical, water or sewer hooks are not required. This work will be done in- house by Lake County School Board staff. A minimum of three 4' x 8' melaminc marker boards, two 4' x 4' tackboards, one 8 lb. fire extinguisher (2A40 BC) and junction box with stub-out for F/A and pullbox must be installed in each unit. Other provisions within the bid invitation describe the nature of the bid performance security that was incumbent upon each bidder, the need for insurance, nature of the insurance coverage expected and information related to lease provisions, purchase provisions, parts warranties and prices. The bid invitation pointed out that each bid packet furnished by the vendors should provide proof of insurance, a sample lease/rental contract, brochures and specifications of construction materials and contents and a 5 percent bid bond in a separate sealed envelope attached to the outside of the bid. Four vendors offered their responses to this invitation, among them Petitioner and Intervenor. The additional bidders were Diamond Engineered Space and Williams Mobile Offices. The bid opening occurred on May 8, 1989, as advertised. That bid opening was under the auspices, Provisions 6.05(7) and 6.87, Lake County School Board Policies Manual, which describe school construction bid procedures and contemplate awarding contracts to the lowest responsible qualified bidder meeting specifications with regard for the quality of the product being offered by the bidder, its suitability for the needs of the school system, delivery terms, service and past performance of the vendor. Some consideration is given to local vendors, under the provisions, but this has no role to play in this dispute. Rule 6A-2.016, Florida Administrative Code, also speaks to the procedures to be followed by the Respondent in this bid invitation process. The bids were opened, announced and tabulated. It was revealed, in turn that Diamond Engineered Space's price quote was $299,292.92; Petitioner's was $246,563; Intervenor's was $236,166 and Williams Mobile Offices' was $367,420. All vendors had made a timely response to the invitation to bid. In the course of the examination of the bid materials, the price sheet of the Intervenor came into question. This price sheet may be found as part of the Petitioner's Exhibit No. 1 admitted into evidence. In particular, item 3 on the price sheet was debated. In that section, the Intervenor's response stated: 4(b) Tear Down, and Return Delivery $350.00 (50 mile average at $1.50 per side) 4(c) Other ($200.00 Mat'l & Labor)$ NONE Given the parenthetical remarks found within the response, Norma Hale who was the Purchasing Agent for the School Board and in charge of the bid opening asked of Mike Connolly, who was attending the bid opening for the Intervenor, whether the quoted price was a firm price. Herman Kicklighter, the Director of Facilities and Maintenance who attended the bid opening for Respondent also made inquiry concerning whether the tear down charge was a variable or fixed price. These questions were raised against a background circumstance in which some sites may have been further away than is contemplated by the 50 mile average set out in the parenthesis. It was not the intention of the Intervenor to leave the parenthetical information on the bid response and Connolly was caught off guard by this revelation. He had not prepared the bid submission by the Intervenor. Nonetheless, he informed the persons assembled that the price quotation of $350 was a firm price. This information was revealed after the Petitioner's bid had been opened. After some discussion, school officials at the bid opening were convinced that the $350 price was a firm price. Having considered the evidence, the $350 price is found to be a firm price. Moreover, this finding is made recognizing that the Intervenor was never allowed to remove the parenthetical remark from the bid response. That removal would have constituted an alteration of the bid response. If one examines the bid response and multiplies the 50 mile average times $1.50 per side, the amount is $150 plus $200 for material and labor for a total of $350 as reflected in the cost per unit designation. This is not considered to be a variable price quotation. Another topic that was brought up during the course of the bid opening concerned the question of whether the portable classroom units that were to be supplied by Intervenor included awnings or canopies over the door entrances. Petitioner was and is of the opinion that the awnings and canopies are required. It is not clear from a review of Petitioner's Exhibit No. 4 admitted into evidence, which is the Petitioner's bid material, whether Petitioner intended to supply awnings or not. It is clear that the bid material of the Intervenor did not include awnings. Kicklighter asked Connolly if the Intervenor's bid included awnings and the essence of Connolly's response would indicate that the bids did not include awnings. Connolly was allowed to leave the room to make a telephone call to his office to further inquire concerning the response of the Intervenor as it related to awnings. While he was gone, the School Board checked with the Department of Education in Tallahassee on the topic of whether Chapter 6A-2, Florida Administrative Code required awnings in this application. In a conversation with William Moncreath, a certified architect with the Department of Education, Kicklighter was lead to believe that awnings were not needed. Connolly then made this known to the persons in the bid room. Connolly was not present at that time. Connolly then returned and told Kicklighter that the Intervenor would furnish awnings. This comment was met by a remark by Mr. Kicklighter to the effect that it looked like that the Intervenor and the School Board would be doing business. To allow the Intervenor to alter its bid response to include awnings that were not shown in the bid response, would be a material alteration if awnings were required. They are not. Therefore, this discussion concerning the awnings is a moot point. On May 9, 1989, the School Board determined to award the contract to the Intervenor. This met with a timely notice of protest from the Petitioner on May 12, 1989, and in a Formal Written Protest on May 22, 1989. Having been unable to resolve the matter amicably, the case was forwarded to the Division of Administrative Hearings for resolution of the dispute. Notwithstanding the pendency of the case before the Division of Administrative Hearings, based upon a claim of emergency, the lease agreement was entered into between the Respondent and Intervenor on June 15, 1989. In addition to the assertions by the Petitioner concerning whether the quotation for tear down and return delivery was a firm price and whether awnings are required, Petitioner calls into question whether the Intervenor has complied with paragraph 5 on the lead page concerning directions for submitting bids and the third paragraph on the next to the last page of the bid invitation concerning the things that the bid packet must include. Petitioner also questions whether Intervenor has adequately established that it will meet applicable requirements of Chapter 6A-2, Florida Administrative Code. Contrary to the opinion held by the Respondent and Intervenor, paragraph 5 on the lead page to the invitation to bid is a requirement that must be complied with. It is not an item to be ignored, nor it is considered to be superceded by any of the more specific references to requirements that are announced in the subsequent pages to the invitation to bid. The bidders had to make proof of insurance and to offer a sample lease/rental contract and provide a 5 percent bid bond. All bidders complied with those requirements. Petitioner complied with all other requirements as announced in the bid invitation as well. The question is whether Intervenor as a general matter has provided descriptive literature with the complete manufacturer's specifications in sufficient detail to clearly point out what item the bidder is proposing to furnish and whether indeed the item does comply. This is also described as brochures and specifications of construction materials and contents. Additional items that must be provided by Intervenor are those contemplated under Chapter 6A-2, Florida Administrative Code associated with relocatable classroom space and related construction codes made mention in the instructions to bidders under that portion referred to as "Lease/Rental of Portable Classrooms" and the last paragraph of that set of instructions associated with melaminc markerboards. Instead of relying upon clearly delineated information within the response of the Intervenor by way of literature with complete manufacturer's specifications to merely show the nature of the product or item that the Intervenor was proposing to furnish, Respondent, and in particular its principal advisor, Mr. Kicklighter, chose to rely upon certain self-serving statements made by the Intervenor in the course of its bid materials. This refers to an attachment to the sample lease agreement which is a fourth page in that set of materials stating: FLORIDA CODED BUILDING; Built to Comply with the Florida Department of Education's 6" A" .2 Specifications. With prints certified as a Classroom Building which can be located anywhere in Florida. (Zoning permitting). To Kicklighter this means Intervenor'S promises to build the classroom space in accordance with Chapter 6A-2, Florida Administrative Code and to provide certified prints and that provision would overcome any infirmities or paucity of information about the product in his mind. Kicklighter took further solace from correspondence of October 17, 1988, from David Toner, Director of Facilities Planning/Operation of St. Johns County, school Board in Florida which praises the Intervenor's performance in the lease of 28 relocatable classrooms in that county and states that plans and specifications were sent to Tallahassee for approval and installation met Chapter 6A-2, Florida Administrative Code. This is hearsay information and does not establish anything relevant in the matter of whether Intervenor will do as well for the Respondent as it appears to have done for St. Johns County School Board, if Intervenor doesn't first show that it has complied with this invitation to bid. It has not. It is not so much that Kicklighter attached no significance to the substantive information provided by the Intervenor in its response to the invitation, it is the fact that a clear understanding of the impression of Kicklighter concerning that substantiative information is overshadowed by his reliance upon the promise to provide certified prints and the remarks of his counterpart in the St. Johns County School Board as a principal reason for believing that the Intervenor's response was sufficient. That reliance was ill advised. It would be different if certified plans had been provided. They were not. The promise to provide them is outside the bid experience and is unacceptable as a means of compliance with the bid invitation. Looking at what was provided, there is a single sheet entitled Proposed Classroom which gives basic dimensions and information about frame and floor, walls, windows and doors, exterior covering, roof, electrical, A/C and heat, and restrooms. Within this document are found references to a 2600 rpm fan which could well mean 2600 cfm fan, the latter of which would meet requirements and the former which would not. Correction of this item would not be a material alteration. Likewise, correction of the reference of 1" x 4" top plate to 2" x 4" top plate to meet specifications would not be a material correction. in that this 1" x 4" reference as opposed to 2" x 4" reference could well be a typographical error. Within the bid documents by Intervenor there is a sheet referred to as Typical H.C. Toilet Rooms. Toilet Room A relating to Florida and Toilet Room B relating to Georgia. The outside dimensions of the Florida toilet room do not coincide with the Proposed Classroom sheet that has been mentioned. While the outside dimensions of the Georgia toilet room on this document appears the same as in the Proposed Classroom sheet that has been referred to, the configuration in the proposed classroom sheet and that of the sheet related to toilet rooms most recently under discussion are different. Under the circumstances, it is difficult to know what the Intervenor intends by way of toilet room facilities and the response is inadequate to meet the requirements of the bid invitation. This is a material deviation. There are some partial sheets within the bid materials which appear to be the first half of the Classroom Sheet that has been referred to and being duplicates of that information no particular significance is seen in those matters. There is material referred to U.S.G Acoustical Finish. There are further materials related to interior fixture finishes. There is a brochure with pictures showing the outside of a building and the interior of a portable classroom building. This document does not give any specific information as to types of materials, dimensions, etc. There is a document of May 5, 1989, from Descom directed to Mr. Connolly promising to make available replacement parts for 49 classrooms if Descom manufacturers them. There is information provided on the fourth page which is the attachment to the Lease Agreement which makes reference to frames being provided "per code." This page gives certain dimensions and design information related to the floors, walls and petitions and roofs. There is another two page document that shows miscellaneous equipment such as exit signs, melaminc marker boards, tack boards, emergency light with battery and backup and fire extinguisher. These items do not show manufacturer's name. There are references to various provisions within Chapter 6A-2, Florida Administrative Code where Intervenor claims that these items will correspond to. There are comments made on this page about the foundation of the portable classroom that are unclear. On the second page of these materials are found references to plumbing to include plumbing, related to the bathroom dealing with vinyl covered gypsum wall covering, the commode, wall mounted lavoratory, 90 cfm ceiling vent fan and mirrors and accessories. Again, the manufacturer's names are not given. A reference is made under the ceiling vent fan to a rule provision of Chapter 6A-2, Florida Administrative Code. There is reference under electric to two 100 amp load centers with mains and 12/2 copper romex. There is a reference there to 15-440 fluorescent light fixtures. Again, there is the reference to the 2600 rpm through the wall ventilation fan and 2 adequate wall receptacles. HVAC references a three ton Bard wall mount with heat strips and a ceiling supply duct system with STD return air system and a timer for the air conditioner. There is a reference to exterior materials, windows and doors and insulation factors. Again, some of these items under the bathroom, electric and HVAC reference sections within Chapter 6A-2, Florida Administrative Code. Other than the fluorescent light fixtures and HVAC Bard unit, manufacturers names cannot be discerned from this information submitted. The bid invitation calls for buildings of 24' x 36'. The response by Intervenor provides for a building which is 23' x 36', a material deviation from the requirements of the specifications. The light fixture is a Metalux Manufacturing Company surface mounted fixture of four forty watt bulbs. According to Gareuth Eich, an architectural expert whose opinion testimony is accepted, this light fixture does not comply with Rule 6A-2.064, Florida Administrative Code. This is a material deviation. The statement of plans do not show compliance with Rule 6A-2.059, Florida Administrative Code, as to exterior lighting. This is a material deviation from the specifications. The electrical specifications information provided by the Intervenor in the Proposed Classroom sheet shows two 100 amp panels that are separated, whereas specifications shown on the two-page printed informational sheet under electric speak in terms of a 100 amp load center with main disconnect. Regardless, requirements of Lake County are such that a main disconnect panel is required on the exterior of the portable classroom, the installation of which would be the responsibility of the school board. Thus, if two panels were employed inside they would become subpanels and not in conflict with the national electric code as spoken to in Rule 6A-2.065, Florida Administrative Code. On the other hand, it is not clear which alternative in panel design and service Intervenor intends to offer and this is a material deviation from the bid requirements. The information provided concerning the nature of the foundation for the portable classroom units is inadequate. This is a material defect in the response to the bid specifications. Gareuth Eich, Hugh Stump, President of Southern Structure, a company that manufactures portable classroom units and a person who is familiar with bidding procedures associated with those units and Paul Crum, an architect testified on behalf of the Respondent. All questioned the quality of information submitted by the Intervenor in terms of specificity, to meet paragraph 5 on page one of the invitation to bid and particulars that relate to certain requirements of Chapter 6A-2, Florida Administrative Code to this bid invitation. Having considered the remarks and the testimony of others and the exhibits, the Intervenor's response cannot be seen as providing manufacturer's specifications in the necessary detail to indicate clearly the item that bidder proposes to furnish as called for in paragraph 5 of the lead page of the invitation to bid. The response has also failed to meet certain provisions of Chapter 6A-2, Florida Administrative Code in the manner described. The quoted size of the portable building is too small in overall dimension. These are material shortcomings sufficient to cause the rejection of the Intervenor's bid response. Therefore, the Petitioner is in fact the lowest responsible bidder. Although Respondent and Intervenor have contracted for the delivery of the portable classroom units and they are located at the various sites within Lake County, Florida called for in the contract, Petitioner is theoretically prepared to provide classroom units in accordance with the requirements of the specifications.
Recommendation Under authority of Section 120.57(1), Florida Statutes, a formal hearing was held in this case on July 10-11, 1989 in Tavares, Florida. Charles C. Adams was the Hearing Officer.
The Issue Whether Department of Transportation acted fraudulently, arbitrarily, capriciously, illegally, or dishonestly in issuing its intent to award RFP-DOT- 91/92-9012 bid to Trauner Consulting Services.
Findings Of Fact Public notice that DOT was seeking competitive bids was given, and DOT prepared a document entitled: Request for Proposal, which set forth in detail all of DOT's requirements. The purpose of the RFP was to inform all potential bidders of the minimum requirements for submitting a responsive bid, and the specific criteria by which the bids would be evaluated. Specific areas of importance to Respondent were as follows: All proposals were to be submitted in two parts; the Technical Proposal and the Cost Proposal. The Technical Proposal was to be divided into an Executive Summary, Proposer's Management Plan and Proposer's Technical Plan. The price proposal was to be filed separately. The RFP requested written proposals from qualified firms to develop and provide training on highway and bridge construction scheduling use as it pertains to Department of Transportation Construction Engineers. Proposals for RFP-DOT-91/92-9012 (hereinafter "RFP"), were received and opened by FDOT on or about December 14, 1992. Eleven companies submitted proposals. The technical portions of the proposals were evaluated by a three (3) person committee comprised of Gordon Burleson, Keith Davis and John Shriner, all FDOT employees. Gordon Burleson is the Engineer of Construction Training for FDOT. He administers the training for FDOT engineers and engineer technicians who work in FDOT's Construction Bureau. John Shriner is the State Construction Scheduling Engineer for FDOT. Keith Davis is the District 7, Construction Scheduling Engineer and Construction Training Engineer for FDOT. The Committee members evaluated the proposals individually then met as a group. The Committee established no formal, uniform evaluation criteria to be used by all committee members. The price proposals were not revealed to the Committee members until after the proposals were technically evaluated and scored. The price proposals were reviewed separately by Charles Johnson of the Contractual Services Office, Department of Transportation. The Committee evaluated the proposals based on the general criteria contained in the RFP. The RFP listed the criteria for evaluation to include: Technical Proposal Technical evaluation is the process of reviewing the Proposer's Executive Summary, Management Plan and Technical Plan for understanding of project qualifications, technical approach and capabilities, to assure a quality project. Price Proposal Price analysis is conducted by comparison of price quotations submitted. The RFP established a point system for scoring proposals. Proposer's management and technical plans were allotted up to 40 points each, 80 percent of the total score. The price proposed was worth up to 20 points, or 20 percent of the total score. Petitioner's proposal was given a total score of 90 points out of a possible 100. Trauner's proposal was given a total score of 92.04 points out of a possible 100. Petitioner's was ranked highest for price proposal, and received a total of 20 points for its proposed price of $18,060. Trauner's proposed price was $24,500, the next lowest after Petitioner and received 14.74 points. The technical portion of Trauner's proposal was given a total of 77.3 points, 38 for its Management Plan and 39.3 for its Technical Plan. The technical portion of Petitioner's proposal was given a total of 70 points, 36.7 for its Management Plan and 33.3 for its Technical Plan. Each plan was reviewed separately by the three Committee members, The individual, pre-averaged scores vary with committee member, Keith Davis' score varying the most from the others. The Committee members did not discuss the proposals until after they had individually reviewed and scored them. The Committee members had discussed the criteria prior to receiving and evaluating the proposals. There was insufficient evidence to show that Committee members scores were determined by fraud, or were arbitrary, capricious, illegal, or dishonest.
Recommendation Based on the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that Respondent, Department of Transportation enter a Final Order dismissing the protest filed herein by Petitioner, Systems/Software/Solutions and awarding RFP-DOT-91/92-9012 to Trauner Consulting Services. DONE and ENTERED this 12th day of March, 1992, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1992. APPENDIX Respondent's Proposed Findings of Fact: Accepted in substance: paragraphs - 1,2,3,4,5,6,7,8, 9,10,11,12,13,14,15,16,17,18,19,20,21 Petitioner's Proposed Findings of Fact: Accepted in substance: paragraphs - 1,5,11(in part) Rejected as not supported by the greater weight of evidence or irrelevant: paragraphs 2,3,4,6,7,8,9,10,11(in part),12 COPIES FURNISHED: Donald F. Louser, Qualified Representative Systems/Software/Solutions 657 Sabal Lake Dr, #101 Longwood, Florida 32779 Susan P. Stephens, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation Attn: Eleanor F. Turner, MS-58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issue in this bid protest matter is whether the decision of Respondent, Sarasota County School Board, to rank Intervenor, Willis A. Smith Construction, Inc., as the top construction management firm with which to negotiate services for the construction of the Sarasota County Technical Institute South Campus (North Port) ahead of Petitioner, A.D. Morgan Corporation, was contrary to its governing statutes, rules or policies, or the solicitation specifications.
Findings Of Fact Respondent, School Board, operates the public school system established for the School District of Sarasota County, Florida, pursuant to section 1001.30, Florida Statutes. The School Board is an authorized governmental entity allowed to contract for construction management services using the competitive negotiation process set forth in section 287.055, Florida Statutes. See §§ 255.103 and 1013.45, Fla. Stat. The School Board consists of five elected members. The School Board members include Chair Frank Kovach, Vice-Chair Shirley Brown, Jane Goodwin, Bridget Ziegler, and Caroline Zucker. The Superintendent for the Sarasota County School District is Lori White. Superintendent White has served in her position since 2008. Superintendent White works for and reports directly to the School Board. Scott Lempe is her deputy superintendent. Petitioner is a construction management firm. Rebecca Smith, a certified general contractor, is Petitioner’s president and sole owner. Willis Smith is also a construction management firm. David Sessions, a certified general contractor and construction financial officer, is the majority owner and president of Willis Smith. On January 9, 2015, the School Board placed a legal advertisement for construction management services. The School Board sought to contract with a qualified construction management firm to provide construction management services for a building project located on the STC-South Campus. The advertisement provided, in pertinent part: THE SCHOOL BOARD OF SARASOTA COUNTY, FLORIDA, will select a qualified construction management firm pursuant to Section 287.055, Florida Statutes, and School Board Policy #7.71, to provide construction management services for SARASOTA COUNTY TECHNICAL INSTITUTE SOUTH CAMPUS (NORTH PORT) project. The STC-South Campus project involved the construction of a facility that would include approximately 20,000 square feet of classroom space and 20,000 square feet of a shared media center/library, as well as associated site improvements within the City of North Port. The building could be expanded to 65,000 square feet. The preliminary project budget was $15 million dollars. Interested applicants were instructed to attend a pre- application meeting on January 14, 2015. Applications for the STC-South Campus project were due on January 29, 2015. The STC-South Campus project contained several unique aspects. The School Board desired the STC-South Campus facility to appear as an extension of Suncoast Technical College’s main campus located in North Sarasota County (STC-North Campus). On several occasions throughout the application process, School Board staff specifically indicated that the STC-South Campus building should reflect the “brand” created at STC-North Campus. The School Board desired to instill continuity between the two campus locations. The branding concept between the two campus sites included such details as to how the facility classrooms were to interact together with the building’s fixtures, finishes, and flow, as well as the style of classroom room numbers. As discussed in more detail below, Willis Smith served as construction manager for the STC-North Campus project. Policy 7.71, Selection Policy for Professional Construction Related Services, and section 287.055, the Florida Consultants’ Competitive Negotiations Act or “CCNA”, governed the School Board’s procurement process for the STC-South Campus project. Policy 7.71 established how the School Board was to evaluate, select, negotiate, and contract with a construction management firm. In accordance with Policy 7.71, Section I, the School Board created the PSSC consisting of five School Board employees. The PSSC was tasked to conduct the initial evaluation, interviews, scoring, and ranking of prospective vendors for the STC-South Campus project. The PSSC’s primary purpose was to create a ranking of the top three applicants for the School Board’s ultimate consideration. In accordance with Policy 7.71, the PSSC conducted its review in a two-phase process. In the first phase, the PSSC reviewed and scored the written applications and prepared a short-list of the three highest scoring vendors. In the second phase, the PSSC interviewed the three short-listed vendors. The PSSC then ranked the top three vendors. Following the PSSC’s ranking, Policy 7.71 instructed the PSSC to submit its ranking to the School Board Superintendent. The Superintendent, in turn, would forward the PSSC’s ranking to the School Board for the final determination. The PSSC members consisted of Mark Smith, the director of Construction Services, who served as chair. Additional PSSC members included Jody Dumas, director of Facilities Services; Michael Foley, building code administrator for Construction Services; Sue Bofford, project manager for Construction Services as assigned to the STC-South Campus project; and Dr. Bowden, executive director of Career Technical and Adult Education for the Sarasota County School District. Dr. Bowden, as the executive director for the educational programs to be housed in the new facility, would be responsible for overseeing the STC- South Campus project and its overall construction. In addition, the School Board added Sarabeth Kalajian, director of the Sarasota County Public Library (Ms. Kalajian), as a sixth member of the PSSC. Ms. Kalajian joined the PSSC because the STC-South Campus project was intended to serve as a joint funding/joint use facility with Sarasota County. On January 14, 2015, the PSSC held the mandatory pre- application meeting for all construction management firms interested in applying for the project. At the pre-application meeting, the PSSC provided the firms an Information and Instruction Package. This document contained a scope of services, a proposed selection schedule, a set of general instructions, and an application format. Interested applicants were also provided aerial maps of the site, proposed concept plans, and space allocations. The PSSC also discussed the concept of “branding” between the STC-North Campus and STC-South Campus during the pre- application meeting. The applicants were informed that the School Board desired the STC-South Campus facility to replicate the look of the STC-North Campus. The Information and Instruction Package also discussed the application format. Applicants were to include a section on experience which would provide the PSSC information on past projects that might be of interest. In addition, the PSSC directed applicants to abide by a “cone of silence” during the PSSC’s review. Section III.G of the Information and Instruction Package contained a general instruction stating: Any questions concerning applications or the project shall be directed to Doreen Kingsley via email: doreen.kingsley@sarasotacountyschools.net. It is intended that the selection of the best qualified firms shall be made on the basis of the information provided through the application and the formal interviews. All applicants are cautioned not to contact any School Board member, [PSSC] member, or school staff regarding this project. (Emphasis added). The School Board defined the “cone of silence” as a period of time during which applicants were not to speak with any PSSC members or School Board members or staff. The only individual applicants could contact during the PSSC review was the PSSC Chair, Mark Smith. For the STC-South Campus procurement, the “cone of silence” went into effect at the time of the PSSC pre-application meeting on January 14, 2015, and ended on February 26, 2015, when PSSC Chair, Mark Smith, publically announced the PSSC’s recommended rankings by calling the three short-listed firms. Unlike the Information and Instruction Package, Policy 7.71 does not contain a “cone of silence” requirement for the School Board’s procurement process. No provision in the Information and Instruction Package related the “cone of silence” instruction to a specific obligation under Policy 7.71. More specifically, no language in Policy 7.71 imposed a “cone of silence” condition over School Board members or staff regarding the School Board’s final selection. On January 29, 2015, Petitioner, Willis Smith, and five other applicants submitted proposals in response to the School Board’s advertisement. On February 5, 2015, the PSSC convened to select a short-list of the top three applicants. As directed in Policy 7.71, Section III.A.7, each PSSC member used five weighted criteria to score each proposal. The categories included Minority Company Status, Location, Team Qualifications, List of Projects, and Related Experience. The PSSC then averaged the individual scores of the six members and completed and signed the Major/Minor and Continuing Contract Project Score Sheet. The three highest scoring proposals made the PSSC’s short-list. The short-list included Willis Smith (48.8 points), Petitioner (44.8 points), and P.J. Hayes, Inc. d/b/a Tandem Construction (Tandem) (43.7 points). The PSSC’s next step was to conduct a pre-interview meeting with the three short-listed firms. This meeting was held on February 10, 2015. At this meeting, the PSSC informed the three applicants that two of the eight factors it would specifically look for in the interviews included “Project Branding” and “previous projects of this nature.” Mr. Smith, the PSSC chair, reiterated to the three applicants that the School Board desired the STC-South Campus project to “replicate” the buildings on STC-North Campus. Mr. Smith stated that the STC- South Campus facility should reflect a “similar look” as and the “brand” of the STC-North Campus. On February 19, 2015, the three short-listed firms were given a site tour of the STC-North campus. The purpose of the tour was to provide the applicants an opportunity to see the particular building style and “brand” that the School Board desired for the STC-South Campus facility. Dr. Bowden led the tour. Dr. Bowden personally discussed the “branding” concept. He mentioned that the School Board wanted the STC-South Campus project to look like a branch of STC-North Campus and to replicate its functionality in its classrooms, fixtures, and flow. On February 26, 2015, the three short-listed firms made oral presentations to the PSSC. Following the presentations, Policy 7.71, Section III.A.11, instructed the PSSC to begin a completely new scoring procedure. In other words, the PSSC’s short-list scores would not carry over to the interview scores, and all applicant scores started over from zero. Policy 7.71, Section III.A.11, established four categories for PSSC members to score the interviews, including Timelines and Budgets, the Ability to Perform/Team Strength, Interview Rating, and Problems and Solutions/Cost Control Measures. Policy 7.71, Section III.A.8, also instructed the PSSC to consider the applicants’ “understanding of the project, their philosophical approach to the resolution of the project’s challenges and other pertinent consideration regarding the project.” Each PSSC member individually scored the interviews using the four categories. The average score became the applicants’ official scores for the purpose of ranking. Based on the applicants’ interviews/oral presentations, the PSSC ranked the firms as follows: 1) Petitioner (66.3 points); 2) Willis Smith (64.7 points); and 3) Tandem (61 points). Five PSSC members scored Petitioner as the top applicant. Willis Smith received one first-place score. Testimony at the final hearing explained that Petitioner’s proposal may have jumped over Willis Smith to the top of the PSSC’s ranking based on Petitioner’s dynamic and enthusiastic presentation, while the Willis Smith presentation was dry and factual. Thereafter, the PSSC passed a motion recommending the School Board negotiate with the top three vendors, in order, starting with Petitioner, until a successful negotiation was reached for the STC-South Campus project. After ranking the top three applicants, Policy 7.71, Section III.A.12, instructed the PSSC to submit its rankings to the Superintendent “for [School] Board approval.” Paragraph 12 states, in part: Submission of Ranking – For major/minor single projects, the top three (3) ranked companies shall be submitted to the Superintendent or their Designee on the Project Assignment Sheet (substantially as in Appendix H) for Board approval. Once the PSSC forwarded its rankings, the PSSC’s role in the procurement process was concluded. On February 26, 2015, the PSSC members signed and submitted a Project Assignment Sheet to Superintendent Lori White. The Project Assignment Sheet stated that the PSSC, “in accordance with School Board Policy 7.71, has selected the top three (3) firms and ranked them as indicated below: FIRST CHOICE: The A.D. Morgan Corporation, SECOND CHOICE: Willis A. Smith Construction, Inc., THIRD CHOICE: P.J. Hayes, Inc. DBA Tandem Construction.” The PSSC transmitted the Project Assignment Sheet to School Board Deputy Superintendent Scott Lempe, who was to forward the ranking to Superintendent White. Per Policy 7.71, Section III.A.12, the Superintendent was then charged with presenting the ranking to the School Board. If the School Board had approved the PSSC’s ranking, the School Board would have initiated negotiations for the construction management contract for the STC-South Campus with Petitioner as the top-ranked firm. After sending the Project Assignment Sheet to Deputy Superintendent Lempe, Mark Smith, as PSSC Chair, also notified each applicant of the PSSC ranking. On the afternoon of Thursday, February 26, 2015, Mr. Smith personally called each vendor informing them of their respective ranking. Later that evening, the PSSC’s scores and rankings were e-mailed to Superintendent White and the School Board members. The final PSSC ranking with Petitioner as the top- ranked vendor over Willis Smith came as a surprise to several School Board staff and members. Dr. Bowden, the lone PSSC member who scored Willis Smith as the top applicant, was “surprised, maybe even shocked,” that the PSSC ranked Petitioner ahead of Willis Smith. Based on his experience, Willis Smith did an excellent job on the STC-North Campus project. Dr. Bowden wanted to keep the team together. He felt that the PSSC had made a mistake. In the evening of February 26, 2015, shortly after the PSSC’s released its ranking, Dr. Bowden received telephone calls from several individuals inquiring about the ranking including School Board members Jane Goodwin and Caroline Zucker. Dr. Bowden informed Ms. Goodwin and Ms. Zucker of the PSSC’s process and the resulting ranking. Dr. Bowden also made at least two calls to the School Board’s general counsel. Dr. Bowden also spoke two or three times with Deputy Superintendent Lempe on the evening of February 26, 2015. Their conversation was more pointed. Dr. Bowden informed Deputy Superintendent Lempe that he believed the PSSC “had gotten it wrong” in ranking Petitioner first. Deputy Superintendent Lempe told Dr. Bowden that he would relay his concerns to Superintendent White. David Sessions, President of Willis Smith, was also surprised with the PSSC’s ranking. On the evening of February 26, 2015, Mr. Sessions called Deputy Superintendent Lempe twice to discuss the ranking. Deputy Superintendent Lempe did not answer the phone calls that evening, but returned Mr. Sessions’ calls the following Monday, March 2, 2015. Deputy Superintendent Lempe informed Mr. Sessions that he would not talk to him regarding the matter. Mr. Sessions also communicated with several School Board members after he was notified of the PSSC’s ranking. On February 26, 2015, after receiving the phone call from the PSSC Chair, Mr. Sessions contacted School Board member, Carolyn Zucker, expressing his frustration at being ranked second. On the evening of Friday, February 27, 2015, Mr. Sessions also spoke to School Board Chair Frank Kovach, at an Education Foundation fundraiser. Mr. Sessions repeated his frustration that the PSSC’s scoring process had not led to his firm’s selection for the STC-South Campus project. Mr. Sessions wondered how his firm ended up second on the PSSC’s final ranking when it was ranked first on the short-list. That evening, Mr. Sessions approached School Board member Jane Goodwin at the same event. Ms. Goodwin, however, did not wish to discuss the issue with Mr. Sessions and declined to speak with him. Mr. Sessions also contacted School Board Vice-Chair Shirley Brown, who stated that she was aware of the PSSC’s rankings but was not sufficiently “up to speed” on the matter to engage in any discussion on the issue. Deputy Superintendent Lempe also received phone calls from School Board members Jane Goodwin, Bridget Zeigler, and Caroline Zucker regarding the PSSC ranking. Deputy Superintendent Lempe asked all three School Board members to be patient and let the procurement process unfold. On Friday morning, February 27, 2015, School Board Chair Frank Kovach e-mailed Deputy Superintendent Lempe requesting Deputy Superintendent Lempe send to him the individual PSSC member score sheets from the applicant interviews/oral presentations. Later that morning, Deputy Superintendent Lempe forwarded to Mr. Kovach the PSSC member Major/Minor and Continuing Contract Project Score Sheets (Score Sheets). On the morning of Friday, February 27, 2015, Deputy Superintendent Lempe briefed Superintendent White about the PSSC’s ranking as soon as she arrived at work. Deputy Superintendent Lempe provided Superintendent White the PSSC Project Assignment Sheet which listed the applicants’ interview scores. Deputy Superintendent Lempe also informed Superintendent White that several School Board members had contacted him, as well as Dr. Bowden, who had some “concerns.” Deputy Superintendent Lempe relayed that Dr. Bowden believed the PSSC got the ranking wrong. Deputy Superintendent Lempe and Superintendent White spoke about the dispute resolution provision set forth in Policy 7.71, Section III.A.13. Superintendent White was also surprised to hear that the PSSC ranked Petitioner higher than Willis Smith. Superintendent White was familiar with Willis Smith’s past work for the School Board on the STC-North Campus. Superintendent White thought that since Willis Smith had successfully served as the construction management firm for the completed STC-North Campus project, it was likely that the PSSC would select them for the same role for the STC-South Campus project. Later on the morning of February 27, 2015, after reviewing Policy 7.71, Superintendent White initiated the dispute resolution process in Policy 7.71, Section III.A.13, which states: Dispute Resolution – If the Superintendent disputes the submitted rankings, the Superintendent or their Designee shall schedule a meeting with the [PSSC] to review the [PSSC’s] rational and the Superintendent’s or the Designee’s concerns. The Superintendent or their Designee shall then make a recommendation to the [School Board], accompanied by the [PSSC’s] rankings. Policy 7.71, Section III.A.13, essentially adds an additional layer of review by the Superintendent during a procurement process. If the Superintendent disagrees with the PSSC’s ranking, Policy 7.71, Section III.A.13, allows the Superintendent to review its rationale, and, if appropriate, submit an independent, alternative ranking to the School Board. This was the first time Superintendent White enacted the dispute resolution process in her tenure as Superintendent. Superintendent White’s concern with the PSSC ranking was based primarily on what she envisioned as the benefits in maintaining “continuity” between the STC-North Campus construction project and the STC-South Campus project.3/ On Monday, March 2, 2015, based on Superintendent White’s decision to initiate the dispute resolution process, the School Board retracted the PSSC’s ranking of February 26, 2015, pending the outcome of the Superintendent’s review. Thereafter, Superintendent White issued a notice that she would hold a meeting with the PSSC on March 16, 2015, to review the PSSC’s ranking. Immediately after Superintendent White initiated the dispute resolution process, Deputy Superintendent Lempe put together the package of pertinent information for her review. Prior to the March 16, 2015, meeting, Superintendent White reviewed the PSSC’s Score Sheet, the applicants’ interview/oral presentation materials, and the PSSC member interview notes. On March 16, 2015, Superintendent White reconvened the PSSC. Superintendent White opened the meeting by stating that she believed all three short-listed applicants were highly qualified to provide construction management services for the STC-South Campus project. Superintendent White explained, however, that she held some reservations regarding the PSSC ranking because of the unique nature of the STC-South Campus project and because the construction management services should be consistent with the STC-North Campus to maintain “branding” and “continuity.” Therefore, she was interested in hearing the PSSC members’ rationale for their ranking. At Superintendent White’s behest, Mr. Smith recounted the applicant interviews and the fact that Petitioner had an impressive oral presentation. Thereafter, Dr. Bowden spoke about Willis Smith’s history constructing the STC-North Campus project and Willis Smith’s relationship with the Sarasota County School District. Jody Dumas commented in positive terms regarding the benefit of having three quality firms with which the School Board could negotiate a contract. Ms. Kalajian spoke about the benefits of competition and Petitioner’s experience with joint- use projects. Following her meeting with the PSSC, Superintendent White determined that she would submit an alternative ranking to the School Board as authorized by Policy 7.71, Section III.A.13. Superintendent White felt an obligation and responsibility to offer another option for the School Board’s consideration. Superintendent White’s alternate ranking listed Willis Smith first and Petitioner second. Superintendent White drafted a memorandum, dated March 24, 2015, explaining her alternative ranking to the School Board. In essence, Superintendent White focused on continuity and “the uniqueness of this project in desiring a similar ‘brand’ in the building design and specifications.” Superintendent White placed significant weight on Willis Smith’s prior construction management, design, and value engineering on the STC-North Campus project. Superintendent White also appreciated the knowledge Willis Smith would bring to the “unique nature of this project” so that the School Board would be sure it received the highest level of continuity and branding. At the final hearing, Superintendent White explained that “continuity” would ensure that the STC-South Campus facility would not be viewed as a separate entity, but an extension of the STC-North Campus facility with the same architectural features, specialized classrooms, and educational programs. Superintendent White described “branding” as meaning that the STC North and South Campuses would have a very distinct and unique look and feel. Superintendent White felt that any of the three ranked applicants could successfully serve the School Board as the project construction manager. However, only Willis Smith had history relative to this specific project. She explained that the School Board wanted the STC-South Campus “to appear to the community of North Port and the wider community of Sarasota as an extension of what we had at [the STC-North Campus].” She thought that Willis Smith would bring “continuity” in terms of the relationship and the synergy of the teams working on the projects. Superintendent White also felt it was important for her to recognize Dr. Bowden’s individual scoring placing Willis Smith first. Dr. Bowden, as head of Suncoast Technical College, would play a key role in facilitating the STC-South Campus project. Superintendent White believed that using the same construction manager as the STC-North Campus project would save the School Board time and money and be “more seamless.” Superintendent White, in making her alternative ranking, did not review the individual PSSC member scores from the initial short-listing process. Neither did she specifically utilize the weighted scoring range for each category listed in Policy 7.71, Section III.A.7, which the PSSC used to create its short-list. However, Superintendent White did consider the PSSC oral presentation/interview scoring criteria. These categories included timelines and budgets, the applicants’ ability to perform and team strength, and problems and solutions and cost control measures. After reaching her decision following the dispute resolution process, Superintendent White placed both the PSSC ranking and her alternative ranking of vendors on the School Board agenda as a new business item for the School Board’s next regular meeting which was to be held on April 7, 2015. By the time of the School Board meeting on April 7, 2015, Dr. Bowden had spoken with four of the five School Board members. He encouraged each School Board member to select Superintendent White’s alternative ranking of Willis Smith first and Petitioner second. Mr. Sessions also called Chair Kovach prior to the April 7, 2015, School Board meeting to enquire as to the School Board’s review. Superintendent White did not contact any representative from Petitioner or Willis Smith from the time the School Board advertised the project on January 9, 2015, through the School Board’s decision on April 7, 2015. On April 7, 2015, the School Board held a regularly scheduled meeting during which it considered which construction management firm it would negotiate to manage the STC-South Campus construction project. The STC-South Campus project was placed on the School Board agenda as item No.: 32. The agenda item was identified as pertaining to “APPROVAL OF CONSTRUCTION MANAGER RANKINGS FOR THE SUNCOAST TECHNICAL COLLEGE NORTH PORT AND THE JOINT USE MEDIA CENTER/COUNTY LIBRARY.” The agenda item specifically read: Description The projects scope of work shall include construction management service for the pre- construction and construction phases of the Suncoast Technical College North Port campus (including the joint use media center/county library) and related site work. The project will be multi-phased. On 2/26/2015, the Professional Services Selection Committee (PSSC) met to select a construction manager. The PSSC ranked the firms in the following order: 1) The A.D. Morgan Corporation; Willis A. Smith Construction Inc.; and P. J. Hayes Inc., D/B/A Tandem Construction. The Superintendent subsequently, and in accordance with School Board Policy 7.71, reconvened the PSSC and re-ranked the firms in the following order: 1) Willis A. Smith Construction Inc.; 2) A. D. Morgan Corporation; and 3) P. J. Hayes Inc., DBA Tandem Construction. The Board may either accept the recommendation and rankings of the Superintendent, accept the rankings if the PSSC, or move to approve an alternate ranking. The cumulative total project budget is approximately $15,000,000.00. Funds for Suncoast Technical College portion of the project are available in the capital budget account. Funds for the County Library portion of the project will come from Sarasota County Government. Recommendation That the Superintendent’s rankings of Construction manager for Suncoast Technical College North Port and the Joint use Media Center/County Library project be accepted as presented and the Director of Construction Services be authorized to attempt negotiations with the top-ranked firm. Policy 7.71 does not contain a provision that requires the School Board to automatically adopt the PSSC’s ranking. Further, Policy 7.71 did not prohibit the School Board from awarding negotiation rights to any construction management firm – whether it was ranked first by the PSSC or the Superintendent. As Agenda Item No. 32 expressed, the School Board had three distinct choices in selecting a construction management firm. The School Board could accept PSSC’s recommended ranking with Petitioner first, Superintendent White’s alternative ranking with Willis Smith first, or reject all rankings and approve another alternate ranking. To assist in their review and decision during the April 7, 2015, meeting, School Board members were provided two attachments. These attachments included the PSSC ranking Score Sheet from the applicant interviews and Superintendent White’s March 24, 2015, memorandum listing her alternative ranking. In addition, Petitioner’s counsel prepared a legal memorandum, dated April 6, 2015, regarding the procurement process and applicant rankings. This 22-page memorandum was transmitted to the School Board on Monday April 6, 2015, through the School Board’s general counsel. The School Board opened discussion on the STC-South Campus project for public comments. Petitioner’s President Rebecca Smith and attorney Paul Ullom spoke on behalf of Petitioner. Mr. Sessions spoke on behalf of Willis Smith. Following public comments, Superintendent White addressed the School Board. She recommended that the School Board adopt her alternative ranking of construction managers with Willis Smith as the top-ranked firm. Following public comments and presentations, the School Board members began their deliberations on Agenda Item No. 32. School Board member Caroline Zucker moved for the School Board to accept, as presented, Superintendent White’s alternative rankings of construction managers, and for the School Board to authorize the Director of Construction Service to attempt negotiations with the top-ranked firm. Ms. Zucker’s motion was seconded for discussion. The motion was then put forth for open discussion among the School Board members. All five School Board members spoke about the vote. School Board member Bridget Ziegler spoke first. Ms. Ziegler was apprehensive with adopting Superintendent White’s alternative rankings over the PSSC’s recommended ranking. Ms. Ziegler stated that her “major, major concern” was with “the process” which was designed to “avoid potential favoritism, discrimination, and bias.” She cautioned that the School Board was setting “a dangerous precedent by going against what the [PSSC’s] recommendation is . . . because . . . it’s important to have a competitive option out there.” Ms. Ziegler recognized the School Board’s desire for consistent “branding” on the STC Campuses. However, she believed that both Petitioner and Willis Smith would be fully able to implement the “branding” the School Board desired. Ms. Ziegler ultimately voted against the motion to accept Superintendent White’s alternative ranking of Willis Smith first. School Board member and Vice-Chair Shirley Brown, spoke next. Ms. Brown expressed that she had reviewed all the facts presented on the competing applicants, which included the PSSC short-list scoring and the PSSC interview process. Ms. Brown placed weight on the School Board’s positive experience with Willis Smith on the STC-North Campus project where they finished the project on time and under budget. Ms. Brown also considered the slim 1.66 point differential between the final scores and whether the selection of Willis Smith would save the School Board money in the long run. Ms. Brown voted in favor of the motion to accept Superintendent White’s alternative ranking. The next to speak was School Board member Jane Goodwin. Ms. Goodwin commented that the School Board was presented three excellent construction management firms to consider. In selecting a top-ranked firm, however, Ms. Goodwin stated that she looked at the overall scoring, as well as the School Board’s prior experience with Willis Smith. Ms. Goodwin also voted to accept Superintendent White’s alternative ranking. School Board member Caroline Zucker spoke next. Ms. Zucker announced that she gave more weight to the initial short-list scores as opposed to the final PSSC interview scores in terms of judging the applicants’ capabilities. Ms. Zucker also gave weight to the working relationship that the School Board had with Willis Smith regarding the earlier project on STC- North Campus, as well as the cost savings that occurred in that project. She also commented that she appreciated the partnerships that the School Board had in the past between the community, the Education Foundation, Willis Smith, and the School Board. Ms. Zucker voted in favor of the motion to accept Superintendent White’s ranking. The last to speak was School Board Chair Frank Kovach. He expressed his frustration with the subjectiveness of the ranking process and was otherwise frustrated with the media coverage on the matter. Chair Kovach voted in favor of the motion. Thus, by a vote of 4-1, the School Board approved Ms. Zucker’s motion to accept as presented Superintendent White’s alternative ranking of construction management firms. Accordingly, Willis Smith was ranked first for competitive negotiations on the STC-South Campus project. Petitioner was ranked second. According to testimony from School Board witnesses, the School Board’s action was the first time the School Board has not selected the PSSC’s top-ranked applicant. After the School Board makes its final determination on the rankings for competitive selection, Policy 7.71, Section III.A.14, sets forth the process for contract negotiations, which is essentially the contract-negotiation process expressed in section 287.055(5). Concomitant, with the School Board’s vote on Agenda Item No.: 32, the School Board authorized its Director of Construction Services to initiate negotiations with Willis Smith on the STC-South Campus project. Due to this bid protest proceeding, the School Board has not awarded the construction management contract. At this time, it has only instructed School Board staff to commence negotiations with Willis Smith as the top-ranked firm. As discussed in detail below, the evidence and testimony presented at the final hearing does not establish, by a preponderance of the evidence, that the School Board’s decision to select Willis Smith as the top-ranked construction management firm with which to negotiate the STC-South Campus project was clearly erroneous, contrary to competition, or arbitrary or capricious. Accordingly, Petitioner has not proven that the School Board’s action was contrary to its governing statutes, rules or policies, or solicitation specifications as prohibited by section 120.57(3)(f).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Sarasota County School Board enter a final order upholding its ranking of Intervenor, Willis Smith, first and denying the Amended Petition for bid protest filed by Petitioner, A.D. Morgan Corporation, Inc. It is further recommended that Petitioner’s request for attorney’s fees under section 255.0516 be denied as Petitioner did not prevail in this matter. DONE AND ENTERED this 17th day of September, 2015, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 17th day of September, 2015.
The Issue The issues are: (1) whether the Petitioner's notice of bid protest filed on June 5, 1996, was timely under Section 120.53(5), Florida Statutes, and, if not, whether Petitioner has waived its right to participate in bid protest proceedings; and (2) if Petitioner's bid protest was timely filed, whether the Respondent acted fraudulently, arbitrarily, illegally or dishonestly in rejecting the Petitioner's bid.
Findings Of Fact The Petitioner is a general contractor which operates in Alachua County and surrounding areas. The Respondent is the governing body of the school district in Alachua County. In April and May, 1996, the Respondent publicly advertised an Invitation to Bid on the Project which consists of hard courts for basketball, driveway paving and new drainage provisions. Petitioner and three other bidders timely submitted sealed bids to the Respondent at its office located at the E. Manning, Jr. Annex, 1817 East University Avenue, Gainesville, Florida. Petitioner's bid proposal included a Contractor's Qualification Statement setting forth Petitioner's experience and financial qualifications to act as the general contractor for the Project. There is no evidence that Petitioner is disqualified as a responsible bidder because: (a) it colluded with other bidders; (b) it based its proposal on bid prices which were obviously unbalanced; (c) it included any false entry in its bid proposal; or (d) it failed to completely fill out the required list of subcontractors. The Invitation to Bid does not set forth any other specific conditions which would disqualify an otherwise responsible bidder. However, Respondent reserves the right to reject any and all bids when it determines that such rejection is in its interest. Respondent publicly opened the bids and read them aloud at 2:00 P.M. on May 9, 1996 as required by the Invitation to Bid. Petitioner did not attend the opening of the bids. The Invitation to Bid specified that the bids would be "tabulated and evaluated by the Superintendent of Schools of Alachua County or member or members of his staff or other individual or individuals designated by him." Edward Gable is Respondent's Director of Facilities. The Superintendent designated Mr. Gable to evaluate bids received for facility projects and to formulate recommendations to Respondent. The Invitation to Bid does not set forth a time certain in which Respondent will notify bidders of its decision or intended decision. However, it does state as follows: At the next regular or special meeting of the Board or at the designated meeting thereafter, the bids, as so opened, tabulated and evaluated, and the recommend- ation of the Superintendent of Schools of Alachua County regarding them shall be presented to the lowest responsible bidder meeting the requirements of the law and the State Board of Education Regulations. In Section 19.1 of the Instructions to Bidders, Respondent informs bidders that it will award the contract to the lowest bidder as soon as possible provided that the lowest bid is reasonable and in Respondent's best interest. The Invitation to Bid provides bidders with the following notice relative to Respondent's decision or intended decision concerning a contract award: The Board shall provide notice of its decision or intended decision concerning a contract award. Notice shall be given either by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statues, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Any person who is affected adversely by the decision or intended decision shall file with the Board a written "Notice of Protest" within seventy-two (72) hours after posting or notification. A formal written protest shall be filed within ten (10) calendar days after filing the 'Notice of Protest.' Section 17.1 of the Instructions to Bidders contains the following language concerning Respondent's decision or intended decision: 17.1 The Board shall provide notice of its decision or intended decision concerning a contract award. For any other decision, notice shall be given either by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. Section 18.1 of the Instructions to Bidders provides as follows: Bid tabulations with recommended awards will be posted for review by interested parties at the Planning and Construction Department, 1817 East University Avenue, Gainesville, Florida, following the bid opening, and will remain posted for a period of 72 hours. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute as (sic) waiver of proceeding under Chapter 120, Florida Statutes. The Invitation to Bid and the Instructions to Bidders distinguish between a protest concerning a contract award and a protest related to the specifications contained in an invitation to bid or in a request for proposals. In the latter context, a bidder must file a written protest within seventy-two (72) hours after receipt of the project plans and specifications. This case does not involve a protest of a bid solicitation. By virtue of the above referenced provisions in the Invitation to Bid and the Instructions to Bidders, Respondent gave all bidders sufficient and reasonable notice that a posted tabulation together with its recommendation constituted Respondent's intended decision. The bid specifications in the instant case required bidders to submit a bid on a base contract for certain school facility improvements with alternate bids relative to additional improvements in the event Respondent decided to include such features in the Project. Petitioner's base bid was $135,000; it was the lowest bid submitted. The next low bid was from Watson Construction Company, Inc. (Watson) at $133,345. Two additional bids were higher than Watson's bid. On the morning of May 30, 1996 one of Petitioner's employees, Roger "Dave" Williams" phoned Mr. Gable to inquire about the status of the bid award. Mr. Gable was unavailable to take the call. Mr. Williams left a message for Mr. Gable to return the call. Next, at approximately 10:00 a.m. on May 30, 1996, Mr. Williams called a member of Mr. Gable's staff who stated that, as far as he knew, Respondent had not made a decision on the contract. Mr. Gable completed his evaluation and posted the bid tabulation on May 30, 1996 at 3:00 p.m. Included on the bid tabulation was the following statement: RECOMMENDED ACTION: It is recommended that the Board reject the low base bid as submitted by D. E. Wallace Construction Corporation, Alachua, Florida, due to past unsatisfactory contract performance. It is recommended that the Board accept the base bid of $133,345. and award a contract for construction totaling $133,345. to Watson Construction, Gainesville, Florida. Completion of this project shall be within ninety (90) consecutive calendar days from the date indicated in the 'Notice to Proceed.' The bid tabulation clearly notes that "[f]ailure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes." Respondent regularly posts notices of intended decisions concerning bid awards on a bulletin board in the main hallway of the E. D. Manning Annex. A title at the top of the bulletin board identifies it as the location for bid postings. Respondent posts a copy of Section 120.53(5), Florida Statutes, and a copy of the Respondent's Policy DJC--Bidding Requirements below the title of the bulletin board. Respondent has adopted Policy DJC as a rule through a formal rulemaking process. Policy DJC states as follows in pertinent part: The Board shall provide notice of its decision or intended decision concerning a bid solicitation or a contract award. For a bid solicitation, notice of a decision or intended decision shall be given by United States mail or by hand delivery. For any other Board decisions, notice shall be given either by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. The notice shall contain the following two paragraphs. Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Any person who is affected adversely by the decision or intended decision shall file with the Board a written notice of protest within 72 hours after the posting or notification. A formal written protest shall be filed within 10 calendar days after filing the notice of protest. . . . Failure to file a timely notice of protest or failure to file a timely formal written protest shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Immediately below Policy DJC is a space where Respondent always posts its bid tabulations which include the recommended action on each project and notice that "[f]ailure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes." The bottom of the board, in large letters, contains the following words: "Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes." This permanent bulletin board, read as a whole, contains more than enough information to provide bidders with notice of an intended decision and the time frames within which a disappointed bidder must file a written protest. Although he was not required to do so, Mr. Gable telephoned Petitioner's office on the afternoon of May 30, 1996 to advise its president, D. Wallace, of the recommendation. Petitioner was not available to accept that call. Mr. Gable placed another courtesy telephone call to Petitioner on the morning of May 31, 1996. During that conversation, Mr. Gable informed Mr. Wallace of the recommendation for Respondent to reject Petitioner's bid and accept the next lowest bid. Petitioner's representative inspected the posting board in the afternoon on May 31, 1996. On June 3, 1996, Respondent sent Petitioner by facsimile transmission a copy of the agenda for Respondent's June 4 meeting, items H.1. of which was: H.1. Bid Award for Project SBAC CB436 - Newberry High School Site Improvements. Bids for the construction of this project were received on May 9, 1996. Recommendation will be presented. The seventy-two hour window in which a bidder may file a protest does not include Saturdays, Sundays or holidays. Therefore, the time in which a bidder could have filed a protest of Respondent's intended decision in this case, expired June 4, 1996 at 3:00 p.m. No bidder had filed a written protest at that time. Respondent held a regular meeting on June 4, 1996, at 7:00 p.m. When Respondent considered the bid award for Project SBAC CB 436, Mr. Gable presented the recommendation that the Board reject Petitioner's bid and accept Watson's bid due to Petitioner's past unsatisfactory contract performance. Petitioner's counsel spoke against the recommendation. At that time the Petitioner had not filed any written notice of protest. After discussion, Respondent voted to award the contract to Watson. Respondent and Watson executed a contract for the construction of the Project on June 4, 1996. The next day, on June 5, 1996, at 3:40 p.m., Petitioner filed with Respondent, by facsimile transmission, a Notice of Protest challenging the award of the contract for the Project to Watson. The filing of this protest was untimely. Therefore, Petitioner waived its right to protest Respondent's decision or intended decision on the Project. The basis of Respondent's intended decision and ultimate final decision to reject Petitioner's low bid was due to Petitioner's past unsatisfactory performance. The following facts support a finding that Petitioner was not a responsible bidder. Respondent awarded Petitioner the contract for a previous construction project, Project SBAC CA 149, Additions and Renovations for Terwillegar Elementary School. That project included the construction of a number of school buildings. The contract amount was approximately 5.1 million dollars. The last building in the Terwillegar project became "substantially complete" in September, 1995. In January, 1996, Mr. Gable wrote a letter to Petitioner, informing him of the outstanding punch list items for the Terwillegar project. A contractor must complete punch list items and have them approved prior to "final completion." In the Terwillegar Project, the contract provided for compilation of items on the punch list within thirty (30) days from "substantial completion." As of May 30, 1996, Petitioner had not responded to Mr. Gable's letter about the Terwillegar punch list, nor had it completed the punch list. Many of the items on the list were minor, but some of the items involved the safety or integrity of the building structure. The Terwillegar project contract also contained a project closeout section which listed a variety of documents and other materials that Petitioner had to provide to Respondent as part of the "final completion." Included in the Terwillegar project's closeout were items such as insurance change-over requirements, warranties, workmanship bonds, maintenance agreements, final certifications, a final payment request, consent of surety, maintenance manuals, record drawings, record specifications, record project date, and operating instructions. As of May 30, 1996, Petitioner had not provided any of the Terwillegar project closeout materials to the Respondent. The delay in project closeout, after substantial completion, is completely unacceptable to the Respondent. Prior to the opening of bids in this case, Petitioner filed a civil suit against Respondent seeking approximately $1,500,000 representing the unpaid contract balance, subcontractors' and material suppliers' claims for labor and material, and other delay-related damages on the Terwillegar project. Petitioner's claim that Respondent's intended decision and/or final decision was based on personal animosity and bias against Mr. Wallace is contrary to more persuasive evidence. Specifically, Petitioner's Exhibit 6 is not persuasive evidence of bias. The Petitioner's president, D.E. Wallace, has over 30 years in the construction field, including 22 years as an owner/operator of a general contractor company. He has completed more than 100 projects in north Florida in the past eighteen (18) years, including 30 school board construction projects. Mr. Wallace has worked on approximately nine (9) school board projects in Alachua County. He holds himself out as being "completely familiar and knowledgeable in government and building codes, ordinances, regulations, etc."
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Respondent enter a final order dismissing the Petitioner's protest as untimely. DONE and ENTERED this 9th day of October, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1996. COPIES FURNISHED: David L. Worthy, Esquire 4128 Northwest 13th Street Gainesville, Florida 32609 Thomas L. Wittmer, Esquire 620 East University Avenue Gainesville, Florida 32601 Robert W. Hughes, Superintendent Alachua County School Board 620 East University Avenue Gainesville, Florida 32601-5498 Frank T. Brogan, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In February 1989, petitioner, Michael J. Millillo, Jr., was a candidate on the certified building contractor examination. The test is prepared and administered by respondent, Department of Professional Regulation, Construction Industry Licensing Board (Department or Board). Petitioner later received written advice from the Department that he had made a grade of 63 on Part II of the examination. According to agency rules, a score of at least 69.1 is required for passing. Petitioner then filed an appeal of his examination results contending that question 8 was ambiguous and that question 20 contained more than one correct answer. That prompted this proceeding. As a result of a stipulation by counsel at hearing, petitioner was given credit for his answer to question 20 and his grade was raised to 67. Accordingly, the appeal is now limited to question 8. The examination was prepared by the National Assessment Institute and requires an examinee to use "entry level" knowledge in formulating his responses. Question 8 was a mathematics question having a value of four points on a candidate's overall score. It is undisputed that if Millillo had received four additional points he would have passed the examination. Question 8 was a multiple choice question containing four possible answers. Although the question cannot be repeated verbatim here because of confidentiality constraints, it required a candidate to make nine separate mathematical calculations in order to arrive at the correct solution. Petitioner's challenge is limited to the first calculation, and more specifically, to the wording in the question. He contends that the wording was so ambiguous that a candidate could easily arrive at a different answer than suggested by the Board. In general terms, the subpart in dispute provided a candidate with an annual payroll cost for a general superintendent who was the supervisor on a project taking one hundred fifty days to complete. The candidate was required to calculate the superintendent's cost assuming he spent 15% of his time on the project. The solution was derived by multiplying a .15 factor X 150/360 X the annual payroll cost. Petitioner testified on his own behalf and suggested that the question assumed the superintendent devoted 15% of his total time for the entire year to the project, and that the appropriate cost would be obtained by multiplying that percentage factor times the individual's annual payroll cost. The resulting number was approximately twice as great as the Board's correct solution. Respondent's consultant, George Bruton, is a licensed contractor and assisted in the preparation of the examination questions. He considered the question to be clear and unambiguous and required a student to recognize that the superintendent spent 15% of his total time on the project for five months, which was the life of the project. This interpretation is logical and reasonable, consistent with the wording in the question, and is found to be correct. The witness added that because 78% of all candidates on the examination obtained the correct answer, it reinforces his contention that the question was not ambiguous.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's request to receive a passing grade on the February 1989 certified building contractor's examination. DONE and ORDERED this 6th day of November, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4312 Respondent: 1. Substantially adopted in finding of fact 1. 2-4. Substantially adopted in finding of fact 2. 5. Substantially adopted in finding of fact 5. 6-7. Substantially adopted in finding of fact 6. COPIES FURNISHED: Frederick F. Rudzik, Esquire One Fourth Street, North Suite 800 St. Petersburg, Florida 33701 E. Harper Field, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
