The Issue Whether the Miami-Dade County School Board's failure to disqualify Magnum Construction Management Corporation from bidding on Project No. A0746 pursuant to paragraph G. of the General Requirements of the Request for Qualifications issued in connection with the project was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board The School Board is a duly constituted district school board charged with the duty of operating, controlling, and supervising all free public schools in Miami-Dade County, including, among many others, Westview Middle School (Westview) and Miami Coral Park Senior High School. The Westview Project Westview is currently undergoing expansion, remodeling, and renovation work (Westview Project). The project is almost complete. Blanca Bazan is a School Board employee who serves as project manager on School Board construction projects. At all times material to the instant cases, Ms. Bazan has been the Project Manager on the Westview Project. LIVS and Associates (LIVS), an architectural and engineering firm, has been the Project Architect/Engineer (or A/E of Record) on the Westview Project since October of 1997, when it entered into a written agreement (which is still in effect) to assume such responsibility in return for a "lump sum" payment, plus additional fees (LIVS Westview Agreement). Paragraph III.G. of the LIVS Westview Agreement describes the "basic services" LIVS is to provide during the "construction phase" of the project. It provides, in pertinent part, as follows: The following are to be performed by the A/E [LIVS], and shall in all cases be in accordance with the requirement of the contract documents: OBSERVATION a.) The A/E shall provide construction administration of the Contract for Construction as set forth in this AGREEMENT and in the General Conditions of the Contract for Construction unless otherwise provided in this AGREEMENT. The A/E shall visit the site at least weekly or as appropriate to the stage of construction or as otherwise directed by the BOARD to become generally familiar with the progress and quality of the Work completed and to determine in general if the Work is being performed in a manner indicating that the Work when completed will be in accordance with the Contract Documents. As part of the A/E's basic services, the A/E shall conduct 120 on-site observation visits. A/E shall provide a report to the PM [Project Manager] . . . . On the basis of on-site observations as the A/E, the A/E shall keep the BOARD and Contractor informed immediately in writing of the progress or lack of progress and quality of the Work, and shall endeavor to guard the BOARD against defects and deficiencies in the Work. The A/E shall at all times have access to the Work, wherever it is in preparation or progress. * * * b.) . . . . A/E will enforce the faithful performance of Contract and assure that the Work has been or is being performed in accordance with the Construction Documents. . . . A/E will provide written notice to BOARD if it observes or has reason to become aware of any defect or non- conformance with the Construction Documents. CONTRACTOR'S SUBMITTALS The A/E shall review and evaluate samples, schedules, shop drawings, and other submissions for conformance with the design requirements of the Project, applicable codes and ordinances. . . . The A/E shall also prepare in a timely manner change order items, including the proper documentation for DOE transmittal. . . . * * * 4. QUALITY CONTROL The A/E shall make a reasonable effort to evaluate materials and/or workmanship for conformance with Construction Documents, evaluate quality control testing reports, advise the Construction Contractor and the BOARD immediately of any unacceptable materials and workmanship the A/E may discover and [e]nsure that the Contractor take appropriate action to remedy unacceptable conditions. * * * CERTIFICATION OF PAYMENTS The A/E shall review the Contractor's notarized requisitions for payment, the schedule of values, subcontractor partial releases and the Project schedule. The A/E shall determine the amount which in the A/E's opinion should be paid to the Contractor and shall recommend for [the] BOARD'S approval certificates for payments in such amounts. These certificates will constitute a representation to the BOARD, based on site observations by all appropriate Designated Specialists for architectural and engineering disciplines and on the data comprising the application for payment, that the Work has progressed to the point indicated. By recommending a certificate for payment consistent with the contract documents, the A/E shall also represent to the Board that, to the best of the A/E's knowledge, information and professional judgment, the quality of work is in accordance with the Construction Contract Documents, unless the BOARD has been notified to the contrary in writing. Prior to issuing certification for payment, A/E shall review the status of Contractor's Construction Documents and Project schedule and verify that the documents and/or schedules are up-to-date and accurate to the extent visual observation of construction will disclose. A/E shall also confirm that after the first application for payment, each subsequent application shall be accompanied by subcontractor partial lien release fully accounting for subcontractor payments due for the previous application. If the Construction Documents and Project Schedule are not up-to-date and/or accurate, A/E shall include in its certification for payment a statement that the Construction Documents and/or Project Schedule are not up-to-date. In such event, BOARD may, a.) hold an additional ten (10)% of amount then due Contractor until A/E verifies that the Construction Documents and/or Project Schedule are up-to-date and accurate, b.) refuse to process the partial or final requisition for payment, or c.) pay Contractor. . . . The A/E's certification is a representation by A/E to Owner that all required items noted herein are submitted and proper and serves as a recommendation for payment only. The A/E shall make every reasonable effort to process the Contractor's requisition for payment in accordance with the timelines[] established in the General Conditions of the Construction Contract. . . . * * * SUBSTANTIAL COMPLETION The A/E, upon written notification by the Contractor that the Work is substantially complete and ready for substantial completion shall promptly conduct inspection to determine the date or dates of substantial completion for the work. . . . c) Not Substantially Complete If A/E determines that the Work has not achieved Substantial Completion, A/E will notify Contractor in writing of the deficiencies within ten (10) days of the Inspection. FINAL COMPLETION AND FINAL PAYMENT Upon receipt of written notice that the Work is ready for Final Inspection and Acceptance and upon receipt of a final Requisition for Payment, or at completion of the thirty (30) day punchlist period, whichever is earliest, A/E, its engineers and other consultants, BOARD and Contractor shall participate in a walk-through to inspect the Work. At the conclusion of the inspection, the Work shall be determined to be as follows: Finally Complete If it determined that the Work has achieved Final Completion, final payment shall be made in accordance with the Contract Documents. Not Finally Complete If it is determined that the Work has not achieved Final Completion, A/E shall prepare a Final Completion Punchlist and Final Completion shall be achieved in accordance with the Contract Documents and such other consequences as allowed by contract and at law shall be employed. . . . After all Final Inspection Punchlist items have been completed, A/E will recommend to BOARD acceptance of the Project and make recommendations regarding Contractor's final payment request. . . . Paragraph X.B. of the LIVS Westview Agreement provides as follows: If for any reason, the A/E is unable to perform the services under this contract, the BOARD reserves the right to either name or approve the A/E selected to complete the performance of this AGREEMENT. The BOARD reserves the absolute right to recommend a successor A/E or terminate the services of the A/E.[3] Paragraph XII. of the LIVS Westview Agreement provides that "[t]he BOARD may terminate this AGREEMENT, with or without cause, at any time upon thirty (30) days written notice to the A/E." With LIVS' assistance, a Project Manual for the Westview Project (Westview Manual) was prepared in anticipation of the letting of the Contract for Construction of the project through a competitive bidding process. Included in the Westview Manual were the General Conditions of the Contract for Construction. Subsections 3.1.1, 3.3.1, 3.3.2, and 3.3.3 of these General Conditions read as follows: 3.1.1 Contractor is the person, firm or corporation authorized to do business in the State of Florida and properly licensed or registered for the work to be performed with whom a Contract has been made with the Board for the performance of the Work described in the Construction Documents. * * * Contractor shall supervise and direct the Work in a manner consistent with contemporary community standards. Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Construction Documents give other specific instructions concerning these matters. Contractor shall be responsible to Board for acts and omissions of Contractor's employees, Subcontractors and their agents and employees and other persons performing portions of the Work under the Contract and shall be responsible to A/E and Board for coordination and complete execution of the Work in accordance with the Construction Documents. 3.3.3. Contractor shall not be relieved of obligations to perform the Work in accordance with the Construction Documents either by activities or duties of A/E in its administration of the Contract, or by tests, inspections or approvals required or performed by persons other than Contractor. In or around 1999, the Contract for Construction of the Westview Project was awarded by the School Board to J.V. Construction Corporation (J.V.). As required by law and the terms of the Contract for Construction, J.V. executed and delivered to the School Board a payment and performance bond issued by The Hartford Fire Insurance Company (Surety). J.V. subsequently defaulted and its right to proceed under the Contract for Construction was terminated by the School Board, which called upon the Surety to fulfill the Surety's obligations under the payment and performance bond it had issued. As a result, the Surety "essentially step[ped] into the shoes of [J.V.]" under the Contract for Construction.4 The Surety thereafter contracted with MCM to act as a "completion contractor" and complete the work J.V. had begun under the Contract for Construction. The School Board was not a party to this contractual arrangement. The Completion Contract into which the Surety and MCM entered (which has been in effect since October 25, 2001) provides, in pertinent part, as follows: THIS COMPLETION CONTRACT (the "Contract") is effective the 25th day of October 2001 by and between The Hartford Fire insurance Company (the "Surety") and Magnum Construction Management Corp. (the "Completion Contractor"). RECITALS WHEREAS, J.V. Construction Corp. (the "Former Contractor") and THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA (the "Owner") entered into a contract (the "Original Contract") for the Former Contractor to furnish all labor and material and perform all work for the construction of an addition to the Westview Middle School Project No. A0670 (the "Project") in accordance with the terms and provisions of the Original Contract including all contract documents forming a part of the Original Contract; WHEREAS, as required by law and under the terms of the Original Contract, the Former Contractor and Surety made, executed and delivered to the Owner a Performance Bond, Bond No. 21 BCS AE 8081, and Payment Bond, Bond No. 21 BCS AE 8081 (collectively, the "Bonds"), each in the penal sum of $6,678,000.00; WHEREAS, the Owner has terminated Former Contractor's right to proceed under the Original Contract, and the Owner has called upon the Surety to fulfill its obligations as surety under the terms of the Performance Bond; WHEREAS, the Completion Contractor has submitted a proposal dated July 25, 2001, to the Surety to complete the Original Contract, and said proposal is incorporated herein . . . ; and WHEREAS, the Surety and the Completion Contractor desire to enter into this Contract under the terms and conditions hereinafter set forth. NOW, THEREFORE, the Surety and the Completion Contractor, for and in consideration of the mutual obligations and promises herein set forth, do contract and agree as follows: AGREEMENTS Contract Documents. The Contract to the Surety consists of the terms and provisions contained herein, including the proposal from MCM Construction to the Surety dated July 25, 2001, to complete the Original Contract . . . ; and the Original Contract, including all General, Supplementary and Special Conditions, drawings, specifications, forms, addenda and documents forming a part of the Original Contract and any modifications to the Original Contract, all of which are incorporated herein by reference and which are hereinafter referred to collectively as the "Contract Documents." The Completion Contractor hereby warrants that it has received and read all of the Contract Documents. Strict Compliance. The Completion Contractor shall be bound to the Surety by all of the terms and provisions of the Contract Documents, including administrative as well as technical provisions, and shall strictly comply therewith in all respects. Furthermore, the Completion Contractor shall be bound in the same manner and to the same extent that the Surety and the Former Contractor or either of them would be bound to the Owner under the Original Contract, including but not limited to the conditions or determinations by the Owner with respect to all work done thereunder. The Completion Contractor shall have no responsibility or liability for indebtedness incurred by the Former Contractor. * * * Work to be Performed. The Completion Contractor shall furnish and pay for all labor, materials, services and equipment and shall do everything else necessary to perform and satisfactorily complete the work of the Original Contract as required by the Contract Documents to the satisfaction of the Surety and the Owner in such manner as to fully protect and save the Surety harmless as to its liability to the Owner for the completion of the original Contract (The "Work"). Time for the Performance of the Work. . . . . Subject to allowable time extensions as provided under the terms of the Original Contract, if the Completion Contractor fails to achieve Substantial Completion as defined in the Original Contract in the time allowed by this Paragraph, the Completion Contractor is liable to the Surety for all liquidated damages assessed against the Surety for the Work under the Original Contract after 713 days from the execution of this Agreement by both parties. The Surety may withhold from the Completion Contractor payments which otherwise may be due to the Completion Contractor in an amount equal to the liquidated damages assessed by the Owner. Price. The Surety shall pay to the Completion Contractor and the Completion Contractor agrees to receive and accept Four Million, Seven Hundred Eighty Eight Thousand, Three Hundred ($4,788,300.00) Dollars (the "Price") as full compensation for the performance and completion of the Work as described in the Contract Documents. . . . * * * 9. Payment. As specified in the Original Contract, the Completion Contractor shall prepare, sign and submit to the Owner, on behalf of the Surety, a request for payment (the "Surety/Owner Requisition") showing the value of the work completed and the materials stored to date in accordance with the terms of the Original Contract. The Surety/Owner Requisition shall be based on the Original Contract price of the Former Contractor. The amount of the Surety/Owner Requisition as approved by the Owner and the Surety shall be due and payable to the Completion Contractor within seven (7) days after the Surety receives payment from the Owner. If the Owner refuses to pay the Surety for any reason related to the Completion Contractor's performance, nonperformance, or in any way related to the Completion Contractor's actions, the Surety shall have no obligation to pay the Completion Contractor until the Owner pays the Surety. In this event, the Surety shall only be obligated to pay the Completion Contractor whatever amounts are received by the Surety within seven (7) days of the Surety's receipt of payment from the Owner. In the event Owner refuses to pay Surety for any reason NOT related to the actions of the Completion Contractor, or its Subcontractors, Surety shall make payment to completion contractor, for all work in place as of the date of the payment application, within the timeframe set forth in the Original Contract for payment to the Original Contractor from the Owner. * * * B. In the same time frame as specified in the Original Contract, the Completion Contractor shall prepare and submit to the Surety a request for payment (The "Surety/Completion Contractor Requisition") based upon the amount of the Completion Contractor's price to the Surety. The Surety/Completion Contractor Requisition shall be based on the same percentages of completion (the value of the work completed and the materials stored to date (as the Surety/Owner Requisition.). The Surety shall pay the Completion Contractor for the Surety/Completion Contractor Requisition as specified in the immediately preceding paragraph. * * * Defects in Work. The Completion Contractor shall be responsible for any and all defects in the work performed or materials supplied by the Completion Contractor and/or any of the Completion Contractor's subcontractors or materialmen after the execution of this Agreement by both parties. Independent Contractor. Except as otherwise provided in this Contract and the Original Contract the Completion Contractor will be permitted to exercise the full prerogatives of a prime contractor, in prosecuting the work, including but not limited to the selection and classification of supervisors and workers, scheduling, determination of equipment and material requirements, and the establishment of work hours and work week including overtime. It is further understood and agreed that the Completion Contractor is an independent contractor in connection with all work to be performed by it pursuant to the Contract Documents. * * * The Completion Contractor as the Surety's Representative on the Project. The Surety shall be represented at the Project by the Completion Contractor. Prior to the issuance of the Notice to Proceed, the Completion Contractor shall name, and the Surety shall specifically authorize in writing an individual with the Completion Contractor to be its representative (the "Authorized Individual") solely for the purposes set forth in this paragraph. The Authorized Individual will represent the Surety in dealing with the Owner on day to day construction issues with respect to the Project. The Surety hereby designates the Authorized Individual to prepare and process pay requisitions on the Contract. However, the Surety will sign all pay requisitions submitted to the Owner. Payments from the Owner shall be made payable to the Surety and transmitted to the Surety . . . . * * * 17. Termination of Agreement. Termination for Convenience. This Contract may be terminated in whole or in part by the Surety at any time for the Surety's convenience, provided the Completion Contractor is given not less than ten (10) calendar days written notice of intent to terminate and an opportunity for consultation with the Surety prior to termination. . . . Termination for Cause. Should the Completion Contractor, at anytime, in the judgment of either the Owner or the Surety, refuse or fail to supply a sufficient number of properly skilled workmen or materials, tools, equipment, facilities, or supplies of a proper quality; or fail in any respect to prosecute the work with promptness and diligence; or interfere with or impede the work of others on the Project; or fail in the performance of any of its obligations under this Contract or under the Original Contract, and should the Completion Contractor fail within three (3) days after receipt of written notice from either the Owner or the Surety to remedy such default; . . . or disregard the instructions of the Owner or the Surety; or for any other cause whatsoever shall not carry on the work in an acceptable manner, the Surety may, in any such event, either terminate this Contract or may exclude the Completion Contractor and its employees and agents from the work without terminating this Contract. . . . Following the execution of the Completion Contract, the Surety's attorney wrote a letter, dated November 7, 2001, to Ms. Bazan, which read as follows: The Hartford is in receipt of your letter dated November 2, 2001, and has requested that we respond on its behalf. In response to your specific questions, please be advised of the following: The Hartford's authorized representative on the project is: Mr. Fernando Munilla MCM Corp. 6201 S.W. 70th Street Second Floor Miami, Florida 33143 The Hartford has also authorized Mr. Fernando Munilla to prepare and process pay requisitions on the project. However, the Hartford will sign all pay requisitions submitted to the School Board. Payments from the School Board shall be made payable to the Hartford Fire Insurance Company and transmitted to The Hartford at the following address unless and until the School Board is notified in writing of a different address: The Hartford Fire and Insurance Company Hartford Plaza-T4 Hartford, Connecticut 06115 Attention: Robert Griffith, Esq. Bond Claims Mr. Fernando Munilla shall have, on behalf of The Hartford, the authority to negotiate and sign change orders for extra work requested or required by the School Board (hereinafter "Change Order") without The Hartford's prior written approval, provided that the Change Order does not exceed $10,000.00 and that MCM requests and is given additional time to perform the Change Order. If the Change Order does exceed $10,000.00, or if MCM requests additional time but no additional time is given to MCM to perform the Change Order, then The Hartford's written approval is required to negotiate the Change Order and the final Change Order must be signed by The Hartford and not Mr. Munilla. If the total of the approved Change Orders exceeds the sum of $50,000.00, then The Hartford, and not Mr. Munilla, must approve in writing all additional or subsequent Change Orders regardless of the amount of each such Change Order. Mr. Munilla has no authority to negotiate deductive Change Orders, credits, backcharges or net deductions from the Original Contract of any nature whatsoever without The Hartford's prior written approval. Mr. Munilla has no authority to negotiate on behalf of The Hartford on any disputes between MCM and The Hartford. I trust this letter answers all of your questions. Please do not hesitate to contact me should you require any additional information or clarification. Since the effective date of the Completion Contract, LIVS, acting pursuant to the LIVS Westview Agreement as the School Board's A/E of Record on the Westview Project, has been inspecting and evaluating the work performed by MCM under the Completion Contract and verifying that work for which payment is sought (through the submission of pay requisitions by MCM on behalf of the Surety) has been completed in accordance with the requirements of the Contract for Construction. If a pay requisition is approved by LIVS, it is then sent to Ms. Bazan for her review and approval. If everything is in order, Ms. Bazan signs the pay requisition and then "run[s] it through the chain of command." When all the necessary signatures are obtained, the School Board makes payment to the Surety, which, in turn, pays MCM under the terms of the Completion Contract. MCM does not have any contract with the School Board in connection with the Westview Project. The payment it receives for the work it does on the project comes from the Surety (with which it does have a contractual relationship), not from the School Board. The School Board considers the Surety to be the Westview Project "contractor" (as evidenced by MCM Exhibit 19, which is an excerpt of an October 30, 2002, printout listing School Board construction projects).5 In the Statement of Contractor's Qualification that MCM submitted to the School Board in 2002 to obtain its Certificate of Contractor Prequalification for "General Contractor [W]ork" (which certificate was effective July 10, 2002, until July 10, 2003, and authorized MCM "to have under contract with the [School] [B]oard at any one time a total dollar value of work in the amount of $100,000,000.000 and maximum dollar value of each individual project in the amount of $40,000,000.00"), MCM stated, among other things, the following under "Contracts in Progress": PROJECT NAME: WESTVIEW MIDDLE SCHOOL- REMODELING & RENOVATION OWNER: Miami-Dade County Public Schools, Blanca Bazan (305)995-4538 ARCHITECT: LIVS and Associates CONSTRUCTION COST: $4,788,300 START/COMPLETION: 10/01 to 10/03 DESCRIPTION OF PROJECT: Addition, renovation and remodeling of an existing middle school with very stringent phasing requirements and time frames. The project consists of three phases. The first phase is a new building with classrooms and a media center, as well as a new parking lot. The second phase consists of the renovation and remodeling of a one-story building with a courtyard, classrooms, locker rooms, band room, and shop class. The third phase is a two-story building with a parking lot, classrooms, auditorium and an immediate phasing that consists of remodeling a cafetorium during summer break. The remodeling and renovation includes: asbestos abatement, architectural, electrical and mechanical demolition. The Instant Project In or about July of 2002, the School Board issued a Request for Qualifications for Design-Build Firms for "State School 'MMM' 1600 Student Station Addition at: Miami Coral Park Senior High School (Project No. A-0746)" (RFQ). In a design-build project like the Instant Project (in contrast to the "traditional bid contract scenario"), the School Board enters into a single contract (with a design-build firm) for both the design and construction components of the project.6 In the Legal Advertisement that was part of the RFQ, the School Board announced that it "intend[ed] to pre-qualify three (3) to six (6) design-build firms to subsequently invite them to bid" on the Instant Project and further stated, in pertinent part, the following: Firms and companies desiring to participate in the design-build pre-qualification process shall submit an original qualification proposal and eight copies . . . . * * * If the applicant is a joint venture, an executed copy of the joint venture agreement must be submitted with the application. Percentages of participation of fees must be clearly stated for each joint venture partner. Only one submittal will be accepted per applicant, either as a single prime or as part of a joint venture. Firms or companies desiring to participate in this contract must have been pre- qualified by the Board, in accordance with Board rule for Pre-Qualification of Contractors for Educational Facilities Construction, prior to submitting their proposal for this advertisement. . . . The General Requirements portion of the RFQ provided, in pertinent part, as follows: In order to be considered, proposers must meet the following basic requirements: * * * A pre-proposal conference will be held . . . . Attendance is highly encouraged. This will be the only opportunity to present questions regarding the proposal. Written questions may be forwarded to Mr. Ivan M. Rodriguez, R. A., . . . and said questions will be answered at the pre-proposal conference. Questions and answers will be distributed to attendees. Proposers must be authorized to do business in the State of Florida and must possess all required registration, certification and licenses (including design and construction) in accordance with all applicable Florida Statues, ordinances, regulations, and/or Board Rules. A joint venture, including a joint venture composed of qualified business organizations, is itself a separate and distinct organization that must be qualified in accordance with Board Rules and Florida Statute 489.119(2)(c). Proposers must have been in business for a period of no less than five years. In the event of a joint venture or a newly formed company, at least one of the entities of the joint venture or principal of the newly formed company must have been in business for a period of no less than five years. Any proposer, firm or company desiring to participate in this process must not have as a part of its team an A/E firm presently under contract with the Board for a specific project and a General contractor for the same project. The Board considers this a conflict of interest and such proposals will not be considered for award of a contract under this Request for Qualifications. * * * M. MDCPS reserves the right to reject any proposal, to waive technicalities, or to accept the proposal that, in its sole judgment, best serves the interest of Miami-Dade County Public Schools. * * * Failure to file a protest within the time prescribed in §120.57(3), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Any questions concerning this RFQ should be directed to the Department of A/E Selection, Negotiations & Design Management; attention, Mr. Ivan M Rodriguez, R. A. Director at . . . . The Pre-Qualification Process portion of the RFQ provided, in pertinent part, as follows: Intent: To pre-qualify between three (3) to six (6) design-build firms to subsequently invite them to bid on the following project: State School "MMM" 1600 Student Station Addition @ Miami Coral Park Senior High School (Preliminary estimated Construction Cost- $17,473,890) 8865 S.W. 16th Street, Miami, Florida 33165 Project No.: A0746 The selected proposer will be placed on a list of qualified bidders for bidding on design-build services for the above project. * * * C. Pricing The selected proposers will be allowed to bid the above listed project[], under a competitive bid process, based on design criteria established by a Design Criteria Professional under contract by MDCPS. The Evaluation/Scoring Process portion of the RFQ provided, in pertinent part, as follows: All proposers will be evaluated based on information presented in their submittals, utilizing the Board approved "Procedure[] for [] Selection of Design-Build Firms" dated January 5, 1994 (Updated March 10, 1999) . . . . The "Procedure[] for [] Selection of Design-Build Firms" referenced in this portion of the RFQ provided, in pertinent part, as follows: I. SELECTION PROCESS: INTENT To select Design-Build firms for bidding on each DCPS Design-Build project identified. Selected proposers will be placed on a list of qualified bidders for bidding on each DCPS Design-Build project as advertised. SCHEDULE: Dates for the items listed below shall be projected and become part of future Request for Proposals (RFP) advertisement. Board Review Mailing Advertisement Proposal Submittal Deadline Evaluation Interviews Bid on Design-Build Projects Award of Design-Build Project * * * PRICING: Selected proposers will be allowed to bid each Design-Build project identified under a competitive bid process. * * * EVALUATION/SCORING PROCESS: All proposers will be evaluated based on information presented in their submittals . . . . SCORING The evaluation/scoring process will be conducted in two steps. First, staff shall evaluate all factors in the Initial Screening section of Form-1 . . . . Second, the Selection Committee shall evaluate all factors contained in the Interview section of Form-1 . . . . The evaluation/scoring process shall be as follows: INITIAL SCREENING All proposers will undergo an initial screening process conducted by staff where they will be evaluating the proposer[]s' qualifications. The proposers will be evaluated by staff utilizing Form-1 . . . ; maximum score in this category is 115 points. Proposers that do not comply with the RFP will not be accepted and shall be duly notified. INTERVIEWS All proposers that comply with the RFP shall be contacted to schedule interviews by the Selection Committee. The Proposers will be evaluated by each of the members of the Selection Committee utilizing Form-1 . . . . The maximum score in this category is 115 points. RANKING Both the initial screening score and the interview score will be added, and the sum of both scores will determine the ranking of all proposers. The highest and lowest of the seven (7) total scores for each proposer will be dropped, and an average taken of the remaining five (5), to determine total score and ranking. Three (3) or more firms will be selected as eligible to bid on the project advertised. The Board shall have the right to make exceptions to this procedure when valid public emergency conditions warrant. INSTRUCTIONS FOR USE OF DADE COUNTY PUBLIC SCHOOLS DESIGN-BUILD SERVICES SELECTION-FORM 1 * * * INITIAL SCREENING (115 POINTS TOTAL) From the proposer's response to the RFP, staff will objectively evaluate the firm's abilities in accordance with those criteria listed below (Scores for each applicant will be based on comparison with all other applicants): * * * C. ARCHITECTURAL ENGINEERING DESIGN (30 POINTS): Submit General Services Administration Standard forms 254 (one for each discipline) and 255 (one for entire team), which best describes the proposed architectural/engineering design team. . . . * * * INTERVIEWS After the proposers have been evaluated based on their written applications, they will be invited to make a presentation to the Selection Committee on their approach to perform Design-Build projects for DCPS. . . . * * * The Submittal Requirements portion of the RFQ provided, in pertinent part, as follows: Note: Please refer to Pages 4-9 of the "Procedure[] for [] Selection of Design- Build Firms" attached hereto as Exhibit "C" of this RFQ, for additional information on the following items: * * * E. Architectural/Engineering design- Submit Forms 254 and 255 for A/E team members only. Identify the architect's experience in design-build, the A/E team's experience with DOE codes, MDCPS design criteria/standards, master specifications, educational specifications and furniture, fixtures and equipment. Describe the A/E team's design coordination and quality control systems. * * * P. State of Florida licenses (design and construction)- Provide current copy of State of Florida registration and licenses for proposer and all its professional consultants. * * * R. Contractors Pre-qualification Certificate- Provide current copy of MDCPS Contractor Pre-qualification Certificate. Proposers must have a valid certificate with a minimum of $17,473,890 single project capacity, in order to be considered. * * * The pre-proposal conference referenced in the RFQ was held on July 25, 2002. Attendees were given a written document which contained, among other things, the following questions (that had been submitted in advance of the conference) and answers (that had been given to these questions by "staff"): QUESTION Can an A/E firm presently under contract with the Board for a specific school project, join with the general contractor for the same school project and present a proposal. ANSWER No! The Board views this as a conflict of interest and will not consider such entities. QUESTION Can one firm submit two different proposals, one as a single prime firm and the other as part of a joint venture? ANSWER No! The legal advertisement is very specific to this issue and will only allow one submittal per applicant, either as a single prime firm or as part of a joint venture. QUESTION Can A/E firms presently under contract with the Board as term consultants participate in a design-build entity submitting a proposal? ANSWER Yes! Staff does not see any conflict with this situation. The Board, at their meeting of April 1994, has ruled that neither a direct nor an implied conflict exists. Question: Will there be a design evaluation at the time of bidding in determining the successful bidder? ANSWER No! The successful bidder will be determined based on the bid process. All bidders are to comply with the design criteria bidding documents. However, during the selection process, we will be evaluating the design approach to this project. Question: The RFP [sic] requires the applicant to be authorized to do business in the State of Florida as a design-build entity; however, when we called the State there is none available. What do we do? ANSWER You must comply with all State requirements including required registration and licenses (Design & Construction) in accordance with Florida law. It is your responsibility to comply. MCM was among those that submitted a qualification proposal in response to the RFQ (MCM's Qualification Proposal). MCM's Qualification Proposal was accompanied by a cover letter, dated August 1, 2002, from its President, Jorge Munilla, which read, in pertinent part, as follows: MCM is pleased to submit our qualifications to provide Miami Dade County Public Schools with Design-Build Service for State School MMM * * * MCM has substantial experience with the Design-Build process as it relates to constructing educational facilities. We have assembled a team of professionals that will deliver the quality and cost efficiency required by Miami Dade County Public Schools. The team includes: PJB Associates, who[] will provide architectural services; Bliss & Ny[i]tray, [who] will supply structural engineering requirements; Fortin, Leavy, Skiles, Inc., [who] will provide civil engineering services; LIVS [and] Associates,[7] [who] is providing mechanical, electrical, plumbing and fire protection consulting expertise; and the talented firm of Rosenberg Design Group, [who] will provide Landscape Architecture design. It is significant that our team members have all participated in Design- Build projects for Miami Dade County Public Schools and therefore are acquainted with the unique relationship which it necessitates. The MCM Design-Build team will deliver the cost effective construction, timely delivery, and quality design goals that are required by Miami-Dade County Public Schools. The information that follows this letter details precisely how the MCM team will satisfy these project objectives. * * * MCM's Qualification Proposal contained a Proposer's Profile, which provided, in pertinent part, as follows: TOTAL NUMBER OF YEARS IN BUSINESS MCM Corp. is confident that our team, if selected for this project, will execute the contract and deliver functionally effective facilities in concert with M-DCPS staff. The project team and our organization are structured in such a manner as to provide clear-cut lines of communication and accountability. . . . MCM Corp. has learned that a critical factor in the achievement of project goals is the selection of a project team that has the technical knowledge and experience to deliver. The following lists the principal occupation of each member of the design- build team, their occupational license number, and the number of years they have been engaged in that practice. Team Members License Years in Business MCM Corp. General Contractors CG C023834[8] 19 PJB Associates, P.A. Architects AA 0003085[9] 5 Fortin, Leavy, Skiles, Inc. Civil Engineering 3653 19 Bliss & Nyitray, Inc. Structural Engineering 674 39 LIVS Associates MEP EB 0004134[10] 17 Rosenberg Design Group Landscape LA 0000143 31 Also included in MCM's Qualification Proposal were Standard Forms (SFs) 254 (Architect and Related Services Questionnaires) for PJB Associates, P.A. (PJB); Fortin, Leavy, Skiles, Inc. (Fortin); Bliss & Nyitray, Inc. (Bliss); LIVS; and Rosenberg Design Group (Rosenberg); and an SF 255 (Architect and Related Services Questionnaire for Specific Project) completed by PJB as MCM's proposed Project Architect (or A/E of Record). Under the arrangements that had been made, if MCM were the successful bidder on the Instant Project, it would enter into an agreement for design services with PJB and PJB, in turn, would retain the services of Fortin, Bliss, LIVS, and Rosenberg (as sub-subcontractors/sub-subconsultants on the project, having no direct contractual relationship with MCM) to assist it in fulfilling its contractual obligations to MCM. The SF 254 for LIVS was filled out by Hector Vergara, the partner that is "in charge of all [the firm's] mechanical work, and it lists the Westview Project as an "example" of the projects the firm has done in the "[l]ast 5 [y]ears." According the form, the "[c]ost of [LIVS'] [w]ork" on the Westview Project was $6,800,000.00 and the "[c]ompletion [d]ate (. . . [e]stimated)" of such work was "2003." The SF 255 reflected that Fortin, Bliss, LIVS, and Rosenberg would be "consultants" to PJB on the Instant Project in the "[s]pecialit[ies] of "[c]ivil [e]ngineering," "[s]tructural engineering," "[m]echanical/[e]lectrical/ [p]lumbing/[f]ire [p]rotection," and [l]andscape [a]rchitect[ure]," respectively, and it contained "brief resumes" of "key persons" from these entities who would be working on the project. Among these "brief resumes" were those of Mr. Vergara and Arnold Leon of LIVS, which indicated that they both had done work on the Westview Project. Among the other documents that were part of MCM's Qualification Proposal were the "job descriptions" and "resumes" of MCM personnel who would be assigned to the Instant Project, including Fernando Munilla (a principal of MCM), Alexis Leal (MCM's Vice President of Purchasing), and Riccardo Salani (an Estimator-Scheduler with MCM). Fernando Munilla's, Mr. Leal's, and Mr. Salani's resumes each listed the Westview Project as one of the projects on which they had worked. This was not the first design-build project solicitation of the School Board's to which MCM had responded. It had, "several months before," submitted a qualification proposal in response to the School Board's Request for Qualifications for Design-Build Firms for State School "FF,"11 which contained the same General Requirements, including paragraph G., as the RFQ in the instant cases. As in the instant cases, PJB was MCM's proposed Project Architect (or A/E of Record) on the State School "FF" project. TLC Engineering (TLC) was the original proposed MEP (mechanical/electrical/ plumbing) sub-subcontractor/sub-subconsultant. After MCM had submitted its qualification proposal, however, MCM and PJB wanted to replace TLC with LIVS as the proposed MEP sub- subcontractor/sub-subconsultant. When School Board staff (Ms. Bazan, Carlos Hevia of Capital Construction, and Ivan Rodriguez of the Department of A/E Selection, Negotiations and Design Management) were asked whether such a substitution could be made, they indicated that it would be "no problem."12 MCM therefore assumed, when it submitted its Qualification Proposal in the instant cases, that its proposing LIVS as an MEP sub- subcontractor/sub-subconsultant would not result in MCM's disqualification from further consideration pursuant to paragraph G. of the General Requirements of the RFQ, notwithstanding that LIVS was the School Board's A/E of Record on the Westview Project and MCM was the "completion contractor" on that same project (the identical roles LIVS and MCM had had at the time MCM was competing for the State School "FF" design- build contract). Following the review and evaluation of the qualification proposals that had been submitted in response to the RFQ in the instant cases, the School Board posted an "official interview schedule," on which the competing "design- build firms'" "initial screening scores" were announced. These scores were as follows: 105.50 for SBR; 103.50 for James Pirtle Construction Company (Pirtle); 98.00 for Betancourt Castellon Associates, Inc. (Betancourt); 93.00 for MCM; and 77.50 for the Beck Group (Beck). This "official interview schedule" also contained the following "notes": NOTE 1: Each firm must bring all equipment necessary to conduct its presentation. NOTE 2: The initial scores shall be cumulative to the interview scores. The final ranking for each firm shall consist of the initial score plus the interview score. NOTE 3: The following firm has withdrawn from the interviews: The Haskell Company Prior the first scheduled interview, Beck withdrew its proposal, leaving only four proposers to compete for award of the contract for the Instant Project. The determination was thereafter made to "pre-qualify" for bidding all of the remaining proposers without conducting the scheduled interviews. The evidentiary record does not reveal that anyone protested this "pre-qualif[ication]" decision; however, neither does it reflect that the School Board gave notice of the opportunity any adversely affected persons13 had to file such a protest and of the consequences of their not taking advantage of such opportunity. Following this "pre-qualif[ication]" decision, the proposers were provided copies of the Criteria Documents (or design criteria package) that had been prepared for the Instant Project. Volume I of the Criteria Documents contained, among other things, an Instructions to Bidders, a List of Subcontractors Form, Special Provisions for Compliance with M/WBE, General Conditions of the Design-Build Contract, and General Requirements. The Instructions to Bidders provided, in pertinent part, as follows: INSTRUCTIONS TO BIDDERS * * * The Instructions to Bidders, General Conditions of the Design-Build Contract, Special Conditions for Design-Build Projects and all other documents and sections, listed in the Specifications under the Bidding Requirements, apply equally to each Section and Division of the Specifications. All sections of the Criteria Documents are complementary and are part of the contractual requirements. 2.7.1 Board reserves the right to waive informalities and irregularities in a proposal, to reject any bid that shows omissions, alterations or additions not called for in the Criteria Documents and to reject any bid containing conditions or unauthorized alternate bids. * * * 2.8.1 A bid may not be modified, withdrawn or canceled by the bidder during the stipulated time period following the time and date designated for the receipt of bids and the bidder so agrees in submitting the bid. * * * 3.2.2 When notified by Criteria Professional, prior to or after Award of Contract by Board, the successful bidder shall meet with representatives of Board at MDCPS/DCP/DB "Kick Off" meeting. At that time, the successful bidder shall bring the Design Build Team whose work is highly crucial to the completion of the Work. . . . The List of Subcontractors Form contained the following directions: This list of subcontractors shall be submitted to the Section of Contract Management, 155, N.E. 15th Street, Miami, Florida, 33132, no later than the end of the second working day after award, i.e., for bids awarded on Wednesday, list shall be submitted by 4:30 p.m. on Friday. If the list of subcontractors is not submitted as requested, the Board may initiate action which will result in rescinding the award. Subcontractor as used herein shall be defined in Florida Statute 713.01(16)- Subcontractor means a person other than a material supplier or laborer who enters into a contract with the contractor for the performance of any part of such contractor's contract. For each subcontract listed below, the bidder shall name the subcontractor or list the bidder's firm if he/she proposes to do the work. The cost of work as quoted by the subcontractor shall be listed. If the name of a subcontractor is deleted or added, the owner shall be notified immediately along with the justification for the change. The Special Provisions for Compliance with M/WBE provides, in pertinent part, as follows: Subcontractor/Subconsultant- A person other than material person or laborer who enters into a contract with a contractor for the performance of any part of such Design Builder's contract. Design or other required consultant services contracted for, in the performance of this contract will be considered as a Subcontractor. . . . The General Conditions of the Design-Build Contract provided, in pertinent part, as follows: General Conditions of the Design Build Contract * * * 1.1.2 The Contract The Contract represents the entire integrated agreement between the parties hereto and supercedes prior negotiations, representations or agreements, either oral or written. The Contract may be amended or modified only by a Modification. The contract shall not be construed to create a contractual relationship of any kind (1) between the Board and a Subcontractor or Sub-subcontractor, or (2) between any persons or entities other than the Board and the Design-Build Contractor. The Contract Documents include the Criteria Documents and the approved Construction Documents. * * * 3.1.1 The "Design-Build Contractor" is the person, firm or corporation authorized to do business in the State of Florida and properly licensed or registered for the work to be performed with whom the Contract has been made with the Board for the performance of the Work described in the Criteria Documents. "Contractor" refers to a third party Contractor. * * * 3.3.2 The Design-Build Contractor shall be responsible to the Board for acts and omissions of the Design-Build Contractor's employees, Subcontractors and their agents and employees and other persons performing portions of the Work under the Contract and shall be responsible to the Board for coordination and complete execution of the Work in accordance with the Contract. * * * 3.3.6 The Design-Build Contractor shall enforce strict discipline and good order among its employees and other persons carrying out the Contract including its Subcontractors and Sub-subcontractors. . . . * * * 3.9.2 During the Construction Phase, the Design-Build Contractor shall employ a competent, full time, on-site Superintendent, the Design-Build Contractor's A/E of Record Representative, who participated at least fifty percent (50%) of his/her time during the Design Phase, and shall be on site at a minimum of 50% of the working hours of each week. An M/E/P coordinator and necessary assistants shall be in attendance at the job site during the performance of the Work. . . . The Design-Build Contractor's A/E of Record on-site Representative shall not be used for checking shop drawings. The Superintendent, the Design-Build Contractor's A/E of Record Representative, M/E/P Coordinator and the major Subcontractor's Superintendents shall be fluent in English. * * * 3.12.1 Shop drawing are drawings, diagrams, schedules and other data specifically prepared for the Work by the Design-Build Contractor or a Subcontractor, Sub- Subcontractor, . . . to illustrate some portion of the Work. The Design-Build- Contractor, Subcontractor, Sub- Subcontractor, . . . shall not use the Design-Build Contractor's A/E of Record contract drawings as shop drawings, but the Design-Build Contractor shall require these entities to produce and submit such documents independently. * * * 3.18.1 The Design-Builder shall negotiate a fair and equitable agreement with each of the Architect/Engineer consultants listed in the Design-Builder's response to the request for qualifications for this project. The Design-Builder may choose additional A/E consultants, for which prior written notice to Board shall be given, but shall not terminate or replace those A/E consultants originally designated without the prior written approval of the Board. When requesting termination or replacement of A/E consultants, the Design-Builder must submit the following items: Letter requesting written Board approval of the action, stating clearly the reason for such request and the proposed replacement A/E consultant(s). Signed and sealed or notarized release from the A/E consultant(s) being replaced or justification acceptable to the Board that such release is not obtainable. Federal Standard Form 255 and 254 of the proposed A/E consultant(s). Site specific professional liability insurance incorporating the proposed A/E consultant(s) in the policy. A hold harmless clause signed and notarized . . . . * * * 4.1.1 The Board's Representative (also referred to as the "Design Criteria Professional" or "DCP") will provide administration of the Contract as described in the Criteria Documents . . . * * * 4.2.6 The DCP will review and approve or take other appropriate action upon Design- Build Contractor's submittals, previously approved by the Design-Build Contractor's A/E of Record such as Shop Drawings, Product Data and Samples, for conformance with the information given and the design concept expressed in the Criteria Documents. . . . * * * 4.2.12 The Design-Build Contractor and Design-Build Contractor's A/E of Record shall provide DCP which will confirm completeness and correctness of same and forward to Board for Board's review and records, the written documents required by the Contract to be provided such as Warranties, Operation and Maintenance Manuals, as-built drawings, releases of claim and other documents required of the Contract. The DCP will process any pending Change Order requests and evaluate the assessment of liquidated damages, if any. Upon its determination that the Design-Build Contractor and Contractor[']s A/E of Record has fulfilled the requirements of the Contract, the DCP will issue a final Certificate for Payment. * * * A Subcontractor is a person or entity other than a materialman or laborer who enters into a subcontract with the Design- Build Contractor for the performance of any part of the Design-Build Contractor[']s Work. The term "Subcontractor" is referred to throughout the Contract as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor (sometimes referred to as a "third party contractor" ) or subcontractors of a separate (third party) contractor. A Sub-subcontractor is a person or entity other than a materialman or laborer who enters in to a sub-subcontract with a subcontractor for the performance of any part of such subcontractor's contract. The term "Sub-Subcontractor" is referred to throughout the Contract as if singular in number and means a Sub-subcontractor or any authorized representative of the Sub- subcontractor. The term "Sub-subcontractor" does not include separate subcontractors of a third party contractor. All Subcontractor's shall be licensed and/or certified as required by the Florida Building Code and state statutes. Separate permits may be required including but not limited to electrical, plumbing, mechanical, and roofing work. * * * As stated in the Instructions to Bidders, the Design-Build Contractor shall furnish in its proposal to Board the list of Subcontractors, Sub-subcontractors and materialmen (including those who are to furnish materials or equipment fabricated to a special design) proposed for each principal portion of the Work . . . . If Board has a reasonable objection to any proposed Subcontractor, Sub- subcontractor or materialman, Board will promptly notify Design-Build Contractor. The Design-Build Contractor shall not contract with any proposed Subcontractor, Sub-subcontractor or materialman to whom Board has made a reasonable objection pursuant to Subparagraph 5.2.2. If Board has a reasonable objection to a Subcontractor, Sub-subcontractor or materialman, the Design-Build Contractor shall propose another to whom the Board has no reasonable objection. A Subcontractor, Sub-subcontractor or materialman may be added to the list of Subcontractors, Sub-subcontractor[s] or materialmen if required for performance of Change Order Work. A listed Subcontractor, Sub-subcontractor or materialman may be changed only upon written approval of the Board. The request to change shall state reasons for the request and shall be accompanied by a signed and notarized release from the listed Subcontractor or Contractor's Affidavit to Board that such a release is not obtainable. * * * The General Requirements include Procedural Requirements, Subsections 2.03 and 9.01 of which provide as follows: 2.03 DESIGN-BUILDER ("D-B") D-B shall appoint its D-B Project Manager which is D-B's representative for the Project. The collective management of D-B services, including D-B'[s] architect, engineers and other consultants, is to be vested in D-B Project Manager. D-B Project Manager is the representative of D-B and all communications are to be through him/her to DCP and M-DCPS Project Manager. D-B Project Manager's role does not preclude the involvement of D-B's architect, engineers and other consultants. The architects, engineers and other consultants with responsibility for different aspects of the Project are to attend appropriate meetings but this must be coordinated with D-B Project manager. 9.01 PRE-CONSTRUCTION CONFERENCE Prior to beginning construction, DCP (through PM) shall schedule a Pre- Construction Conference. Ten (10) days notice is required for the meeting. At minimum, the following parties shall attend: DCP Team (DCP) Design-Builder Team (D-B) PM Major Subcontractors Region Superintendent Principal BCC Representatives Testing Lab Consultant HVAC Test & Balance Consultant H. Others as applicable. * * * Section 01012 of the General Requirements discusses the Project Architect. It provides as follows: PROJECT ARCHITECT (Also referred as Architect/Engineer of Record or D-B'[s] A/E. The Project Architect (A/E of Record) is a Principal, Partner, Agent, Subcontractor or Employee of the Design-Builder,[14] and is the person lawfully licensed to practice Architecture and Engineering or an entity lawfully practicing Architecture and Engineering identified as such in the Contract; and is referred to throughout the Criteria Documents as is singular in number. The term Architect/Engineer of Record means the Architect/Engineer of Record or its authorized representative. Whenever the terms Design-Builder's A/E or A/E is used throughout the Criteria Documents, it refers to the Project Architect. DUTIES AND RESPONSIBILITIES OF THE PROJECT ARCHITECT The Project Architect shall have all the duties and responsibilities established under the applicable State Statutes regulating the professions of Architects and Engineers. The Project Architect shall employ a Project Manager and necessary assistants, and shall be responsible for managing all design and production of Design and Construction Documents and the coordination of its implementation during the construction. The Project Architect shall review and approve or take other appropriate action upon Subcontractor submittals, such as Shop Drawings, Product Data and Samples prior to their submittal to the DCP for approval. The Project Architect shall consult with the DCP concerning all items related to the design and production of the Construction Documents. The Project Architect shall be responsible for the preparation of the Record Drawings. Prior to Design-Builder's request for determination by DCP of substantial completion, the Project Architect shall determine, on his/her own, that the Project has achieved substantial completion. The Project Architect shall inspect the work and provide, through the Design-Builder, a punchlist of all items to be completed or corrected. Upon receipt of request for determination of substantial completion from the Design-Builder, the DCP shall proceed to determine if the work is ready for inspection as provided under the General Conditions. All four remaining proposers, MCM, SBR, Pirtle, and Betancourt, submitted sealed bids. The bids were opened on December 17, 2002, and subsequently tabulated. MCM had the lowest "base bid" ($17,673,600.00). SBR had the second lowest "base bid" ($18,037,446.00). Betancourt's and Pirtle's "base bids" were $18,269,000.00 and $19,540,000.00, respectively. Following the tabulation of bids, School Board staff recommended to the members of the School Board that the contract for the Instant Project be awarded to MCM as the lowest bidder. On February 6, 2003, SBR, through counsel, filed a notice of protest with the School Board, which read as follows: This firm represents SBR Joint Venture, who as you know, has submitted a proposal for construction of the above-referenced [p]roject [the Instant Project]. It has come to our attention that MCM Corp. ("MCM") who submitted a proposal to provide design build services for the above- referenced project, must be disqualified from further consideration in connection with an award of the Project due to MCM's failure to comply with general requirements as promulgated by the Miami-Dade County Public Schools relative to the Project. Specifically, item I G of the General Requirements mandates that: " Any proposer, firm or company desiring to participate in this process must not have as a part of its team an A/E firm presently under contract with the Board for a specific project and a General [c]ontractor for the same project." As disclosed by MCM in its proposal to construct the [p]roject, MCM is currently performing substantial work connection with another project known as the Westview Middle School-remodeling and renovation ("Westview"). The architect under contract with the School Board regarding the Westview Project is LIVS and Associates. In conflict with the qualification general requirements, MCM's proposal to construct school MMM contemplates the formation of a design build team which will include LIVS and Associates, as its mechanical, electrical, plumbing and fire protection consulting engineers. As such, the proposal by MCM is violative of the requirements of design/build firms in order to qualify for the Project. Back-up documentation including, but not limited to, material portions of the request for qualifications and disclosures by MCM are attached for your review. Under the circumstances, we respectfully request that MCM be disqualified from performing any services in connection with [p]roject and the second [lowest] bidder, which is SBR Joint Venture, be awarded the Project. MCM responded to SBR's notice of protest by letter dated February 10, 2003, in which it argued that SBR's protest was without merit and "should be dismissed" and further stated, among other things, the following: The Contract documents permit[] the board to waive all irregularities. If the board were to consider that Ivan Rodriguez, Carlos Hevia and Blanca Bazan[15] misspoke on behalf of MDCPS when they approved LIVS as part of the MCM Design Build team, and or if the board were to consider the inclusion of LIVS as part of the Design Build Team as a conflict, then if that be the case, by this letter MCM hesitantly tenders substitution of LIVS (who has graciously agreed), with SDM Consulting Engineers, Inc., who is also fully qualified, has had extensive experience with DCPS and has agreed to take on the challenge. The members of the School Board were scheduled to vote at their February 12, 2003, meeting on staff's recommendation to award the contract for the Instant Project to MCM, but the "item [was] tabled" because of the pendency of SBR's protest. At the meeting, the School Board Attorney told the School Board members that he had "reviewed [SBR's] protest with staff and [they had] come to the conclusion that [they did not] agree with [SBR's] position," explaining, in part, as follows: The language [of paragraph G. of the General Requirements of the RFQ] is interpreted that if you have the A/E and the general contractor, who are under contract with the board on the same project, that is considered a conflict. In this particular instance, you have a third element here. One, is that the bonding company took over this project and the bonding company brought MCM in as a subcontractor, if you will, a completing contractor here in this particular instance. So, it was never the intent of this language to cover a situation other than one where you had both the A/E and the general contractor under contract with the board. Construing the language of paragraph G. of the General Requirements of the RFQ (which is not clear and unambiguous on its face) as not "cover[ing] [the] situation" present in the instant cases is not at all unreasonable. Because it has a contract with the Surety and not the School Board, MCM is not the Westview Project's "General contractor"16 as that term is typically used in the construction industry.17 Since there is no language manifest in the proposal/bid solicitation documents in evidence which compels the conclusion that, for purposes of the solicitation, this accepted industry meaning of the term was not intended, it is entirely appropriate to rely on this meaning and find, as did School Board staff, that MCM's role in the Westview Project does not disqualify its proposal from consideration under paragraph of the General Requirements of the RFQ.18 Moreover, even if it could not be reasonably disputed that MCM was the Westview Project's "General contractor" within the meaning of paragraph G. of the General Requirements of the RFQ (which, as noted above, is not the case), MCM's proposed use of LIVS on the Instant Project would still not, under every reasonable interpretation of the paragraph, create a "conflict of interest" of the type the paragraph prohibits. It is not beyond reason, particularly when the provisions of the Criteria Documents are considered19 (most significantly, Subsection 3.18.1 of the General Conditions and Section 01012 of the General Requirements), to conclude that an "A/E firm" on the design- build "team," within the meaning of paragraph G., does not refer to an entity, like LIVS, that is neither the design-builder seeking the contract for the Instant Project, a member of such a design-builder (where it is joint venture or partnership), the design-builder's proposed "Project Architect" as described in Section 01012 of the Criteria Documents' General Requirements (who is also referred to therein as the "Architect/Engineer of Record" or "A/E"), nor any other Architect/Engineer consultant with whom the design-builder intends to contract in accordance with the requirements of Subsection 3.18.1 of the Criteria Documents' General Conditions, but rather is merely a proposed MEP sub-subcontractor/sub-subconsultant (that is, a third-tier contractor). The evident purpose of paragraph G. of the General Requirements of the RFQ is to avoid a situation where a firm acting as the School Board's A/E of Record on another School Board project let under the "traditional bid contract scenario" is inclined to deal with the "General contractor" on that project in a lax manner compromising the School Board interests because of a relationship the firm has with that "General contractor" on the Instant Project.20 The chance of this happening if the firm were merely a third or lower tier contractor on the Instant Project would be remote, so remote that it is reasonable to believe (as John Pennington, the School Board's Director for Construction Compliance, who was "intimately involved in making [the language in paragraph G.] the final language," credibly testified) that it was not the School Board's intent, in including paragraph G. in the General Requirements of the RFQ, to eliminate a potential competitor based on this possibility.21 Had the School Board intended otherwise, it could have made its intent clear and unmistakable by having the first sentence of paragraph G. read as follows: "Any proposer, firm or company desiring to participate in this process must not propose to have working on the instant project in any capacity, including as a third or lower tier contractor, both a firm that is presently serving under a contract with the Board as the Board's A/E of Record on another project and a firm that is a General contractor for that same project." It did not do so, however. Instead, it used language in paragraph G. reasonably susceptible to the interpretation that, under this provision, proposing to use as an MEP sub-subcontractor/sub- subconsultant on the Instant Project a firm that is the School Board's A/E of Record on another project does not disqualify a proposer even if the proposer is the "General contractor" for that other project. Following the School Board meeting, SBR, on February 16, 2003, filed its formal written protest of the intended decision to award the contract for the Instant Project to MCM. On February 18, 2003, Fernando Munilla sent a letter to School Board member Dr. Marta Perez, which read, in pertinent part, as follows: MCM has been informed that unfortunately MCM's response to SBR's bid protest was not provided to you prior to the February 12, 2003, Board meeting. We enclose same for your ready reference. We respectfully request you inquire on the particulars raised in our letter, and if you agree with your staff's recommendation (that SBR's alleged irregularity in MCM's bid lacks [sic] merit), then we ask you move the Board to exercise its right to waive the alleged irregularity, as permitted by the bid documents under section 00100 page 4 subsection 2.7.1 in order that MCM continue to work on the project. On March 4, 2003, the School Board Attorney sent a memorandum to the Superintendent of Schools advising that upon further review of the matter he had changed his opinion and was now of the view that SBR's protest had merit, explaining in the memorandum as follows: This specification [paragraph G. of the General Requirements of the RFQ] prohibits a proposer from having as a part of its Design-Build team an Architect/Engineer (A/E) firm who is under contract with the Board for a specific project and General Contractor for the same project. The specification provides that the Board considers this a conflict of interest and such proposals would not be considered for award of the contract. MCM submitted a proposal which has LIVS [and] Associates, an A/E firm under contract for the Westview Middle School project as part of its team. MCM is the General Contractor on the Westview Middle School project under a contract with the surety company to complete the project as the completing contractor. MCM contends that in view of the fact that they are the completing contractor and are not in direct contract with the Board for the project, this particular provision should not apply. We disagree. The particular specification in question does not specify or require that the general contractor for the same project be under contract with the Board. Conflict exists by virtue of the fact that the A/E, acting on behalf of the Board for the Westview Project, has to inspect and review the work of MCM and, with this proposal, will be in business with MCM on another Board project. Accordingly, MCM's proposal should not have been considered for award. While it is true that, in paragraph G. of the General Requirements of the RFQ, the School Board did not include the words "under contract with the Board" after "General contractor," if it intended that "General contractor," as used in paragraph G., have the same common meaning as the term has in the construction industry (and there is no language in the proposal/bid solicitation documents in evidence compelling the conclusion that it did not have such an intent), these additional words would have been redundant because, as noted above, a "General contractor," as that that term is typically used in the construction industry, is necessarily one who is "under contract" with the owner. Furthermore, contrary to the suggestion made by the School Board Attorney in his March 4, 2003, memorandum, under MCM's proposal, MCM and LIVS would not have a direct business relationship22; rather, LIVS would be doing business with PJB.23 While LIVS' participation (as a third-tier contractor) in the Instant Project with MCM may create a potential "conflict" for LIVS, this potential "conflict," at least arguably, is not the type that is prohibited by paragraph G. of the General Requirements of the RFQ. On March 11, 2003, MCM and PJB sent the following letter to the School Board: This letter will serve as our formal request to replace the engineering firm of LIVS originally selected for State School MMM [with] SDM Consulting Engineers in which MCM's architect of record, PJB Associates, P.A., had entered LIVS as their mechanical and electrical consultants for the above referenced project [the Instant Project]. Even though we consider LIVS to be an excellent engineering firm, d[ue] to an alleged conflict of interest that is said to exist, we are respectfully requesting replacement to prevent controversy.[24] We also request that you submit this to M- DCPS's Legal Department to verify if there is any conflict; and if so, we respectfully request a written reply. In the absence of a reply within the next three working days, we will assume that this issue has been resolved. Thank you in advance for your attention. Also on March 11, 2003, MCM, anticipating that it would not be awarded the contract for the Instant Project, sent the School Board another letter, which read as follows: This letter will serve as notice of the intent of Magnum Construction Management Corporation (MCM) to protest any decision of the Miami-Dade County School Board to reject all bids on the Miami-Coral Park Project. Based on information obtained to date, MCM will assert that the decision to reject all bids is based on the false assumption that under the terms of the Request for Qualifications, MCM was disqualified to bid on the Miami-Coral Park Project and that bids on the project were over budget. MCM will assert that it was qualified to bid on the project and that its bid was responsive and within the budget. MCM subsequently filed a formal written protest and an amended formal written protest. On March 12, 2003, the Design Criteria Professional for the Instant Project sent a letter to Ms. Bazan advising her that the three lowest bids submitted for the Instant Project "were within the budget of $17,473,891.36," and that the two lowest bids, those submitted by MCM and SBR, were "substantially below the State of Florida allowable cost per student station under the Smart Schools Clearinghouse." On March 26, 2003, the School Board referred SBR's and MCM's formal written protests to DOAH. A day later, it referred MCM's amended formal written protest to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order rejecting SBR's protest and awarding the contract for the Instant Project to MCM. DONE AND ENTERED this 1st day of August, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2003.
The Issue The issue is whether the intended award of the electrical subcontract for Phase 2 of the Comprehensive Needs Project at Oak Ridge High School (the Project) is a decision or intended decision of an "agency" as that term is defined in Subsection 120.52(1), Florida Statutes (2010).1
Findings Of Fact The School Board entered into a Standard Construction Management Contract with Wharton-Smith, Inc. (Wharton-Smith), for the Project. Wharton-Smith is a private corporation. The construction management contract provides that Wharton-Smith is to perform all work in connection with the management and construction of the Project. The work to be performed by Wharton-Smith is composed of two phases: the pre-construction phase services and the construction phase services. For the construction phase, Wharton-Smith is required to "furnish and pay for all management, supervision, financing, labor, materials, tools, fuel, supplies, utilities, equipment and services of every kind and type necessary to diligently, timely, and fully perform and complete in a good and workmanlike manner the construction of the [Project] (or designated portions thereof) in accordance with the terms and conditions of the Contract Documents." The construction management contract called for Wharton-Smith to provide the School Board with a guaranteed maximum price (GMP) proposal for the total sum of the construction management fee and the cost of the work, which included the subcontractor costs. Prior to determining the GMP, Wharton-Smith is required to competitively bid the subcontracts. The use of competitive bids is to foster competition and to select the most economical, qualified bidder to perform the work. Paragraph 36.2 of the construction management contract provides: A subcontractor is any person or entity who is performing, furnishing, supplying or providing any portion of the Work pursuant to a contract with Construction Contractor. Construction Contractor shall be solely responsible for and have control over the subcontractors. Paragraph 36.3 of the construction management contract provides: When Construction Contractor submits its guaranteed maximum price proposal to Owner, Construction Contractor also shall submit to Owner a list of the names, addresses, licensing information and phone numbers of the subcontractors Construction Contractor intends to use for each portion of the Work, as well as identifying in writing those portions of the Work it intends to perform with its own employees. The list identifying each subcontractor cannot be modified, changed, or amended without prior written approval from Owner. . . . Construction Contractor shall continuously update that subcontractor list, so that it remains current and accurate throughout the entire performance of the Work. Construction Contractor shall not enter into a subcontract with any subcontractor, if Owner reasonably objects to that subcontractor. Construction Contractor shall not be required to contract with anyone that it reasonably objects to. . . . All subcontracts between Construction Contractor and it subcontractors shall be in writing and are subject to Owner's approval. The following provisions of the construction management contract are relevant to the solicitation and award of subcontracts: The purpose of this Paragraph is to insure that Construction Contractor [Wharton-Smith] makes a genuine effort to stimulate subcontractor interest in the Project and maximize participation of potential qualified subcontractors in the bidding process. At all times Owner [School Board] shall have access to and the right to require copies of all correspondence, records, files and other bid documents (including all bid responses) with respect to the bidding process. Further, Construction Contractor shall notify Owner of the date, time and place of all bid openings and Owner shall have the right to attend any and all such bid openings. All bid openings shall be conducted in Orange County, Florida. Finally, Construction Contractor shall develop in writing subcontract bidding procedures for Owner's review and approval. Once those procedures have been approved by Owner, Construction Contractor shall not deviate from such procedures without obtaining Owner's prior written consent. * * * 37.1.2 Within thirty (30) days after execution of this Contract, Construction Contractor shall submit a written "Construction Market Analysis and Prospective Bidders Report" setting out recommendations and providing information as to prospective bidders. As various bid packages are prepared for bidding, Construction Contractor shall submit to Owner and Design Professional [architect and/or engineer] a list of potential bidders for their review and approval. Construction Contractor shall be responsible for promoting and encouraging bid competition. * * * Construction Contractor shall prepare invitations for bids and all other appropriate bid documents for all procurement of long lead items, materials and services, for subcontractor contracts and for site utilities. All such invitations for bids and bid packages shall be submitted to Design Professional and Owner for their review and approval prior to distribution to bidders. Except as hereafter provided in Paragraph 37.5, all subcontractors are to be awarded to the lowest responsive and responsible bidder. * * * 37.2.3 Subcontracts exceeding $25,000.00 must be publically advertised for at least two (2) consecutive weeks prior to the established bid opening time and date. All such bids must be in writing and shall be received and opened in the manner and at the location, date and time established in the bid documents. All such bids received by Construction Contractor shall be entered on a bid tabulation sheet and a copy of both the bids and the tabulation sheet shall be sent to Owner and Design Professional for their review and comment prior to Construction Contractor awarding the subcontract. * * * For each subcontract that exceeds $25,000, Construction Contractor shall, unless waived in writing by Owner, conduct a pre-bid conference with prospective bidders and pre-award conference with the successful bidder. Design Professional and Owner shall be invited to all such meetings. In the event questions are raised which require an interpretation of the bidding documents or otherwise indicate a need for clarification or correction of the invitation, Construction Constructor shall transmit these to the Design Professional in writing and upon receiving clarification or correction in writing from Owner or Design Professional shall issue an addendum to the bidding documents to all the prospective bidders. Notwithstanding the provision above requiring award of subcontracts to the lowest responsive and responsible bidder, Construction Contractor may award a subcontract to someone other than the lowest responsive and responsible bidder provided Construction Contractor has first received Owner's express written consent to such award. Owner's consent to any such award will be at Owner's sole discretion. Whenever Construction Contractor wishes to award a subcontract to someone who is not the lowest responsive and responsible bidder, Construction Contractor must notify Owner in writing, setting out in detail the reasons and justification for the suggested award. The subcontract for electrical work for Phase 2 of the Project was for more than $25,000. Wharton-Smith did the following in the procurement of the electrical subcontract for the Project: prepared the bid packages, advertised, issued the invitation for bids, held the pre-bid conference, collected the bids, opened and reviewed the bids, analyzed the bids for compliance with the scope of work, determined which bidder was the lowest responsive and responsible bidder, and selected the subcontractor. The bid form included in the invitation to bid provided: The Bidder understands and agrees that the Construction Manager and/or Owner reserves the right to reject this Bid or any and all bids for the Project, and to waive minor irregularities or informalities in any bid and to award Alternates in any order that in the Construction Manager's judgment will be in the Owner's best interests. This wording was prepared by Wharton-Smith without regard to the provisions of the construction management contract. Southern Atlantic had done the electrical work for Phase 1 of the Project. Southern Atlantic submitted a bid for the electrical subcontract for Phase 2 of the Project. Edwin Hutchins, the president of Southern Atlantic, was advised by David Lewis, who was employed by Wharton-Smith, that Southern Atlantic was not the lowest responsive and responsible bidder. The construction management contract provides that the School Board may review and comment on the bids that are submitted. Based on Petitioner's Exhibit 2, which is a bidder summary, the School Board did make some comments on the bids that were submitted for all subcontracts. No comments were made by the School Board concerning Southern Atlantic's bid. The School Board did not issue the invitation to bid, did not conduct the pre-bid conference, did not open the bids, and did not determine which was the lowest responsive and responsible bidder. The School Board will not be entering into a subcontract with the lowest responsive and responsible bidder for the electrical work on the Project and will not control or be responsible for the work of the subcontractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Southern Atlantic's Petition. DONE AND ENTERED this 10th day of November, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 10th day of November, 2010.
The Issue The issue in this case is whether just cause exists for the suspension and termination of the employment of Respondent, Curtis Sherrod, for failing to correct teaching deficiencies sufficient to warrant a satisfactory performance evaluation.
Findings Of Fact The Parties. Petitioner, the Palm Beach County School Board (hereinafter referred to as the "School Board"), is responsible for the operation, control, and supervision of all public schools (grades K through 12) and support facilities within the jurisdictional boundaries of the Palm Beach County School District (hereinafter referred to as the "School District"). Respondent, Curtis Sherrod, at all relevant times, was licensed by the State of Florida to teach Social Studies for grades five through 12. Mr. Sherrod's certification authorized him to teach political science, economics, psychology, U.S. history, cultures, world geography, and contemporary history. Mr. Sherrod received a Bachelor of Arts degree, with a major in history and a minor in education, from Winston-Salem State University, formerly known as Winston-Salem State Teacher's College. At all relevant times, Mr. Sherrod was employed as a classroom teacher by the School Board. He was employed initially by the School Board from 1980 to 1983. He returned to employment with the School Board in January 1993 and received a Professional Services contract in August 1996. Mr. Sherrod's Employment at Olympic Heights High School. Beginning with the 1995-1996 school year, Mr. Sherrod was employed by the School Board at Olympic Heights High School (hereinafter referred to as "Olympic Heights"). Francis P. Giblin served as principal of Olympic Heights during the times relevant to this case. Until his last evaluation for the 2001-2002 school year, Mr. Sherrod received overall satisfactory performance evaluations. For the 1999-2000, 1996-1997, and the 1995-1996, school years, Mr. Sherrod, while receiving overall satisfactory ratings, had a few "areas of concern" noted. The deficiencies in those noted areas of concern were, until the 2001-2002 school year, corrected by Mr. Sherrod. During the 2001-2002 school year, Mr. Sherrod taught a world history class. After the school year began, several letters were received by Mr. Giblin from parents expressing concern over the content of the material being taught in Mr. Sherrod's world history class and documents which Mr. Sherrod had sent home to parents.1 Mr. Giblin requested that Dr. Christine Hall, an assistant principal at Olympic Heights look into the parental complaints concerning Mr. Sherrod's class. Dr. Hall was responsible for the Social Studies department, of which Mr. Sherrod was a teacher, at Olympic Heights. Dr. Hall spoke with Mr. Sherrod about the complaints. Dr. Hall met with Mr. Sherrod on September 4, 2001, and summarized their conversation in a memorandum of the same date. See Petitioner's Exhibit 27. The complaints, however, continued, with some parents requesting a class change for their children. Dr. Hall again discussed the matter with Mr. Sherrod, but the complaints continued. In approximately October 2001 Dr. Hall began to make informal observations of Mr. Sherrod's class in a further effort to resolve the problem. Toward that end, on October 10, 2001, Mr. Giblin visited Mr. Sherrod's class.2 Dr. Hall also observed a class during which Mr. Sherrod gave a standardized examination.3 At the conclusion of the test, Dr. Hall collected the "Scantrons" and determined the grade each student should have received. These grades were then compared to the final grades given the students by Mr. Sherrod. Due to a significant number of discrepancies in the grades given by Mr. Sherrod and the grades which they should have received based upon the Scantrons, Mr. Sherrod was asked to produce the Scantrons for his other classes. Mr. Sherrod was unable to produce the requested Scantrons because he had, contrary to School Board policy, disposed of them. As a result of his failure to produce the Scantrons Mr. Giblin became even more concerned about Mr. Sherrod's performance and ordered further observations of his classes.4 On November 27, 2001, Dr. Hall informed Mr. Sherrod in writing that she intended to conduct an observation of his class sometime during the "week of December 3-7." Mr. Sherrod wrote back to Dr. Hall and indicated that any day that week was fine, except for December 3 because "I will be collecting homework that day." Dr. Hall conducted observations on December 3 and 5, 2001. She conducted the observation on December 3rd despite Mr. Sherrod's suggestion because she did not believe it would take the entire class for Mr. Sherrod to collect homework. By memorandum dated December 11, 2001, Dr. Hall provided Mr. Sherrod with a discussion of her observations and suggested improvement strategies. Dr. Hall found deficiencies in the areas of management of student conduct; presentation of subject matter; human development and learning; learning environment; communication; and planning.5 On December 18, 2001, Mr. Giblin, Dr. Hall, Mr. Sherrod, Jerilyn McCall, Jeanne Burdsall, and Diane Curcio- Greaves participated in an "investigative meeting" to "discuss concerns regarding failure to perform professional duties, insubordination and unprofessional behavior." That meeting was summarized in a Meeting Summary provided to Mr. Sherrod. See Petitioner's Exhibit 32. On January 7, 2002, Mr. Giblin, Dr. Hall, Mr. Sherrod, Ms. Burdsall, Ms. Curcio-Greaves, Esther Bulger, Margaret Newton, and Debra Raing met "to provide information on benchmarks, curriculum and to insure [sic] students are prepared with information to take the district exam." A Meeting Summary was provided to Mr. Sherrod. On April 30, 2002, Mr. Giblin again observed Mr. Sherrod's class. Mr. Giblin's written observations are contained in Petitioner's Exhibit 34. Mr. Giblin found concerns in the areas of presentation of subject matter, communication, and learning environment. A summary of his concerns and recommendations for improvement were provided in writing to Mr. Sherrod on or about May 15, 2002.6 On May 16, 2002, Mr. Sherrod was given an overall unsatisfactory performance evaluation. Seven areas of concern were noted. Under Section A, Teaching and Learning, the following areas of concern were noted: presentation of subject matter; communication; learning environment; and planning. Under Section B, Professional Responsibilities, the following areas of concern were noted: record keeping; working relationships with coworkers; and policies/procedure/ethics. Mr. Giblin did not specifically review the grades of students in Mr. Sherrod's classes before giving Mr. Sherrod his final evaluation. On May 29, 2002, Mr. Sherrod was provided with a School Site Assistance Plan (hereinafter referred to as the "SAP"), "to be initiated August 7, 2002." The SAP was scheduled by agreement to begin at the beginning of the next school year (2002-2003), because the 2001-2002 school year was about to end. Mr. Sherrod was also provided at the same time that he was given the SAP with "workbooks" by Dr. Hall which she indicated were "to be used for fulfilling your plan's suggested activities." During the 2001-2002 school year, Mr. Sherrod was adequately advised of his areas of concern and, despite being given sufficient time to do so, failed to remedy them. Olympic Heights administrators complied with all procedural requirements for the issuance of the SAP. Mr. Sherrod's Employment at Suncoast High School. Prior to the end of the 2001-2002 school year, as the result of meeting with School District Assistant Superintendents, Mr. Sherrod was transferred from Olympic Heights to Suncoast High School (hereinafter referred to as "Suncoast"), on September 23, 2002. For the school year 2002-2003, Kay Carnes was the principal of Suncoast. Kathleen Orloff served as an assistant principal. Upon his transfer to Suncoast, Mr. Sherrod was provided with a two-week orientation period before being assigned teaching responsibilities. Following this orientation period, classes, including some honors classes, were assigned to Mr. Sherrod. On September 30, 2002, a meeting was conducted "to discuss the status of Curtis Sherrod's Assistance Plan." The meeting was attended by, among others, Ms. Carnes and Ms. Orloff. While the Conference Notes of the meeting indicate that Ms. Orloff was to "create a school-site assistance plan" the evidence failed to prove that a "new" SAP was developed.7 On October 21, 2002, the SAP developed at Olympic Heights was modified primarily to reflect that the SAP would be administered at Suncoast (hereinafter referred to as the "Suncoast SAP"). The dates of the SAP were modified to reflect that it had been agreed to in October 2002 with the names of relevant individuals modified. Finally, the improvement strategies of videotaping and audio-taping a lesson were eliminated.8 The Suncoast SAP was provided to Mr. Sherrod during a School-Site Assistance Plan Meeting. During the meeting, which was memorialized in Petitioner's Exhibit 1, additional assistance review days (October 31, November 12, and November 22, 2002) were agreed upon. The second School-Site Assistance Plan Meeting was held on October 31, 2002.9 Mr. Sherrod was informed that Ms. Orloff would observe his class on November 5, 2002, at 1:00 p.m., and that Ms. Carnes would observe him on November 13, 2002. That meeting was memorialized in a Meeting Summary, Petitioner's Exhibit 38. Ms. Orloff, who was primarily responsible for implementing the Suncoast SAP, had been conducting informal observations of Mr. Sherrod's class before scheduling formal observations. The next School-Site Assistance Plan Meeting was held on November 12, 2002. The meeting was memorialized. Mr. Sherrod was informed that planning, presentation of subject matter, communication, learning environment, record keeping, and polices/procedures/ethics were still areas of concern. He was also told that working relations with co-workers was no longer an area of concern. Ms. Orloff conducted observations of Mr. Sherrod on November 5, 2002, and on November 7, 2002. Her observations were summarized in a memorandum to Mr. Sherrod dated November 12, 2002. She noted concerns in the areas of presentation of subject matter, communication, planning, and learning environment. Recommended actions to be taken with regard to each area of concern were also suggested. Although the Suncoast SAP was only required to last for a minimum of 30 days, the plan was continued until February 2003. School-Site Assistance Plan Meetings were held on November 22, 2002, January 7, 2003, and January 16, 2003. Observations of Mr. Sherrod's classes were also conducted by Ms. Orloff and summaries of her findings were provided to him along with suggestions on how to improve. Observations were conducted on November 19, 2002, January 15, 2003, January 27, 2003, and February 6, 2003. From the moment the Suncoast SAP was initiated, Suncoast personnel, including Ms. Carnes and Ms. Orloff, evaluated Mr. Sherrod and attempted to assist him to improve in the areas of concern they noted. Mr. Sherrod was allowed to observe other teachers, the chair of his department worked with him on planning, a teacher who also taught American History worked with him, he was allowed to attend workshops, he was provided the assistance of a peer assistance and review, or "PAR," teacher, and he was provided with documentation as to what was expected of teachers at Suncoast. He was also allowed to teach Contemporary History in substitution for American History. The curriculum of the teacher who had previously taught the class was provided to Mr. Sherrod for his use. At no time did Mr. Sherrod complain to anyone involved in the implementation of the Suncoast SAP that the assistance he was being provided was inadequate or that he desired any additional help. Nor did Mr. Sherrod or his union representative suggest at any time that the procedures required to be followed up to that point were not being adhered to. While a SAP is required to last 30 days, the Suncoast SAP began October 21, 2002, and did not end until February 6, 2003. During this time, he was observed on six different occasions. Additionally, after beginning to teach at Suncoast, Mr. Sherrod was informally observed until the Suncoast SAP began. While Mr. Sherrod corrected the concern over his interaction with co-workers which had been noted at Olympic Heights, Ms. Carnes found through her observations that he continued to be deficient in the areas of presentation of subject matter, communication, learning environment, planning, record keeping, and policies/procedures/ethics. Therefore, on February 6, 2003, Ms. Carnes gave Mr. Sherrod an overall unsatisfactory Classroom Teacher Assessment System (CTAS) evaluation noting these areas of concern. Ms. Carnes informed Arthur C. Johnson, Ph.D., the Superintendent of the School District, of the remaining areas of concern and concluded that "a sufficient number of these deficiencies still exist to warrant an unsatisfactory evaluation." She requested, therefore, by letter dated February 6, 2003, that Mr. Sherrod be placed on Performance Probation for 90 calendar days (hereinafter referred to as the "90-Day Plan"). Mr. Sherrod was provided with a copy of the letter. The basis for the unsatisfactory evaluation and the continuing deficiencies in the areas of concern noted are accurately summarized in the various School-Site Plan Meeting Summaries and the memoranda summarizing observations conducted during the 2002-2003 school year. Some of the most significant problems involved Mr. Sherrod's excessive and inappropriate use of R-rated videos, his failure to timely post student grades,10 and his failure to provide instruction in a manner which was consistent with time-lines suggested for teachers to complete instruction on all materials that were supposed to be covered. By letter dated February 10, 2003, Superintendent Johnson notified Mr. Sherrod in writing that he was being placed on a 90-Day Plan and that it would begin February 20, 2003, and conclude on June 4, 2003. Assistance reviews were scheduled to be held on March 31, May 5, and June 4, 2003, the last day of the 90-Day Plan. Dr. Johnson's letter was provided to Mr. Sherrod on February 19, 2003, at a School-Site Assistance Plan Meeting. The first observation to be conducted pursuant to the 90-Day Plan was to be conducted the week of February 24-28, 2003, by Diane Curcio-Greaves, Instructional Specialist, Professional Standards. This observation was made by Ms. Curcio-Greaves on February 27, 2003. A summary of the observation was provided by Ms. Curcio-Greaves to Mr. Sherrod on March 7, 2003. Ms. Curcio- Greaves noted deficiencies and recommended improvement strategies in the areas of presentation of subject matter, communication, learning environment, and planning. The second observation to be conducted pursuant to the 90-Day Plan was to be conducted the week of March 10-14, 2003, by Wanda Hagan, Area 5 Coordinator. This observation was made by Ms. Hagan on March 13, 2003. A summary of the observation, dated March 25, 2003, was provided by Ms. Hagan to Mr. Sherrod on March 28, 2003. Ms. Hagan noted deficiencies and recommended improvement strategies in the areas of presentation of subject matter, communication, planning, policies/procedures/ethics, and record keeping. She commended him in the area of learning environment. Mr. Sherrod did not attend, due to illness, the first Assistance Review meeting which had been scheduled as part of his 90-Day Plan for March 31, 2003. The remaining scheduled observations did not take place either. On April 14, 2003, Mr. Sherrod broke his knee cap. As a consequence, he did not return to Suncoast High for the remainder of the 2002-2003 school year. By memorandum dated April 30, 2003, he informed Ms. Carnes that he would not be returning to Suncoast that school year and requested a transfer to a school closer to his home. Mr. Sherrod, for the first time, also raised a number of concerns he had not previously expressed about his perceived lack of assistance and fair treatment at Suncoast. While the evidence proved that Mr. Sherrod may have had a genuine belief that he was not being provided effective assistance, the evidence failed to support his perception. Mr. Sherrod's Employment at Roosevelt Middle School. Mr. Sherrod was reassigned to Roosevelt Middle School (hereinafter referred to as "Roosevelt") effective October 3, 2003, after Marcia Andrews spoke with Gloria Crutchfield, principal of Roosevelt, about the availability of a position for him.11 Mr. Sherrod was assigned to teach 7th grade social studies classes, a couple of which were honors classes. On November 3, 2003, Ms. Curcio-Greaves, from Professional Standards, reviewed the 90-Day Plan with Ms. Crutchfield. Ms. Crutchfield did not, however, immediately institute the Plan. Rather, because Mr. Sherrod had begun teaching in mid-term and was new to Roosevelt, Ms. Crutchfield gave him additional time to become familiar with the new school before reinstating the remainder of the 90-Day Plan. A District Assistance Plan Meeting, which Mr. Sherrod attended, was held on December 2, 2003, to discuss reinstatement of the 90-Day Plan. It was necessary to revise the Plan to reflect Mr. Sherrod's unavailability to complete the Plan at Suncoast. It was agreed by all in attendance at the meeting, including Mr. Sherrod, that Mr. Sherrod had 44 more days to complete the 90-Day Plan, and that the Plan would be restarted December 3, 2003. The "evaluation from February 6, 2003, the assistance plan, the original calendar of 90 days, the revised calendar, and the 90-day timeline" were distributed during the December 2, 2003, meeting. The 90-Day Plan, as revised (hereinafter referred to as the "Revised Plan), provided that the "1st Assistance Review" would be held on December 2 and 5, 2003,12 the "2nd Assistance Review" would be held on January 6, 2004, and the "3rd Assistance Review" and "Final Evaluation Conference" would be held on the 90th day, February 6, 2004. Having had two formal observations under the 90-Day Plan, additional formal evaluations were scheduled for the week of December 8-12, 2003, and January 12-16, 2004. The first evaluation under the Revised Plan was conducted on December 12, 2003, by Frank Rodriguez, Assistant Principal, Forest Hill Community High School. His observation notes and suggested strategies were provided to Ms. Crutchfield and Mr. Sherrod by Memorandum dated December 15, 2003. Mr. Rodriguez noted deficiencies in the areas of presentation of subject matter, classroom management, planning, and assessment. Mr. Sherrod submitted a written rebuttal to Mr. Rodriguez's Memorandum. The next scheduled formal evaluation was conducted on January 21, 2004, by Dr. Mary Gray. Ms. Gray's written observations were provided to Mr. Sherrod on or about January 29, 2004. Dr. Gray noted deficiencies in the areas of presentation of subject matter, learning environment, and planning. Mr. Sherrod provided a verbal rebuttal to Dr. Gray. The "2nd Assistance Review" meeting, which had been scheduled to be held on January 6, 2004, was held on January 29, 2004. The meeting was held late because Mr. Sherrod had been absent between January 6 and 12, 2004 (four school days), due to the passing of his mother. It was not held until January 29th out of respect for his loss. The meeting was memorialized in a Meeting Summary, Petitioner's Exhibit 56. During the January 29, 2004, meeting, Ms. Crutchfield suggested to Mr. Sherrod and his representative that he agree to an extension of the Revised Plan to February 10, 2004,13 due to Mr. Sherrod's absence. Mr. Sherrod agreed. The evidence failed to prove whether Ms. Crutchfield had the authority to grant this extension. The next and final evaluation conference was scheduled for February 10, 2004. The same day the "2nd Assistance Review" meeting was held, January 29, 2004, Ms. Crutchfield informed Mr. Sherrod verbally and in writing that she would conduct a formal and final evaluation during the week of February 2-6, 2004. This observation had been scheduled originally for the week beginning January 27, 2004, but was moved back due to Mr. Sherrod's absence during January and Ms. Crutchfield's absence. When informed verbally of the observation, Mr. Sherrod indicated that it was likely that he would be going out on leave in the near future and asked if Ms. Crutchfield could specify the exact date of his evaluation. Ms. Crutchfield indicated she could not. Petitioner's Exhibit 56. By letter dated February 20, 2004, Ms. Curcio-Greaves informed Mr. Sherrod by letter that the final evaluation conference scheduled for February 10, 2004, was being rescheduled to February 16, 2004. Although Ms. Crutchfield had indicated that she would wait until February 10, 2004, to complete the Revised Plan, Mr. Sherrod, as he had advised, left Roosevelt on leave before that date and before Ms. Crutchfield was able to conduct a formal evaluation of him. Based upon her informal evaluations of Mr. Sherrod conducted during the 2003-2004 school year and the formal observations conducted by others during the 90-Day Plan and the Revised Plan, she issued a final evaluation of Mr. Sherrod on February 9, 2004. This reduced the amount of time that Mr. Sherrod had been given to improve his noted deficiencies from approximately 94 days to 93 days: 44 under the 90-Day Plan at Suncoast; 46 under the Revised Plan at Roosevelt; and an additional three days from February 6 to February 9, 2004, at Roosevelt. Ms. Crutchfield found in her final evaluation of Mr. Sherrod that he still had the following areas of concern: presentation of subject matter; communication; learning environment; planning; record keeping; and policies/procedures/ethics. Four of the areas of concern were in "Teaching and Learning" and two were in "Professional Responsibilities." Three concerns in Teaching and Learning alone is sufficient for an overall evaluation of unsatisfactory. Mr. Sherrod's overall evaluation was unsatisfactory. Ms. Crutchfield provided her evaluation of Mr. Sherrod to Dr. Johnson and recommended that his employment be terminated. By letter dated February 25, 2004, Dr. Johnson informed Mr. Sherrod that he would be recommending to the School Board that Mr. Sherrod's employment be terminated. A copy of Ms. Crutchfield's letter of recommendation and Mr. Sherrod's final evaluation were provided to Mr. Sherrod with Dr. Johnson's letter. Mr. Sherrod was also informed of his right to request an administrative hearing, which he exercised. Mr. Sherrod's Performance was Unsatisfactory. Beginning with the 2001-2002 school year and ending with his final evaluation on February 9, 2004, Mr. Sherrod was formally evaluated by nine different School District employees, all of whom were professionally trained to conduct evaluations of teaching personnel on behalf of the School Board. All of those evaluators, while finding Mr. Sherrod deficient in a number of areas, attempted to offer assistance to him which, if followed, could have corrected his deficiencies. During the three school years for which Mr. Sherrod was found to be deficient, all required assistance was provided to Mr. Sherrod to assist him in correcting his deficiencies. Indeed, more assistance than was required was provided to Mr. Sherrod. Mr. Giblin concluded that Mr. Sherrod, for his final evaluation, had evidenced four areas of concern under Teaching and Learning: presentation of subject matter; communication; learning environment; and planning. Except for planning, Dr. Hall found the same areas of concern. Mr. Giblin also concluded that Mr. Sherrod evidenced the following areas of concern under Professional Responsibilities: record keeping; working relationships with coworkers; and policies/procedures/ethics. At the conclusion of the SAP, Ms. Carnes concluded that Mr. Sherrod, for his final evaluation, had evidenced the same areas of concern under Teaching and Learning found by Mr. Giblin: presentation of subject matter; communication; learning environment; and planning. Ms. Orloof had found the same areas of concern during two prior evaluations. Ms. Carnes also concluded that Mr. Sherrod evidenced two of the same areas of concern under Professional Responsibilities found by Mr. Giblin: record keeping; and policies/procedures/ethics. At the conclusion of the 90-Day Plan, Ms. Crutchfield concluded that Mr. Sherrod, for his final evaluation, had evidenced the same areas of concern under Teaching and Learning found by Mr. Giblin and Ms. Carnes: presentation of subject matter; communication; learning environment; and planning. Ms. Crutchfield also concluded that Mr. Sherrod had evidenced the same areas of concern under Professional Responsibilities found by Mr. Giblin and Ms. Carnes: record keeping and policies/procedures/ethics. Ms. Crutchfield, while performing informal evaluations of Mr. Sherrod, did not perform a formal final evaluation of Mr. Sherrod. Instead, she relied heavily upon her informal evaluations and the evaluations of Ms. Curcio-Greaves, Ms. Hagan, Mr. Rodriguez, and Ms. Gray. Those evaluators, while all finding that presentation of subject matter and planning were areas of concern, were not consistent in their findings concerning the areas of communication and knowledge of subject matter. Ms. Hagan commended Mr. Sherrod in the area of knowledge of subject matter and Mr. Rodriguez failed to note the area of knowledge of subject matter as an item of concern. Ms. Gray and Mr. Rodriguez, the last two individuals to formally evaluate Mr. Sherrod before Ms. Crutchfield's evaluation failed to conclude that communication was an area of concern. It is, therefore, found that Ms. Crutchfield's conclusion that Mr. Sherrod had not corrected his deficiencies with regard to the areas of communication and knowledge of subject matter was arbitrary and not supported by the weight of the evidence. Despite the foregoing finding, Ms. Crutchfield's overall evaluation that Mr. Sherrod's performance was unsatisfactory was reasonable and supported by the weight of the evidence. Mr. Sherrod continued since the 2001-2002 school year and, more importantly, throughout the 90-Day Plan to evidence concerns in the areas of presentation of subject matter, planning, record keeping and policies/procedures/ethics. Thus, he evidenced two areas of concern in Teaching and Learning and two areas of concern in Professional Responsibilities, which were not corrected during the 90-Day Plan, despite efforts to assist him to improve. Ms. Crutchfield's final evaluation, with the exceptions noted, accurately reflected Mr. Sherrod's areas of concern and his unsatisfactory performance at the end of the Revised Plan despite the reasonable assistance provided to him. Those areas of concern were consistently found by nine evaluators over three school years and at three different schools. No credible evidence was presented to counter the conclusions reached by the individuals who evaluated Mr. Sherrod or to prove that their conclusions were based upon anything other than their professional judgments concerning Mr. Sherrod's performance. Failure to Prove Bias on the Part of the School Board. While at Olympic Heights, Mr. Sherrod wrote to Dr. Johnson once, the chairman of the School Board twice, and filed a "petition" with the School Board. The subject of the correspondence was Mr. Sherrod's perception of his treatment by officials at Olympic Heights. He believed that he was being harassed and discriminated against. It has been suggested that Mr. Sherrod's correspondence accurately reflects why his performance was found unsatisfactory at Olympic Heights and evidences a bias toward him on the part of all those who evaluated him. This suggestion is not supported by the evidence. At best, Mr. Sherrod's correspondence evidences the poor working relationship between Mr. Sherrod and some of his coworkers. This poor working relationship was noted as an area of concern on his final evaluation by Mr. Giblin. It is not necessary to decide who was the cause of the poor relationship between Mr. Sherrod and others at Olympic Heights. First, the area of concern, to the extent it was Mr. Sherrod's fault, was corrected by Mr. Sherrod and formed no basis in the ultimate finding that Mr. Sherrod's performance, uncorrected by the 90-Day Plan and the Revised Plan, was unsatisfactory. Additionally, the evidence failed to prove that anything which occurred while Mr. Sherrod was teaching at Olympic Heights had any influence on the conclusions concerning his performance at the two schools to which he transferred for the two school years after he sent the correspondence to Dr. Johnson and the School Board. Indeed, the fact that he did not send any further correspondence after the 2001-2002 school year further supports this conclusion. Dr. Dunn's Conclusions. Dr. Dunn opined at the final hearing that Mr. Sherrod did not over-infuse African-American history into his course materials. Dr. Dunn's opinions, however, are entitled to little weight. Most importantly, Dr. Dunn, unlike the nine individuals who evaluated Mr. Sherrod, did not actually observe Mr. Sherrod teaching during the times relevant to this case. In fact, Dr. Dunn has never observed Mr. Sherrod. Additionally, the content of Mr. Sherrod's classes, while the catalysts of the greater scrutiny afforded Mr. Sherrod's classes, was not the basis for the conclusion of those who evaluated Mr. Sherrod that his performance was unsatisfactory. The School District's Appraisal System. The School District's Instructional Performance Appraisal System was approved the then-Commissioner of Education in 1999. The Appraisal System has not been further reviewed since 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ratifying Mr. Sherrod's suspension and discharging him from further employment in the Palm Beach County Public Schools. DONE AND ENTERED this 8th day of July, 2005, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 8th day of July, 2005.
The Issue Pursuant to Section 120.57(3)(f), Florida Statutes, the issue is whether Respondent's proposed rescission of an award of a design-build contract to Petitioner for the construction of additions to two high schools was contrary to the Respondent's governing statutes, rules or policies or contrary to the specifications of Respondent's request for qualifications.
Findings Of Fact On March 30, 2004, Respondent issued a Request for Qualifications (RFQ) for design-build firms to design and construct additions at Southwest Miami Senior High School and Miami Killian Senior High School. The RFQ invites parties to submit proposals, if they are interested in performing the design and construction of three-story additions at each school (the subject projects). Respondent had used the design-build approach for school construction for the past seven to ten years. In this process, the contractor assumes the responsibility for most of the project, as well as, of course, the project construction. For the subject projects, Respondent entered into a contract with a Design Criteria Professional (DCP) to represent Respondent, as the owner, in certain aspects of the construction project. The DCP for these projects is Santos/Raimundez Architects, P.A. The contract between Respondent and the DCP states that Respondent has selected the DCP based, in part, on its designation of specialists, including Fraga Engineers for the mechanical and electrical work. The contract provides that any such specialists that are subconsultants to, rather than employees of, the DCP will enter into subcontracts with the DCP, but not Respondent. The DCP and its designated specialists form the DCP Team, which performs various tasks in connection with each project. These tasks include site investigations to determine project feasibility, the production of project-specific Phase I or schematic drawings from the master specifications that Respondent maintains for school construction, and the issuance of a building permit for the schematic design. Once the contractor commences construction, the DCP Team visits the site to protect Respondent, as the owner, from deviations from the approved design. The DCP Team also approves draws based on the percentage of work completed and change orders, as appropriate. The DCP Team performs about 10-15 percent of the overall design for a project. For the subject projects, the DCP Team spent seven months in performing its responsibilities prior to Respondent's selection of a contractor. The only involvement of Fraga Engineers with the subject projects is for the mechanical and electrical work noted above, as well as plumbing and fire-suppression work of a similar nature for which the DCP also contracted. For the subject projects, Petitioner retained Silva Architects as its architect and primary team member, and Silva Architects entered into a subcontract with Louis Aguirre for the mechanical, electrical, plumbing, and fire-suppression design and construction. The principal of Silva Architects and the principal of Fraga Engineers are, respectively, husband and wife. There is no indication in this record of any improper communications between Mr. Silva and Ms. Fraga concerning the contents of the RFQ or the Phase I drawings, as prepared by Respondent, or the contents of the proposal, as prepared by Petitioner. However, at the time of this solicitation, Fraga Engineers was serving as the engineering firm on at least two of Petitioner's projects, although her firm probably was under contract with Silva Architects, not Petitioner. Except for the following provision, the RFQ does not address potential conflicts between an offeror and Respondent. RFQ Paragraph I.H provides: Any proposer desiring to participate in this process must not have as part of its team an A/E [architectural/engineering] firm presently under contract with the Board for a specific project for which the proposer, or any member thereof, is performing as the general contractor. The Board considers this a conflict of interest and such proposals will not be eligible for award under this RFQ. Petitioner and Intervenor submitted timely proposals to Respondent. Among several offerors submitting proposals, Petitioner submitted the lowest bid, at $17,536,000, followed closely by Intervenor's second-lowest bid, at $17,556,000. Finding Petitioner's proposal acceptable in all respects, Respondent's School Board awarded the contract to Petitioner at its meeting of June 16, 2004. On the same day, Intervenor filed a notice of protest, followed by a timely formal written protest. The formal written protest, which is in the form of an undated letter from Intervenor's counsel to Respondent and Respondent's counsel, states that Intervenor was not allowed to bid on projects where its architect/engineer was on Respondent's DCP Team for another project. The formal written protest argues that Ms. Fraga, or her company, is part of Petitioner's team on other pending projects while she, or her company, is part of Respondent's DCP Team. Respondent conducted an informal conference with Intervenor and later with Petitioner in an attempt to resolve the matter. Failing in that effort, Respondent's counsel issued a letter, dated August 25, 2004, in which he recommended that Respondent's School Board rescind the proposed award to Petitioner. In his letter, Respondent's counsel reasoned that the spousal relationship between Petitioner's architect and the engineering firm under contract with Respondent's architect "would create a continuing and unavoidable conflict of interest that will inure to the benefit of either of these parties in violation of the General Requirements of the Bid, or at a minimum, could create a perceived or potential conflict of interest." In his letter, Respondent's counsel stated that "we disagree" with the recommended order entered in SBR Joint Venture v. Miami-Dade County School Board, DOAH Case No. 03-1102BID (August 1, 2003), in which the Administrative Law Judge concluded, among other things, that a bidding contractor's team did not include subcontractors under contract with the contractor's architect, rather than directly with the contractor. Unless the pronoun refers to the legal counsel's office or a committee formed to resolve the bid dispute, the "we" in the letter of Respondent's counsel is unclear because Respondent's School Board entered a final order on August 20, 2003--one year and five days before the letter of Respondent's counsel--adopting the recommended order. Another confusing part of counsel's letter is an explanatory footnote, in which Respondent's counsel unsuccessfully distinguishes the present case, in which Silva Architects is directly under contract with Petitioner, from SBR Joint Venture, in which the third-tier subcontractor was under contract with the general contractor's architect, not the general contractor. (In SBR Joint Venture, as in the present case, the so-called "third tier" subcontractor has a contract with the "second tier" architect, but not the "first tier" contractor.) The question in this case is not whether the second-tier Silva Architects is part of Petitioner's team-- clearly, it is. A major question in this case is whether Fraga Engineers is part of Petitioner's team--clearly, it is not, unless Ms. Fraga and Mr. Silva are interchangeable due to their marriage or her company's third-tier participation in other projects of Petitioner is attributed to the subject projects. In any event, before Respondent's School Board could take up its counsel's recommendation, Petitioner protested the recommendation, and this case ensued.
Recommendation It is RECOMMENDED that Respondent enter a final order awarding the contract to Petitioner. DONE AND ENTERED this 14th day of December, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2004. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Ira Libanoff Ferencik Libanoff Brandt Bustamante and Williams, P.A. 150 South Pine Island Road, Suite 400 Fort Lauderdale, Florida 33324 Luis M. Garcia Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132 J. Alfredo de Armas Alvarez, Armas & Borron, P.A. 3211 Ponce De Leon Boulevard, Suite 302 Coral Gables, Florida 33134
The Issue Whether the Respondent committed the violations alleged in the Amended Administrative Complaint filed May 22, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the stipulation of the parties, and the entire record of this proceeding, the following findings of fact are made: Ms. Blackwood has been employed by the School Board as a construction project manager on July 2, 1996. On July 1, 1997, Ms. Blackwood was made Senior Supervisor of Inspections and Code Compliance in the School Board's Building Department; the title of her position changed in 2001, and at the times material to this proceeding, Ms. Blackwood's position was Senior Supervisor for Building Inspectors in the Building Department. Her job responsibilities included supervising building inspectors whose function it was to inspect School Board construction projects for compliance with the various building codes governing such construction. Ms. Blackwood earned a bachelor's degree in design and a masters degree in construction management from the University of Florida. At the times material to this proceeding, she held a Florida building inspector's license, a building code administrator's license, a building contractor's license, and an interior designer's license. She has approximately 20 years' experience in building design and construction. Prior to becoming Senior Supervisor for Building Inspectors, Ms. Blackwood had no experience as a building inspector; her experience in the construction field was as a project manager. Ms. Blackwood is a member of the Broward Teachers Union - Technical Support Personnel ("BTU-TSP"). The BTU-TSP and the School Board entered into a Collective Bargaining Agreement that includes sections setting forth the rights of the School Board and the procedures that must be observed with respect to due process and discipline. The provisions defining "Management Rights" are found in Article Four of the Collective Bargaining Agreement and provide in pertinent part: It is understood and agreed that the District possesses the right and responsibility to operate and manage all schools, departments and programs and to direct the work forces. The rights, powers, authority, and discretion necessary for the District to carry out these rights and responsibilities shall be limited only by the express terms of this Collective Bargaining Agreement and shall be exercised in a manner consistent with this Collective Bargaining Agreement and Florida. In matters not covered by this Collective Bargaining Agreement, the District shall have the clear right to make administrative decisions. Consistent with this Collective Bargaining Agreement, these management rights shall include, but not be limited, to the following: * * * Direct its employees and establish standards of performance and conduct, including the right to make reasonable rules and regulations for the purpose of efficiency, safe practices and discipline. Take disciplinary action for just cause.[2] The provisions governing "Due Process & Discipline" are found in Article Nine of the Collective Bargaining Agreement and provide in pertinent part: Progressive Discipline: The parties agree to the principles of progressive discipline. Disciplinary action, for the most part, shall be administered in a manner to correct behavior that is in violation of policies, procedures and established practices. Discipline shall be administered for just cause and not in a manner that is demeaning or degrading. b. Meetings and Notifications: Disciplinary action shall be administered within twenty (20) working days from the date the violation occurred or when the violation was first known to have occurred. For any meeting scheduled for the purpose for taking disciplinary action, the department shall provide the employee with written notification of the violation and schedule a meeting where the circumstances surrounding the violation shall be discussed. This meeting shall be scheduled no sooner than three (3) working days after the employee receives such notification. . . . * * * During the Meeting: 1. The conference is intended to provide the employee with an explanation of the charges and the basis for the charges. Any relevant questions that the employee asks shall be answered to the best of the supervisor's ability. The employee shall be given an opportunity to respond, including their own explanation of the incident or mitigating circumstances, either verbally or in writing. * * * Discipline: Any discipline of an employee shall be for just cause. Disciplinary action may be taken in the form of a verbal reprimand, written reprimand, suspension, demotion or discharge. No action against an employee shall be taken on the basis of a complaint by any individual nor any notice of such action or complaint shall be included in the employee's personnel file, unless the matter is first reported to the employee in writing and the employee has had the opportunity to discuss the matter with his/her supervisor.[3] Ms. Blackwood's immediate supervisor in the Building Department was the Chief Building Official ("CBO"). The CBO is the final authority who is responsible, at the local level, for interpreting the Florida Building Code ("Code") as it applies to School Board construction projects. During her time as Senior Supervisor, Ms. Blackwood was supervised by Robert Goode, except for a period of four or five months when Alan Gilbert served as the CBO, and by Lee Martin.4 Ms. Blackwood had a difficult relationship with each of the CBOs; she considered Mr. Goode unqualified for the position of CBO; she did not like Mr. Gilbert's allowing the building inspectors under her supervision to avoid the chain of command and go directly to him with any concerns they might have; she did not agree with many of Mr. Martin's policies and decisions and she thought he was an ineffective leader. In September 2001, Ms. Blackwood and two of her subordinate building inspectors, Maria Rouco and Sarah Kanner, filed suit against the School Board, alleging, among other things, that they should be accorded whistle-blower status and that they had been subjected to discrimination, harassment, and failure to promote. The lawsuit caused a split among the building inspectors under Ms. Blackwood's supervision, with some supporting the lawsuit and others opposing it. At or about the time the suit was filed, some of Ms. Blackwood's subordinates noticed that Ms. Blackwood's behavior in the workplace changed and that the atmosphere in the Building Department's offices became strained, tense, and chaotic. The lawsuit was finally resolved in November 2004, and resulted in a verdict against Ms. Blackwood. From the summer of 2001 until she was reassigned in February 2005, Ms. Blackwood's effectiveness as a leader and her conduct in the workplace was called into question in evaluations, letters of reprimand, informal communications from her supervisors, non-disciplinary counseling sessions, and formal and informal complaints submitted by several of her subordinates. Ms. Blackwood's relationship with Mr. Goode Both Ms. Blackwood and Mr. Goode applied for the position of CBO with the School Board in 2001, and Mr. Goode was ultimately chosen for the position. Their working relationship was somewhat confrontational when he first became her supervisor, but the level of confrontation escalated as time progressed. Ms. Blackwood believed that Mr. Goode had misrepresented his qualifications for licensure to the Department of Business and Professional Regulation and was not qualified to hold either the license that was issued to him or the position of CBO. Mr. Goode issued a written directive that building inspectors should stop doing any plan reviews for the projects for which they were responsible. Several months after the directive was issued, Mr. Goode learned that building inspectors under Ms. Blackwood's supervision continued to be involved in plan review. Mr. Goode discussed this with Ms. Blackwood and told her to follow the directive and send it to all of the employees under her supervision. On or about August 7, 2002, Ms. Blackwood directed one of the building inspectors under her supervision to take a dispute with an architect over an inspection to the Florida Department of Education. This instruction was inconsistent with the procedures Mr. Goode had established for resolving disputes between building inspectors and architects, which procedures required that the issue first be considered at the local level. In an e-mail dated August 7, 2002, Mr. Goode wrote Ms. Blackwood to advise her that he considered this an act of insubordination and that he intended to schedule a meeting with her in the near future to discuss the matter. This incident did not, however, result in disciplinary action being imposed against Ms. Blackwood. On or about August 23 and 26, 2002, Ms. Blackwood become involved in a heated e-mail exchange with Israel Rodriguez-Soto, a project manager, regarding the accessibility requirements of the Americans With Disabilities Act being met at Elementary School X and the procedure for resolving disputes over whether a building met the requirements of the Florida Accessibility Code for Building Construction. Ms. Blackwood noted in her e-mail to Mr. Rodriguez-Soto that "MR. GOODE'S PROCEDURE [for resolving disputes over code interpretation] ONLY REFERS TO THE DEPARTMENT OF EDUCATION INTERPRETATIONS."5 (Emphasis in original.) Both Mr. Rodriguez-Soto and Ms. Blackwood sent a copy of their e-mails to Mr. Goode, who responded in an e-mail to Ms. Blackwood dated August 27, 2002: Please refrain from critiquing procedures I have issued with statements such as "Mr. Goode's procedures only refers to the Department of Education interpretations." This is the second recent incident regarding misinformation you provided related to the Code Interpretation Dispute Procedure and I consider such action to be insubordinate conduct. . . . [I]t troubles me that you, as a senior supervisor, did not instruct Mr. Fallon to follow the procedure . . . . I plan to meet with you soon to discuss this matter in greater detail.[6] Mr. Goode considered Ms. Blackwood's job performance to be consistently unacceptable in several areas, specifically in her failure to implement his policies regarding building inspectors not being involved with plan reviews and regarding the dispute resolution procedures. Mr. Goode prepared draft evaluations of Ms. Blackwood's performance for the 2001-2002 and 2002-2003 school years, but he was advised by the School Board's personnel office not to finalize the evaluations because a poor performance evaluation could be considered retaliation for the lawsuit she had filed against the School Board and an attempt to tarnish her employment record. Mr. Goode, therefore, never finalized these two performance evaluations. On two or three occasions, Mr. Goode met with Ms. Blackwood and told her that he expected her to follow his directives, policies, and procedures. He was also concerned because he perceived that she had a confrontational relationship with the general contractors, architects, and engineers who worked on School Board projects. Mr. Goode did not, however, initiate formal disciplinary proceedings against Ms. Blackwood during the time he was her supervisor. During the period extending from October 2002 through mid-January 2003, Ms. Blackwood corresponded by e-mail with Charlotte Greensbarg, an assistant to a member of the School Board, and with Jilda Unruh, a reporter for a local television station, and provided them with documents she obtained from the Building Department. Ms. Blackwood did not inform Mr. Martin, her supervisor, that she was providing these documents and information about the inner workings of the Building Department. Dr. Frank Till, the Superintendent of Schools for Broward County, became aware of Ms. Blackwood's correspondence and asked for an explanation of her intention. Ms. Blackwood responded with a lengthy memorandum about the problems she believed existed with the backlog of punch lists for School Board construction projects that had not been completed and with other matters handled by the Building Department. This memorandum did not provide an answer acceptable to Dr. Till, and he again requested an explanation in a memorandum dated May 27, 2003, but Ms. Blackwood refused to provide any additional explanation. Ms. Blackwood was not disciplined for her actions. Ms. Blackwood's relationship with Mr. Martin Both Ms. Blackwood and Mr. Martin applied for the position of CBO after Mr. Gilbert left the position. Although Mr. Goode returned as acting CBO, Mr. Martin was ultimately offered the position. The working relationship between Mr. Martin and Ms. Blackwood was initially amicable but eventually deteriorated and ultimately became contentious and adversarial. In May 2003, shortly after he became CBO, Mr. Martin requested a non-disciplinary meeting with Ms. Blackwood. He was aware that there was hostility among some of the building inspectors under her supervision, and he called the meeting to discuss ways she could improve the working relationships with these employees. Mr. Martin asked Marilynn Strong, who was at the time coordinator of evaluations in the School Board's Human Relations Department, to attend the meeting. The meeting started out well, but, according to Ms. Strong, Ms. Blackwood began shouting at Mr. Martin, telling him that she was disappointed in his leadership. She appeared very angry, and Ms. Strong was shocked at Ms. Blackwood's behavior. Ms. Strong received a number of complaints from several of the building inspectors under Ms. Blackwood's supervision, and, in the fall of 2003, she, Mr. Martin, Ms. Blackwood, and Gary Itskowitz, Ms. Blackwood's BTU-TSP representative, met to discuss these complaints. Ms. Strong shared with Ms. Blackwood that the complaints involved perceived harassment and intimidation, creation of a bad working environment caused by Ms. Blackwood's yelling, and interference with the building inspectors' work. Ms. Strong advised Ms. Blackwood that the employees felt that their work environment was adversely affecting them personally and professionally and that Ms. Blackwood's behaviors were continual, pervasive, and offensive. Finally, Ms. Strong advised Ms. Blackwood that several of building inspectors under her supervision had asked for transfers from her section. On January 28, 2004, Mr. Martin issued two letters of reprimand to Ms. Blackwood, in which he advised her that if her actions were repeated, she would be subject to discipline, "up to and including termination." One letter was a reprimand for "Failure to Know or Disclose Information" and referred to a letter dated August 29, 2003, in which Ms. Blackwood challenged Mr. Martin's decision to issue Temporary Certificates of Occupancy for buildings at McArthur High School. The second letter was a reprimand for "Exceeding Authority" and referred to Ms. Blackwood's directing the principal of an elementary school to occupy portable buildings before a Certificate of Occupancy, which could be signed only by the CBO, had been issued. In addition to issuing the letters, Mr. Martin held a counseling session with Ms. Blackwood on January 28, 2004. Ms. Blackwood filed grievances with respect to the two reprimands, asserting that they were untimely under the 20-day rule in the Collective Bargaining Agreement; the grievances were successful, and the letters of reprimand were rescinded. In an e-mail dated January 20, 2004, to John Hamrich of the Florida Department of Education, Ms. Blackwood complained that Mr. Martin had "reassign[ed] all of the building inspectors to other construction projects replacing [building] inspectors at all on-going capital construction" and instituted a policy to rotate building inspectors from one project to another every 60 days.7 Ms. Blackwood pointed out what she perceived to be a number of problems with Mr. Martin's new policy, and, under the guise of asking for clarification of what she considered to be the negative effect of these changes, Ms. Blackwood included numerous charges of irregularities in the running of the Building Department. Ms. Blackwood also accused Mr. Martin of allowing new facilities to open "with outstanding life safety violations" by issuing Temporary Certificates of Occupancies [sic]."8 In a memorandum to Ms. Blackwood, dated February 18, 2004, sent through Kenneth Klink, the School Board's Chief Operating Officer, and carrying the heading of "Reprimand - Rotation of Inspectors," Mr. Martin stated that he considered the e-mail message to Mr. Hamrick "extremely insubordinate, and detrimental to the school district" and that "[i]n the future, continued insubordination will result in disciplinary action, up to and including termination." Ms. Blackwood received the letter on March 8, 2004.9 Ms. Blackwood filed a grievance with respect to the March 8, 2004, letter of reprimand on the grounds that it was untimely under the 20-day rule in the Collective Bargaining Agreement. A meeting was held on June 9, 2004, with Mr. Martin, Ms. Blackwood, Mr. Itskowitz, and Linda Wetzel, Director of the School Board's Employee Relations Department. The letter of reprimand and the grievance were discussed, and Mr. Martin stated that he had sufficient grounds to issue Ms. Blackwood a letter of reprimand. It was determined, however, that the letter of reprimand had not been issued timely under the provisions of Article 9 of the Collective Bargaining Agreement. The grievance was, therefore, successful, and the letter of reprimand was rescinded. During the June 9, 2004, meeting, Mr. Itskowitz stated that the BTU-TSP had received a number of complaints from employees in Ms. Blackwood's department, and he asked if he could bring in a mediator to work with Ms. Blackwood and the employees that she supervised in an attempt to resolve some of the conflicts. Ms. Wetzel and Mr. Martin agreed that this would be beneficial, but the mediation was never held. Ms. Blackwood filed a complaint with the Inspector General of the Florida Department of Education on October 4, 2004, in a letter headed "Hurricane Shelters and Other Outstanding Construction Issues at Broward County Schools." In the complaint, she criticized Mr. Martin in particular and the district administration in general for the failure to complete hurricane shelters with proper safeguards and to turn them over to local emergency organizations for use. Ms. Blackwood pointed out that she had brought the problems to the attention of Mr. Martin and others for several years and that no action had been taken. The Inspector General wrote to Mr. Till and requested that the matter be investigated at the local level and a report prepared for his office no later than March 31, 2005. The results of the investigation are not included in the record of this hearing. When Mr. Martin first assumed the position as CBO, he was advised by the central office that Mr. Goode and Mr. Gilbert had had problems with Ms. Blackwood and that he should consider having a series of counseling sessions to attempt to resolve any problems Ms. Blackwood was having. Mr. Martin had a number of non-disciplinary counseling sessions with Ms. Blackwood, which were arranged by the School Board's personnel department or its employee relations department and were attended by either Linda Wetzel or Marilyn Strong. Mr. Martin's purpose in conducting these counseling sessions with Ms. Blackwood was to address what he perceived as her ongoing insubordinate, subversive, and argumentative conduct in the workplace. The counseling sessions were not productive, however, because Ms. Blackwood was confrontational and argumentative. Mr. Martin believed that Ms. Blackwood's way of conducting herself in the workplace had not altered at the time he left his position as CBO in February 2005. Mr. Martin memorialized one non-disciplinary counseling session that was held on December 9, 2004, with Ms. Blackwood regarding "her attitude toward her job role in the Building Department, and the specific parameters of her job responsibilities."10 Lynn Strong, of the School Board's Department of Human Resources, also attended the meeting. Mr. Martin summarized Ms. Blackwood's conduct during the meeting as follows: During the meeting, Ms. Blackwood dominated the conversation and continually turned it around to a discussion of various people not meeting her expectations or managing the Building Department in the manner she thinks is appropriate. Given that the purpose of the meeting, as stated at the beginning, was to discuss how the Building Department could move forward in a unified manner toward common goals, it is significant that at no time during the conversation, which lasted for roughly an hour and fifteen minutes, did Ms. Blackwood ever make any comments pertaining to the effective functioning of the organization, or reducing the levels of stress and animosity that exist in it as a result of her insistence on having her own way. All of her comments were directed at how people, me included, should change to conform to her way of thinking and performing their job duties. Until Ms. Blackwood chooses to help unify and improve the Department rather than criticize and undermine it, she will not be an effective supervisor.[11] Mr. Martin scheduled another meeting with Ms. Blackwood for December 14, 2004, in order to discuss the parameters of her job responsibilities, but the evidence does not reflect that this meeting was held. At some point during Mr. Martin's tenure as CBO, Ms. Blackwood filed a complaint against him with the Department of Business and Professional Regulation, the agency responsible for issuing and regulating the licenses held by Mr. Martin. In her complaint, Ms. Blackwood accused Mr. Martin of having issued Temporary Certificates of Occupancy for school buildings that were in violation of the Code. The Department of Business and Professional Regulation investigated the complaint and found that there was no probable cause to institute disciplinary proceedings against Mr. Martin. Ms. Blackwood also filed complaints against two other co-workers in the Building Department. Mr. Martin prepared performance appraisals for Ms. Blackwood for the 2003-2004 and 2004-2005 school years, with an overall rating of effective.12 Mr. Martin rated Ms. Blackwood "effective" in all areas of each appraisal except "leadership"; Mr. Martin rated Ms. Blackwood "ineffective" in this category in both appraisals, commenting in the 2003-2004 school year appraisal that Ms. Blackwood "[a]ctively challenges and undermines decisions and authority of Chief Building Official" and in the 2004-2005 school year appraisal that "Ms. Blackwood is frequently argumentative rather than collaborative with respect to coworkers and stakeholders; contributes to a departmental atmosphere that is strained, and where communication is impeded."13 Even though Ms. Blackwood's overall appraisal rating was "effective," she filed grievances with respect to both performance appraisals. The grievances had not been resolved as of the date of final hearing in this case, so the performance appraisals have not been finalized. On or about February 15, 2005, Mr. Martin discovered a copy of an anonymous document identified as "Letter to the Editor" circulating around the employees of the Building Department. The letter purported to be a response to comments by Mr. Martin to the press to the effect that the Building Department was dysfunctional. The letter included comments critical of the School Board, School Board construction project managers, "influential builders, architects and engineers," and district, area, and school site staff for "preventing the School Board Building Department from performing their duties as required by State Statute/law, including the opening of safe schools for occupancy," and it implied that Dr. Till had a conflict of interest to the extent that he directly supervised the Building Department and was also responsible for ensuring that the Broward County schools opened on time.14 The author of the letter, whose identity was not known in February 2005 but who was later revealed to be Ms. Blackwood, included details of specific incidents that she considered inappropriate and a number of complaints regarding the way certain issues were handled by the School Board or the school district's administration. Mr. Martin considered the allegations in the letter to be sufficiently serious that he wrote an e-mail to the Building Department staff trying to reassure them and encourage them to continue doing their jobs to the best of their ability. The "Letter to the Editor" that was circulating around the Building Department on or about February 15, 2005, was a draft that Ms. Blackwood provided only to the union for comment and to the Building Department's union steward; Ms. Blackwood did not put the document in general circulation. Ms. Blackwood wrote the letter because of her frustration over quotes attributed to Mr. Martin that appeared in a newspaper and because she thought that Mr. Martin was one of the reasons the Building Department was dysfunctional. At the time she provided the document to the union, Ms. Blackwood did not know whether she would send it to the newspaper for publication, and she did not, in fact, do so. Ms. Blackwood's relationship with building inspectors under her supervision Ms. Blackwood's working relationship with the building inspectors under her supervision was generally good when she first became Senior Supervisor of Building Inspectors in 1999. In late 2001 and early 2002, several of the building inspectors under Ms. Blackwood's supervision began experiencing problems in their working relationship with her. The working environment became very strained, and friction developed between Ms. Blackwood and some of the building inspectors. The tense atmosphere apparently coincided with the hiring of Susan Kanner and Maria Rouco and the filing of the lawsuit against the School Board by Ms. Blackwood, Ms. Kanner, and Ms. Rouco. Several building inspectors felt intimidated by Ms. Blackwood and believed that they faced the threat of retribution if they disagreed with Ms. Blackwood or her co- litigants. A rumor circulated among the building inspectors that Mr. Goode had been personally named as a defendant in the lawsuit, and several of the building inspectors under Ms. Blackwood's supervision feared that, if they did not agree with her interpretation of the Code, they would be included as defendants in the lawsuit. As it turned out, the rumor regarding Mr. Goode's being named a do-defendant was false, but it nonetheless had the effect of increasing the tension in the Building Department. Building inspectors must be licensed by the state as building inspectors, and they often hold several additional licenses relating to the construction trades. They must use their own judgment to determine whether particular construction satisfies code requirements and to determine how a violation should be corrected. The perception of several of the building inspectors was that Ms. Blackwood expected them to perform inspections and fail any work that did not conform to Ms. Blackwood's interpretation of the Code. After they learned that Ms. Blackwood had filed a complaint with the Department of Business and Professional Regulation against Mr. Martin, several of the building inspectors under Ms. Blackwood's supervision feared that, if they did not conform to Ms. Blackwood's interpretation of the Code, their licenses would be in jeopardy. In fact, several of the building inspectors feared retribution from Ms. Blackwood because they believed she was implicitly threatening to report them to the Department of Business and Professional Regulation when she emphasized during staff meetings that their licenses and their jobs would be jeopardized if they failed to enforce the applicable statutes, rules, and codes according to her interpretation. Several of the building inspectors also experienced stress and felt intimidated because Ms. Blackwood, Ms. Kanner, and Ms. Rouco routinely sent accusatory e-mails that required responses from the building inspectors to defend their decisions and because Ms. Blackwood frequently yelled at some of the building inspectors in front of other employees. In a letter dated August 13, 2003, Jerolie Strong, a building inspector supervised by Ms. Blackwood, wrote a letter to the director of the School Board Office of Equal Educational Opportunities complaining of ongoing problems with Ms. Blackwood. Although Ms. Strong indicated in the letter that the problems she had with Ms. Blackwood were of long duration, she focused on an incident that occurred on August 13, 2003, in which Ms. Blackwood wrongly accused Ms. Strong of not following the appropriate procedures when doing inspections and, according to Ms. Strong, yelled at her in front of the office staff and some of Ms. Strong's fellow building inspectors and continued yelling at her in a conference room. Ms. Strong felt that, at least in part, Ms. Blackwood's behavior towards her was the result of discrimination on the basis of race. Ms. Strong is not aware of anything that was done in response to her complaint. In an e-mail dated February 4, 2004, Robert Hamberger, a building inspector under Ms. Blackwood's supervision, wrote a letter of complaint to Mr. Martin about misinformation Ms. Blackwood provided to the building inspectors under her supervision. Mr. Hamberger summarized information purportedly provided by Ms. Blackwood in staff meetings held between June 3, 2003, and December 3, 2003, that he considered incorrect. Mr. Hamberger concluded the e-mail with the following concerns: One, we are being coerced and intimidated to perform our inspections contrary to the intent of the [Florida Building] code resulting in added expense and delays to projects based on incorrect interpretations. Two, it is more than apparent that Ms. Blackwood's objectivity and that of Ms. Kanner's and Ms. Rouco's has been lost. Three, all three have demonstrated numerous times in the field and at staff meetings a gross lack of experience, which lead to some of these errant interpretations. We see a true conflict of interest in how these three function. They are undermining the very system that they are paid to service for the purposes of personal gain. The bottom line is the creation of disharmony and confusion amongst the building inspectors.[15] In Mr. Hamberger's view, the Code could be interpreted several ways, and building inspectors had the discretion to interpret gray areas of the Code in the way they thought appropriate. Mr. Hamberger believed that the goal of Ms. Blackwood, Ms. Kanner, and Ms. Rouco was to bring the School Board's building program to a halt to further their chances of prevailing in their lawsuit and that Ms. Blackwood insisted on overly-strict interpretations of the Code in order to slow down construction. Mr. Hamberger prepared a memorandum dated February 27, 2004, directed to Michael Garretson, the School Board's Deputy Superintendent of Facilities and Construction Management. The memorandum was signed by Mr. Hamberger, Al Jackson, Valeria Oscheneek, Jose Sadin, Gigi (Jerolie) Strong, and Irv Tutunick, who were all building inspectors under Ms. Blackwood's supervision. In the memorandum, these individuals complained about the deterioration of the working conditions and the extremely low morale in the Building Department, which they attributed to the Ms. Blackwood's management style. They pointed out that, in their view, "retribution and intimidation are status quo" for anyone opposing Ms. Blackwood, pointing out the she routinely reminds anyone disagreeing with her that their licenses could be in jeopardy if they failed to enforce the Code, statutes, and rules.16 The building inspectors accused Ms. Blackwood of using bullying tactics, of discriminating against building inspectors who do not agree with her, of attempting to undermine the CBO, Mr. Martin, by standing over his shoulder "hoping he will make an error in judgment, so that she can report him to the Department of Business and Professional Regulation or the DOE [Department of Education]."17 Finally, the building inspectors stated that they could not understand why the situation with Ms. Blackwood had been allowed to continue, and they requested that "some action . . . be taken soon to correct the abhorrent working conditions prevalent in our Department."18 On March 3, 2004, Mr. Martin submitted a Personnel Investigation Request to the Special Investigative Unit of the School Board's Office of Professional Standards and referred the complaint of the six building inspectors for investigation. The report of the investigator from the Special Investigative Unit found no evidence that Ms. Blackwood "ha[d] created a hostile work environment by requiring inspectors to follow state guidelines."19 The inspector did, however, note that his investigation revealed some issues that needed to be addressed by a labor relations expert or senior management. Mr. Hamberger complained to Mr. Martin of a negative encounter with Ms. Blackwood on November 19, 2004. On that date, Ms. Blackwood accused Mr. Hamberger of perjuring himself in his testimony at the trial of Ms. Blackwood's lawsuit. Ms. Blackwood made the accusation in a loud voice in the presence of at least one other employee of the Building Department. This encounter was one of the items addressed in the non-disciplinary meeting Mr. Martin held with Ms. Blackwood on December 9, 2004; according to Mr. Martin, Ms. Blackwood denied in this meeting that her comments to Mr. Hamberger had been heated or acrimonious. In late 2004, Mr. Hamberger found the working conditions created by Ms. Blackwood so stressful and onerous that he requested and was given a transfer to the Building Department section supervised by Ron Morgan. Ms. Oscheneek, one of the building inspectors who signed the February 24, 2004, complaint against Ms. Blackwood, found working under Ms. Blackwood's supervision to be very stressful. She felt fearful, very uncomfortable, and intimidated by Ms. Blackwood's "screaming" at her in the office in front of others, and she felt threatened and was afraid that Ms. Blackwood would report her to Department of Business and Professional Regulation if she made a mistake in her inspections or disagreed with Ms. Blackwood or Ms. Kanner or Ms. Rouco. Ms. Oscheneek felt that her effectiveness as a building inspector was negatively influenced by Ms. Blackwood, and, in December 2004, on the advice of her doctor, Ms. Oscheneek transferred to the group of building inspectors supervised by Ron Morgan. Irving Tutunick, a long-time building inspector with the School Board, considered Ms. Blackwood a very good supervisor until approximately 2001, when he perceived that the hiring of Ms. Kanner and Ms. Rouco created a split among the building inspectors supervised by Ms. Blackwood. In Mr. Tutunick's view, the workplace became very uncomfortable for him, especially since he believed that Ms. Blackwood did not approve of the way he carried out his job responsibilities. In particular, Ms. Blackwood treated as a major offense any criticism of Ms. Kanner's or Ms. Rouco's Code interpretations, and, in Mr. Tutunick's view, the "wrath of god" would rain down from Ms. Blackwood if any building inspector disagreed with their interpretations. Mr. Tutunick also was uncomfortable in the workplace because of Ms. Blackwood's tendency to, in Mr. Tutunick's words, "fly off the handle and chastise [his] co- workers" in front of the entire office. Mr. Tutunick also felt that Ms. Blackwood's management style adversely affected his ability to do his job because he perceived that Ms. Blackwood considered the building inspectors who did not agree with her or Ms. Rouco ignorant about construction and the process of inspections and Code interpretation. Mr. Tutunick signed the February 27, 2004, memorandum to Mr. Garretson complaining about the hostile working environment created by Ms. Blackwood. He retired from the School Board in February 2005. Several of the building inspectors supervised by Ms. Blackwood considered her an excellent supervisor who supported her staff, tried to improve her staff's performance, and took seriously her responsibility to ensure that the buildings constructed for the School Board met the requirements of the Code and ensured the life health and safety of the students and staff who would be using the buildings. They agreed that there was a great deal of yelling in the Building Department because that type of behavior is typical for the construction industry. All of the building inspectors under Ms. Blackwood's supervision agreed that building inspectors are under a great deal of stress trying to deal with the competing goals of ensuring that school buildings meet Code requirements but are constructed in a cost-effective way and meet deadlines for opening. At times, building inspectors are under pressure to pass inspections in order to avoid delays in project completion. Ms. Blackwood frequently addressed Code interpretation in staff meetings because she was concerned with inconsistency among the building inspectors in their Code interpretations. Ms. Blackwood's working relationship with clerical and secretarial staff During his exit interview in February 2005, Mr. Martin told Donnie Carter, Deputy Superintendent of Operations for the School Board, of the problems he had experienced with Ms. Blackwood and of his concern about the negative effects of Ms. Blackwood's conduct. Mr. Martin believed that Mr. Carter decided to initiate a preliminary investigation into the Building Department as a result of the information he provided to Mr. Carter during his exit interview. On February 16, 2005, Mr. Carter was visiting the Building Department offices, when several members of the Building Department's clerical staff requested a meeting with him. Eight individual staff members met with Mr. Carter for approximately one and one-half hours, and they advised Mr. Carter of concerns they had regarding their working relationship with Ms. Blackwood and of the negative impact Ms. Blackwood was having on their job performance and, in some cases, their health. There were, among others, specific complaints that Ms. Blackwood frequently yelled at co-workers and staff in the workplace; caused some employees to cry because of her harsh treatment of them; engaged in tyrannical actions as supervisor; repeatedly belittled management, and was often disrespectful to her supervisor, Mr. Martin. As a result of this meeting, Mr. Carter initiated a full investigation of the overall operation of the Building Department but did not specifically target Ms. Blackwood. Mr. Carter's purpose in conducting the investigation was to determine the cause of the negative working environment in the Building Department and the reasons for the delays in opening new buildings. Mr. Carter asked the employees in the Building Department to complete a questionnaire that contained eight questions that inquired about their perceptions of the leadership and the working environment in the Building Department; any statements or actions of a supervisor that they wanted to point out; whether they had witnessed unprofessional or abusive conduct by a supervisor or co-worker and, if so, why they had not previously come forward; whether the working environment was supportive or hostile to productivity and employee satisfaction; whether supervisors encouraged good working conditions and cooperation and teamwork among employees; what could be done to improve the working environment and quality of supervision; and whether the employee's supervisor treated him or her in a supportive, professional manner. After he received responses to the questionnaires, Mr. Carter interviewed each of the individuals. Either Ms. Wetzel or Ms. Strong was present at these meetings. The information Mr. Carter received from the Building Department staff indicated to him that Ms. Blackwood was responsible for the low morale and the negative performance in the Building Department because of her perceived unprofessional conduct, her extreme lack of leadership, her lack of support for her staff, the confrontational way she conducted herself in the workplace, the tone of voice in which she spoke to people, the demeaning manner in which she spoke to staff, and her disrespectful attitude toward her supervisor, Mr. Martin. In or around February 16, 2005, Mr. Carter was advised of three specific instances of alleged misconduct by Ms. Blackwood involving three employees of the Building Department. The first incident occurred on February 16, 2005, and involved Jerolie Strong. During a conversation with Ms. Blackwood, Ms. Strong told her that she intended to ask Mr. Martin to sign an application for her to receive a provisional license to perform plan reviews. At the time of her discussion with Ms. Strong, Ms. Blackwood was writing an e-mail to the BTU-TSP about certain matters at the Building Department, and she included in the e-mail the statement that Mr. Martin was "signing certifications for inspectors to get provisional licenses" to perform plan reviews.20 Ms. Strong saw the statement and became very upset because this was not what she had told Ms. Blackwood. In Ms. Strong's view, Ms. Blackwood's behavior in this instance was typical and part of an ongoing pattern of misinterpreting and passing along a distorted version of something that she had been told. Ms. Strong told Ms. Blackwood that the statement she had made in the e-mail about Mr. Martin was incorrect, and Ms. Blackwood corrected the statement in a subsequent e-mail. Ms. Strong reported this incident to Mr. Carter as part of an ongoing pattern of misrepresentation on Ms. Blackwood's part. The second incident occurred on or about February 4, 2005, and involved Diane Clark, a secretary who worked in Ms. Blackwood's section. Ms. Clark reported this incident to Mr. Carter in an e-mail dated February 18, 2005. Ms. Clark's encounter with Ms. Blackwood occurred when Ms. Clark passed along to Ms. Rouco some concerns Mr. Martin had regarding the way Ms. Rouco had filled out a "Property Pass" form and regarding Ms. Rouco's request for compensatory-leave time. Ms. Clark gave Ms. Rouco Mr. Martin's message, and Ms. Blackwood interjected her opinion that Mr. Martin was incorrect with respect to both the request for compensatory-leave time and the procedure for completing the "Property Pass" form. Ms. Clark explained the rationale for Mr. Martin's interpretation of the requirements for the "Property Pass" to Ms. Blackwood, and Ms. Blackwood continued disagreeing with Ms. Clark in what Ms. Clark perceived to be a loud voice. Ms. Clark got up from her desk and started to walk away, and Ms. Blackwood began to yell at her. Ms. Clark responded to Ms. Blackwood in a raised voice and left the building. The incident was overheard by everyone present in the office at the time. Ms. Clark reported another incident to Mr. Carter in e-mails dated February 17 and 18, 2005, involving Ms. Blackwood's reaction to a negative comment about Irene Kuziw, Mr. Martin's secretary, that Ms. Rouco made to Dean Heminger, a building inspector that Ms. Blackwood supervised. At Mr. Martin's request, Ms. Kuziw approached Mr. Heminger's desk, which was next to Ms. Rouco's desk, and asked Mr. Heminger to do two inspections as a special assignment from Mr. Martin. After Ms. Kuziw left their work area, Ms. Rouco questioned Mr. Heminger about his willingness to take an assignment from Mr. Martin when Ms. Blackwood was his supervisor. Ms. Rouco then commented to Mr. Heminger that Ms. Kuziw was "a serpent with two legs" or a "two-legged serpent." Ms. Kuziw did not hear the remark, but Ms. Clark overheard the comment. Ms. Blackwood was not present when Ms. Rouco first made the comment, but, approximately 15 minutes later, Ms. Rouco repeated the comment about Ms. Kuziw in Ms. Blackwood's presence, and Ms. Blackwood chuckled at the remark. Ms. Clark witnessed this incident and reported it to Mr. Martin and to Ms. Kuziw. Disciplinary procedures followed by Mr. Carter Based on the information he gathered during his investigation and on the incidents that occurred in February 2005, specifically the February 15, 2005, incident involving Ms. Strong and the February 4, 2005, incident involving Ms. Clark, Mr. Carter decided that Ms. Blackwood had committed misconduct in office and insubordination and that the appropriate discipline for her actions should be termination of her employment with the School Board. Mr. Carter reached the conclusion that termination was the appropriate discipline by considering the history of Ms. Blackwood's employment with the School Board over the previous five years, and he concluded that the behavior complained of by the staff and building inspectors in February 2005 was ongoing and formed a consistent pattern of behavior on Ms. Blackwood's part in her position as a supervisor. On February 17, 2005, Mr. Carter removed Ms. Blackwood from her duties as a Senior Supervisor of Building Inspectors and advised her in a memorandum that, effective immediately, she was assigned to administrative duties. Mr. Carter notified Ms. Blackwood in a letter dated March 10, 2005, that she was to report to his office on March 15, 2005, for "a pre-disciplinary meeting regarding your inappropriate supervisory conduct."21 No other conduct or specific incident was included in the notice dated March 10, 2005. Ms. Blackwood and her union representative attended the meeting on March 15, 2005, and Mr. Carter presented Ms. Blackwood with the materials he had collected during his investigation. These materials were quite extensive, and Ms. Blackwood asked if she could have additional time in which to study the information and formulate her response. They agreed that the pre-disciplinary meeting would be re-convened on April 5, 2005, and that the 20-day time frame in the Collective Bargaining Agreement for imposing discipline would be extended accordingly. At the meeting on April 5, 2005, Mr. Carter identified several areas of concern, which were discussed with Ms. Blackwood and to which Ms. Blackwood was allowed to provide an explanation. Specifically, Mr. Carter advised Ms. Blackwood of problems with her failure to demonstrate an appropriate leadership style, that she demonstrated a divisive leadership style, that she acted in a loud and threatening manner towards her co-workers, that there was evidence of her favoritism with regard to certain employees under her supervision, that her behavior was having a psychological and medical impact on some of her subordinates, that she engaged in threatening behavior regarding reports to the Department of Business and Professional Regulation, that her behavior resulted in multiple employees having to seek medical attention and/or requesting to be removed from under her supervision, that she failed to demonstrate a leadership style that supported the School Board's strategic plan, and that as a result of all of these behaviors, she had lost response among the employees in the Building Department such that it was limiting her ability to lead.[22] Mr. Carter also discussed with Ms. Blackwood the "Letter to the Editor" that circulated in the Building Department in February 2005 because, by the time of that meeting, it was known that Ms. Blackwood was the author.23 Ms. Blackwood was given the opportunity to respond to the charges presented by Mr. Carter, and she requested that Mr. Carter do a follow-up investigation with some of the employees he had previously interviewed. Mr. Carter met again with the employees pursuant to Ms. Blackwood's request. In a letter dated April 29, 2005, and addressed to Jerrod Neal, Field Staff Representative for the BTU-TSP, with a copy sent to Ms. Blackwood, Mr. Carter advised Ms. Blackwood that the letter constituted the 20-day notice of the intent to impose disciplinary action, as required by the terms of the Collective Bargaining Agreement. Mr. Carter continued: This letter is to inform you that, after completing the investigation regarding the allegations of inappropriate supervisory conduct by Ms. Blackwood, advising Ms. Blackwood of the charges and the basis for them, and meeting with you to consider Ms. Blackwood's position, I have decided to recommend that Ms. Blackwood be terminated/discharged from employment with the School Board of Broward County. This recommendation is based upon my determination that Ms. Blackwood has engaged in misconduct including, but not limited to, problems with effective communication, a leadership style inappropriate for a supervisor, violations of the School Board's workplace violence policy, and harassive [sic] conduct which has interfered with the ability of other individuals to perform their work responsibilities and resulted in emotional harm to some employees.[24] In a letter dated May 27, 2005, Mr. Carter transmitted to Ms. Blackwood a letter from Dr. Till advising her that Dr. Till was recommending to the School Board that she be terminated from her employment. An Administrative Complaint was attached to the May 27, 2005, letter, and Ms. Blackwood was told that the allegations in this complaint set forth the charges on which the recommendation was based. The School Board voted on June 7, 2005, to initiate termination proceedings with respect to Ms. Blackwood. Summary and ultimate findings of fact Pursuant to the provisions of Article Nine of the Collective Bargaining Agreement, Ms. Blackwood can only be disciplined if the discipline is imposed within 20 days of the date on which a violation occurred. In this case, the evidence presented by the School Board is insufficient to establish that Ms. Blackwood committed misconduct in office or insubordination as a result of her conduct occurring on or about February 15, 2005. The incident involving Ms. Blackwood and Ms. Clark occurred on February 4, 2005, outside the 20-day time period. Although the incident involving Ms. Strong occurred on February 15, 2005, Ms. Blackwood's including in an e-mail information that inaccurately conveyed the statement Ms. Strong made to her about Mr. Martin signing an application for a provisional license does not rise to the level of misconduct, even if it was part of a pattern of distortions by Ms. Blackwood. Ms. Blackwood's conduct on this occasion also failed to constitute gross insubordination because there was no evidence presented by the School Board to establish that she acted in violation of an order given by anyone with proper authority. Finally, to the extent that the draft "Letter to the Editor" formed a basis for the School Board's decision to terminate Ms. Blackwood's employment, there is no evidence that Ms. Blackwood committed misconduct by drafting the letter, nor was there any evidence that Ms. Blackwood had been ordered not to communicate to the press regarding the problems that she perceived with the Building Department and the School Board's building program in general. The evidence presented by the School Board regarding Ms. Blackwood's employment history is sufficient to establish that, between 2001 and February 2005, she engaged in acts of misconduct that were sufficiently serious that her effectiveness as a Senior Supervisor of Building Inspectors was severely impaired. The evidence presented by the School Board regarding Ms. Blackwood's employment history is also sufficient to establish that she engaged in numerous acts of insubordination that, taken in the aggregate, rose to the level of gross insubordination. Indeed, the evidence submitted by the School Board is sufficient to establish that, without doubt, Ms. Blackwood's conduct in the workplace and as a Senior Supervisor of Building Inspectors was totally unacceptable for an extended period of time. Pursuant to the undersigned's interpretation of the provisions of Article Nine of the Collective Bargaining Agreement, however, Ms. Blackwood cannot be disciplined for events occurring outside the 20-day time period set out in the Collective Bargaining Agreement; but for this conclusion, Ms. Blackwood's ongoing misconduct and insubordination would more than justify termination of her employment with the School Board. In their various attempts to discipline Ms. Blackwood, School Board personnel did not adhere to the disciplinary procedures set forth in the Collective Bargaining Agreement and were, therefore, unable to prevail against the grievances Ms. Blackwood filed with respect to each attempt to subject her to discipline. Because the School Board did not submit evidence sufficient to establish that Ms. Blackwood committed misconduct in office or insubordination within the 20-day time period set out in Article Nine of the Collective Bargaining Agreement, she cannot now be disciplined for these previous violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order dismissing the Amended Administrative Complaint against Charlene Rebecca Blackwood. DONE AND ENTERED this 7th day of March, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 7th day of March, 2007.
Findings Of Fact On February 7, 14 and 21, 1989, respondent, School Board of Pinellas County (Board), published a legal advertisement in an area newspaper inviting prospective bidders to submit proposals for certain construction work to be performed on two elementary schools, Walsingham and Cross Bayou, located in Largo and Pinellas Park, Florida, respectively. The bidders were advised that their bids must be "prepared and submitted in accordance with the drawings and specifications" and that such drawings and specifications could be obtained from the Board. Such bids were to be filed with the Board no later than 2:00 p.m. on March 6, 1989. The notice also provided that the bids would be opened the same day. Bids were timely filed by at least five contracting firms, including petitioner, Prelude Construction Company, Inc. (Prelude), and intervenors, Lincoln Construction Company (Lincoln) and Bandes Construction Company (Bandes). In filing these proposals, each bidder represented he had "thoroughly examined all of the contract documents." After the bids were opened and reviewed by Board personnel, Lincoln, Prelude and Bandes were ranked first, second and fourth, respectively, based upon the dollar amount of their proposals. 2/ Thereafter, the Board issued its notice of intended action on March 7, 1989, wherein it advised all parties of its intention to award the contract to Lincoln. In doing so, the Board concluded that, although a bid bond accompanying Lincoln's proposal was not dated March 5 or 6 as required by the specifications, the deviation was minor and could be waived. That action prompted Prelude to file its protest. Through testimony of Lincoln's vice-president, it was established that the Board staff intended to change its initial position and to recommend to the Board that Lincoln's bid proposal be rejected and the contract awarded to Bandes. This change was prompted by the Board staff's discovery on the day of hearing (April 3) that, with the exception of Bandes, all bidders had failed to list the, roofing subcontractor on their bid proposals. The Board staff accordingly concluded that all bidders except Bandes should be disqualified. The bid specification upon which the Board relies to award the contract to Bandes is found in Part One, paragraph 1.1 of section 07511 of the bid specifications. The requirement is a relatively new one and imposes the following requirement upon bidders: NOTE: The contractor is required to list the name of the roofing subcontractor on the form of proposal, Section 1C. Section 1C is entitled "Form of Proposal" and includes the following section on page 1C-3 to be filled in by the bidder: The following subcontractors will be contracted with on this project. Type of Subcontractor Name of Subcontractor (Trade Specialty) (Company/Firm) The column on the left side is intended to identify the subcontractor by specialty, such as plumbing or roofing, while the blank spaces in the right hand column are to be filled in by the bidders with the name of the subcontractor who will perform the specialty. The Board has not been consistent in requiring bidders to list the name of subcontractors on the bid documents. According to the uncontroverted testimony of Lincoln, the Board requires the listing of subcontractors on some projects but not on others. For example, on the specifications for the recently let contract for the prototype new media center at four elementary schools, the left hand column on the above form was filled in by the Board with five types of subcontractors who were required on the project, including roofing. This meant that the bidder was to fill in the blanks in the right hand column with the name of the subcontractor who he intended to use on each specialty. However, on other contracts, including the one under challenge, both columns in the Form for Proposal have been left blank, and Lincoln construed this to mean that the name of the subcontractor was not required. Indeed, Lincoln pointed out, without contradiction, that on a recent contract which left both columns blank, as was true in this case, it was awarded the contract even though it did not identify the roofing subcontractor on its proposal. Because of this prior agency practice, Lincoln assumed the same policy would be used again. However, Lincoln conceded it had failed to read the requirement in paragraph 1.1 of section 07511 before preparing its proposal. There was no evidence that Lincoln gained any substantial advantage over other bidders by this omission. Also relevant to this controversy is Paragraph 10A of the General Requirements. This item is found on page 1B-11 and reads as follows: Each bidder shall indicate the names of specific major Subcontractors if called for on the form of proposal. If listing of Subcontractors is required and the Bidder fails to list them, the bid may, at Owner's option, be disqualified. (Emphasis added) This authority to waive the requirement is reinforced by language in Paragraph 21 of the General Requirements which provides in part that "(t)he owner reserves the right to waive minor technicalities." According to the Board's outside architectural consultant, who was the author of a portion of the contract specifications including section 07511, the omission of the name of the roofing subcontractor is a "minor" technicality that can be waived. However, the consultant had no personal knowledge as to whether the provision had actually been waived by the Board on prior contracts.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered awarding the contract in question to Bandes Construction Company. DONE AND ORDERED this 20th day of April, 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 20th day of April, 1989.
