Findings Of Fact Respondent holds Certificate of Registration Number 2176 as an Architect issued by Petitioner. On May 6, 1969, Wayne F. Betts, State School Board Architect, sent an office memorandum to Floyd T. Christian, State Commissioner of Education, concerning construction of relocatable facilities under the Federal Migrant Program using federal funds that had to be committed prior to June 30, 1969. Betts recommended that an architect be employed to prepare the drawings and specifications for these facilities. On May 8, 1976, Christian, in a memorandum to Betts, stated that the suggestion that "an architect be employed to assist in the preparation of drawings and specifications for the trailers to be used for migrant education is a good one and I will see that it is done." He further stated therein "we do have someone in Gainesville working on specifications and plans now, and I will take the responsibility to see that an architect is employed and have you review them before they are sent out for bids." The units to be constructed were mobile migratory kindergarten units that consisted of trailer classrooms for prekindergarten children to be used at various places throughout the state. The individual referred to in Gainesville in Christian's memorandum was James T. Glisson, an employee of the University of Florida under a federal grant to design and develop such units. Betts believed that the Respondent thereafter was hired by the Department of Education to prepare preliminary and final drawings and specifications for the mobile units, and that he also was employed as a consultant to the Department to review bids submitted on the project. Although it was customary for a standard architect's contract (AIA) to be utilized for the foregoing purposes, Betts never saw such a contract with the Respondent for his services. During subsequent weeks, Betts conferred with the Respondent on drawings and plans submitted for approval and gave final architectural approval for the project. Thereafter, Respondent reviewed the bids which had been submitted to the state pursuant to advertisement and on June 20, 1969 recommended that the low bidder, National Structures, Inc., not receive the award because its bid was not responsive to the invitation for bids in that it contained certain exceptions that would have contravened legal requirements. Accordingly, he recommended that the award, be made to the next low responsive bidder, American Buildings of Pinellas, Inc. The staff of the Department of Education nevertheless recommended that the low bid be accepted. Commissioner Christian placed the matter before the State Board of Education in a memorandum, dated June 24, 1969, recommending that the award be made to American Buildings unless the low bidder agreed to conform to the plans and specifications. At a subsequent meeting of the board, Christian advised that no such letter had been received and award was made to American Buildings of Pinellas, Inc. for a total sum of $487,329.00. (Testimony of Betts; Petitioner's Exhibits 2,6,10; Respondent's Exhibits 1,2 & 3). On June 24, 1969, Respondent invoiced the State Department of Education for "architectural consultive services for migratory prekindergarten relocatables for 30 working days" during the period of April 20 through June 23, 1969 for total compensation of $1,500.00. He received a check. in this amount from the State Treasurer, dated August 13, 1969, which he endorsed and placed into a business account in his name on August 26, 1969. On the same date, he issued a check in the amount of $1,500.00 to the Southeastern Engineering Company, his employer, which the latter deposited into its general account. By letter from Commissioner Christian, dated November 3, 1969, Respondent was commended for his "coordination and leadership and production of laboratory plans and specifications in the initial prekindergarten units" and requested to continue as an architectural consultant at the rate of $50.00 per day in connection with the Florida Migratory Child Compensatory Program. Respondent did so and at various times during 1970 and 1971 invoiced the State Board of Education for further services in the inspection of additional phases of mobile prekindergarten units. By a memorandum, dated February 25, 1970, from Phillip S. Shaw, Comptroller of the Department of Education to Commissioner Christian, certain problems in connection with the project were pointed out, including the fact that there had been no contract with the Respondent or with James T. Glisson who had made numerous reports and conducted various inspection trips during the course of the project that normally would have been accomplished by departmental employees. Christian responded to this memorandum by his own of March 2, 1970 wherein he stated that arrangements had been made for Respondent to pay Glisson for the latter's work as a consultant and that the Respondent had been hired as a consultant at $50.00 per day rather than paying an architectural fee which would have cost the Department $30,000.00 or more and since most of the ideas of the design of the trailer were on existing programs. He further pointed out that Respondent had been employed on a continuing consultant basis to design the program mobile laboratory facilities of the migrant education section. (Petitioner's Composite Exhibits 2 & 3, Respondent's Exhibit 7). Work order no. 260 of Southeastern Engineering Company, dated May 15, 1969, shows Robert Bussey of St. Petersburg, Florida as the client who authorized work in reference to "mobile migratory kindergarten" to "prepare construction drawings, specifications, and bid documents for State Department of Education." It further contains a listing of draftsmen by name, including Respondent, and hours and dates of time attributed to the work thereunder. The initials "W.H.M." appear on the face of the document. An invoice under Respondent's letterhead, dated July 24, 1969, to American Real Estate Management Company, St.' Petersburg, Florida, referencing Work Order Number 260, reads as follows: Re: Mobile Migratory Kindergarten To invoice you for a partial payment for pro- fessional services rendered in connection with the contract between American Buildings of Pinellas, Inc. and the Florida State Department of Education. AMOUNT DUE $2,500.00 A check of the American Real Estate Management Company, dated July 31, 1969 payable to Respondent in the amount of $2,500.00 in payment of the aforesaid invoice was endorsed by the Respondent to Southeastern Engineering Company. Another check issued by the same firm on October 9, 1969 to Respondent in the amount of $2,000.00 for invoice 575 was also endorsed by Respondent to Southeastern Engineering Company. (Petitioner's Exhibits 7,8 & 9). Respondent testified substantially as follows: I have been a licensed architect in Pinellas County since 1955 and am a member of the American Institute of Architects. In 1969, I was employed as an architect in the firm of Southeastern Engineering Company, St. Petersburg, Florida, at a salary of $300.00 a week. I held 10 percent of the stock in that firm which was given to me by the firm in order to comply with the law. My sole function in that organization was to be responsible for architectural drawings and plans. I had nothing to do with the maintenance of records in the corporation. This was handled solely by my employer, Mr. King, who was an engineer. In the Spring of 1969, Mr. King told me that I was supposed to get together with Jake Glisson at the Florida State Museum in Gainesville in order to prepare working drawings and specifications of mobile trailers for the migrant section of the State Board of Education. King drew up the work order with Bussey in this matter and when I commenced the job, I did not know immediately that the work was for Bussey. I was not hired directly by the State Department of Education but assumed that this was done through King. It was my understanding that the drawings were to be done for the use of the State. I thereafter contacted Glisson who gave me rough drawings for the trailers. I prepared preliminary drawings within a week and took them to the migrant section in Tallahassee where I met with Mr. Culton of the migrant section, and other state employees who made recommendations concerning changes. As a result, I revised the drawings to ensure that they conformed to the needs of the State. I was not concerned with the problem of who paid for the work because I was merely on salary. My drawings for the project were approved by Mr. Betts, but most of my dealings at the Department of Education were with Mr. Culton. I knew that my plans would be let out for bid on the project. Joe Roach, Purchasing Agent of the Department, asked me to review the bids that had been received. I did so, and at the time was unaware that American Buildings of Pinellas County, Inc. was in any way associated with Bussey. The man with that firm whom I later dealt with while inspecting construction of the trailers was Vernon Burgess. It was not until 1974 that I learned from Burgess that Bussey had made a deal with Burgess whereby Burgess got a certain percentage of the contract price and Bussey the remainder. I billed the State for $1,500.00 for architectural consultative services and received that amount by check from the State. I deposited the check in my private business account because that was the practice of my firm when dealing with state or county government matters. However, on the same day, I wrote a check in a similar amount to Southeastern Engineering Company. I invoiced and received from American Real Estate Management the sum of $4,500.00 to prepare the plans and specifications for the project. I endorsed checks in this total amount to Southeastern Engineering. My recommendations to the Department of Education for award of the contract were based on valid reasons for not accepting the low bid. No one to my recollection told me to throw out that bid nor was I part of any scheme. After the contract was awarded, I inspected construction, of the various units for the state and billed the state for my time. I later inspected units which were constructed in successive chases of the project involving contracts awarded to other firms. At no time during my dealings with State officials did I inform anyone that Bussey was paying for the plans and specifications. It was my view that both Bussey and the State were my clients and that the State received the benefit of the plans that I drew without paying for them. Although the original drawings which I submitted to the State did not reflect or make reference to American Real Estate Management Company, they did show Work Order 260 thereon. I did not show that work order to anyone at the state offices and, in fact, did not see the work order myself at any time during the project since such forms were handled by others in my firm. However, I was not trying to hide anything because during the period 1969-1974, all of the purchase orders and the bills to American Real Estate Management remained in the offices of Southeastern Engineering Company. No attempt was ever made to destroy any books or records dealing with this matter. My plans later reflected the name "Motivation Systems, Inc." thereon because Bussey and Glisson formed this firm about 1970. (Testimony of Respondent)
Recommendation That the charge against Respondent Walter H. Melody, be dismissed. DONE and ENTERED this 1st day of October, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Selig I. Goldin, Esquire P.O. Box 1251 Gainesville, Florida 32602 William A. Patterson, Esquire Legal Building, Suite 208 447 3rd Avenue North St. Petersburg, Florida 33701 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF PROFESSIONS DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATIONS FLORIDA STATE BOARD OF ARCHITECTURE IN RE: WALTER H. MELODY, ) CASE NO. 76-249 ) FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER This cause came on to be heard before the Florida State Board of Architecture on 29 October 1976 and each of the five (5) members of the Board having read the Transcript of the Administrative Hearing, read all of the Exhibits and the Recommended Order of the Hearing Officer prior to the Hearing before this Board. The architect, WALTER H. MELODY, appeared through his attorney, William A. Patterson, Esquire. After discussion by the Board members and statements by Wayne F. Betts and counsel for the respective parties, it is thereupon concluded and ordered as follows:
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 Whether the award of a contract for Request for Proposal 031-MDW-1121 Fiber WAN Lakeland E-rate by Respondent, the School Board of Polk County, is contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact The School Board operates the public school system established for the School District of Polk County, Florida. See § 1001.30, Fla. Stat. The School Board is an authorized governmental entity allowed to contract for commodities or services using a competitive solicitation process. See §§ 1001.41(4), 1001.32(2), and 1010.04(2), Fla. Stat., and Fla. Admin. Code R. 6A-1.012(1)(e). The solicitation at the center of this protest is 031-MDW-1121, Fiber WAN Lakeland E-rate (the "RFP"). The Department published the RFP on December 2, 2020.4 The School Board initiated this competitive procurement seeking a contract for leased fiber to deliver wide area network ("WAN") communication services throughout the School District (the "WAN Services Contract"). The winning vendor's network design will directly connect the School District's main office building to approximately 65 school locations in and around Lakeland, Florida. Background Information: A WAN network provides dedicated broadband connectivity for computer networks that are geographically dispersed. For the RFP, the School Board contemplates a WAN network that delivers network resources, connectivity, and services to the various School Board facilities. WAN networks are designed using "highways" of crystal fiber optic cable. The fiber optic cables, which consist of strands smaller than a human 3 By requesting a deadline for filing a post-hearing submission beyond ten days after the filing of the hearing transcript, the 30-day time period for filing the Recommended Order is waived. See Fla. Admin. Code R. 28-106.216(2). 4 No vendor challenged the specifications in the RFP within 72 hours after the posting of the solicitation. hair, are fitted within a sheath. Sheaths are encapsulated by buffer tubes. Typically, 12 strands of fiber cable run through a buffer tube. The RFP: RFP Section 3.1 informed vendors that the School Board was seeking one of three options for its network infrastructure. These options included: 1) leased "lit" fiber, 2) leased "dark" fiber, or 3) leased "dark" fiber (IRU).5 Although the School Board intended to select only one "solution" for the WAN Services Contract, the RFP invited interested vendors to "propose one, two, or all three options" for the School Board's consideration. The School Board purposefully provided vendors the flexibility to design and engineer a product the vendors believed was the best fit for the School District. As stated in RFP Section 3.1, "[t]he District is not advocating or mandating any preconceived network design or construction route and leaves this decision up to the proposer to present their best solution while recognizing the cited termination locations." The School Board presented Denise Whitaker to discuss the RFP, as well as the process and procedures the School Board followed to evaluate the proposals. Ms. Whitaker served as the School Board's Purchasing Agent responsible for the RFP. In her role, Ms. Whitaker, together with a team, developed, drafted, and prepared the RFP documents and forms. Commenting on RFP Section 3.1, Ms. Whitaker relayed that the School Board was open to any of three scenarios for the WAN services. Ms. Whitaker (and later Rob Oyler) explained that: "Lit" fiber, as referenced in RFP Section 4.1, is a fiber network that is ready-made to transmit computer signals. To send data, an optical transceiver module is attached to an end point of the fiber cable, which shoots a laser through one or more of the crystal fiber strands. When activated, this 5 IRU is an acronym for Indefeasible Right of Use, which means an exclusive lease to use a telecommunications network. laser "lights" the fiber, and the fiber strand is immediately ready to send data and information. "Dark" fiber, as referenced in RFP Section 4.2, like "lit" fiber, is a WAN network that is ready to transmit data. However, once the network is constructed, the fiber is left dormant. In other words, the vendor will not activate the laser at the end point of the fiber cable. Instead, the customer (the School Board) will light the fiber using its own transceiver module. Leased Dark fiber (IRU), as referenced in RFP Section 4.3, is essentially a communications network built, owned, and operated by the vendor. To lease a dark fiber IRU, the customer (the School Board) would purchase the right to use a certain amount of network capacity for a specified number of years. Ms. Whitaker testified that the leased "lit" fiber option (the proposal the School Board eventually selected) required vendors to propose a price quote for an initial 60-month contract period, as well as five additional 60- month renewal terms, for a total of 360 months (30 years). As stated in RFP Section 4.1: Price quotes are requested for services provided on a month-to-month basis, as well as 60 month term of service with up to five additional 60 month renewal options. Ms. Whitaker explained that during the initial 60-month contract, the winning vendor was expected to construct, install, and then maintain a "lit" fiber network for the School Board's exclusive use. The School Board would then lease the "lit" fiber network from the vendor for the length of the contract. Thereafter, per RFP Sections 4.1 and 8.2, the School Board and the winning vendor could agree to renew the WAN Services Contract for up to five additional 60-month periods. Ms. Whitaker further stated that each vendor had to agree not to increase its pricing during the 360-month (30-year) total contract length. In other words, the Monthly Recurring Costs that each vendor quoted for the initial contract term would remain the same through each and every contract renewal period.6 Ms. Whitaker further stated that the School Board intended to apply for federal funding through the Federal Communication Commission's ("FCC") E-rate program to cover up to 90 percent of the cost of the fiber network.7 See RFP Sections 1.1 and 3.1 and Appendices G and H. RFP Section 4 specifically stated that "[t]he District will follow the purchasing policies of the School Board of Polk County, Florida and requirements and procedures of the FCC's E-rate program as administered by the Universal Service Administrative Company to be eligible for all available funding." Therefore, the School Board intended to use information contained within the winning proposal to apply for E-rate funding and obtain an E-rate funding commitment through the Universal Service Administrative Company ("USAC"). Obtaining E-rate funds would mean that the School Board would not have to bear the full price of the WAN Services Contract. Five vendors timely responded to the RFP. Zayo presented a proposal for the leased "lit" fiber option. WANRack submitted proposals for both leased "lit" fiber and leased "dark" fiber. The School Board also received proposals from Southern Light (leased "dark" fiber and dark fiber (IRU)); 6 Ms. Whitaker testified that the School Board landed on a 30-year procurement term for all three options as a way to establish an equal standard by which to compare and score the three different network designs ("lit," "dark," or dark IRU). This 30-year "apples-to-apples" comparison created a fairer analysis of the best network solution among the proposals. For the leased "lit" fiber option, as stated above, vendors were to submit a Financial Proposal Worksheet listing prices for a 360-month length of service. For the leased "dark" fiber option, vendors were to offer a price for an initial 120-month/10-year term of service with up to ten additional 24-month renewal options. For the leased dark fiber (IRU) option, vendors were to quote a 20-year indefeasible right of use price with up to five additional 24-month renewal options. 7 The FCC E-rate program provides funding through federal subsidies to schools for computer networks, internet access, and telecommunications systems. As explained by Mr. Oyler, the FCC created the E-rate program to provide financial support for public services. Mr. Oyler detailed that the E-rate program is funded by a universal tax on telecommunication devices. Summit (leased "lit" fiber (three options), leased "dark" fiber (three options), and hybrid "dark" fiber (three options)); and Frontier Communications (leased "lit" fiber). To score the proposals, the School Board selected three individuals to serve on an evaluation committee. The evaluation committee consisted of School Board employees Joseph "Sid" Lee, Curtis Hodnett, and Michael Chiavuzzi (collectively referred to as the "Evaluators"). Once the Evaluators were selected, Ms. Whitaker became their "facilitator." Ms. Whitaker explained that she was responsible for guiding the Evaluators through the scoring process. She was also charged with ensuring that the Evaluators followed all applicable procurement policies and procedures. Prior to scoring the proposals, Ms. Whitaker provided each Evaluator with the School Board's Request For Proposal (RFP) Evaluator's Guide (the "Evaluator's Guide"). The Evaluator's Guide explained that, "the evaluation committee members are responsible for reading and evaluating all responses for their completeness and quality of content. … Committee members meet together to discuss the proposals and determine if they missed anything during their initial review." The Evaluator's Guide further instructed each Evaluator to "exercise [their] independent judgment" and to not be "dependent on anyone else's judgment, wishes, or demands." Each Evaluator was to be free from "any influences from within the committee." Each Evaluator also signed a Conflict of Interest and Non-Disclosure Statement in which they certified that "no other relationship with or bias towards any offeror exists which will prevent me from evaluating any proposal solely on its merits." After Ms. Whitaker received the vendors' proposals, she read through them to ensure that the proposals were complete and adequately responded to the RFP. She then distributed them to the Evaluators for their individual review and scoring. RFP Section 6.2 established the RFP's evaluation criteria. The Evaluators were to score and rank vendors' proposals on a scale of 100 points. The specific award criteria and corresponding point values were set out as follows: Evaluation Criteria Maximum Possible Points Experience, Qualifications, and References ("Experience") 15 Methodology 20 E-rate eligible recurring and one-time Cost of Services ("E-rate Eligible Cost")8 25 E-rate ineligible recurring and one- time Cost of Services9 15 Demonstrated scalability of technology through pricing for higher tiered bandwidths ("Scalability") 10 Overall ability to meet the district needs ("Overall Ability") 15 Total Points 100 Under RFP Section 6.3, the Evaluators awarded points by placing a vendor's response to a specific criterion into a certain category. Based on the category assigned, a multiplier was applied to calculate the score. The categories which an Evaluator could assign were: Excellent (with a score multiplier of 1.0); Very Good (with a score multiplier of 0.8); Good (with a score multiplier of 0.6); Fair (with a score multiplier of 0.4); 8 RFP Section 6.2 emphasized that the E-rate Eligible Cost was the highest weighted factor. 9 No points were awarded to any vendor for the E-rate ineligible cost of services category because no vendor identified an E-rate ineligible cost in its proposal. Poor (with a score multiplier of 0.2); Unacceptable (with a score multiplier of 0.0). For example, if an Evaluator deemed a vendor's Methodology to be "Excellent," the Evaluator applied a score multiplier of 1.0 to the total points available for that subsection (20 points) to calculate the total points the vendor would receive for that evaluation criterion, i.e., 1.0 x 20 equals 20 total points. If an Evaluator determined that a vendor's Methodology was "Very Good," then the Evaluator applied a score multiplier of 0.8 to the total points available to reach the score awarded, i.e., 0.8 x 20 equals 16 total points. After the Evaluators completed their reviews, each Evaluator's score was added together to produce a final score for each proposal. The proposal receiving the highest point total would be designated the highest ranked proposal. After the Evaluators received the proposals, they met for two public meetings during which they reviewed, discussed, and scored all proposals. The first meeting took place on January 13, 2021. Initially, Ms. Whitaker instructed the Evaluators on the RFP's evaluation criteria and process. She also handed each Evaluator an Evaluation Criteria Sheet, which they were instructed to reference and use when scoring the proposals. Over the course of the first meeting, the Evaluators and Ms. Whitaker reviewed each proposal to determine whether the vendors properly responded to the RFP's requirements. They also discussed the merits of the different proposals. After several hours of discourse, however, the Evaluators realized that they could not complete their scoring in a single session. Therefore, the Evaluators agreed to schedule another meeting. The Evaluators reconvened for the second public meeting on January 20, 2021. During this meeting, the Evaluators determined that Zayo, WANRack, and Summit all submitted responsive proposals. The proposals from Southern Light and Frontier Communications, on the other hand, were nonresponsive. The Evaluators found that Southern Light failed to list a third customer reference per RFP Section 5.3, and Frontier Communications only provided a proposal for the first five years of service. Thereafter, the Evaluators finished their reviews, awarded their points (electronically), and turned their completed Evaluation Criteria Sheets into Ms. Whitaker. The Evaluators scored the proposals of Zayo and WANRack as follows: Mr. Lee: Experience (15 points): Zayo: 15 points WANRack: 15 points Methodology (20 points): Zayo: 16 points WANRack: 20 points E-Rate Eligible Cost (25 points): Zayo: 25 points WANRack: 21 points Scalability (10 points): Zayo: 8 points WANRack: 10 points Overall Ability (15 points): Zayo: 12 points WANRack: 15 points Total Points Awarded by Mr. Lee: Zayo: 76 points WANRack: 81 points Mr. Chiavuzzi: Experience (15 points): Zayo: 15 points WANRack: 15 points Methodology (20 points): Zayo: 16 points WANRack: 20 points E-Rate Eligible Cost (25 points): Zayo: 25 points WANRack: 21 points Scalability (10 points): Zayo: 8 points WANRack: 10 points Overall Ability (15 points): Zayo: 12 points WANRack: 15 points Total Points Awarded by Mr. Chiavuzzi: Zayo: 76 points WANRack: 81 points Mr. Hodnett: Experience (15 points): Zayo: 15 points WANRack: 15 points Methodology (20 points): Zayo: 16 points WANRack: 20 points E-Rate Eligible Cost (25 points): Zayo: 25 points WANRack: 21 points Scalability (10 points): Zayo: 8 points WANRack: 10 points Overall Ability (15 points): Zayo: 12 points WANRack: 15 points Total Points Awarded by Mr. Hodnett: Zayo: 76 points WANRack: 81 points At the final hearing, each Evaluator testified how they approached the review process and awarded points, as follows: Joseph "Sid" Lee: Mr. Lee works for the School Board as a Senior Manager in charge of electronic equipment repair and support. In his job, Mr. Lee manages all computer repairs and telecommunication support for the School Board. Mr. Lee commented that, in addition to serving as an Evaluator on the RFP, he also participated on the team that helped develop the RFP's specifications with Ms. Whitaker. Mr. Lee represented that the three Evaluation team members were School Board employees with computer networking responsibilities and were the most experienced employees in the RFP's subject matter. Mr. Lee testified that after he was selected as an Evaluator, Ms. Whitaker gave him a copy of the Evaluator's Guide, which he "skimmed" through. He also recalled that Ms. Whitaker provided him approximately seven proposals, which he read. In formulating his scores, Mr. Lee described the evaluation as the combination of a joint and individual effort amongst the Evaluators. First, the three Evaluators walked through each proposal and discussed the merits and deficiencies of the various sections. They then, individually, awarded points as appropriate. When awarding points, Mr. Lee testified that he applied the point values and procedures laid out in RFP Sections 6.2 and 6.3. Mr. Lee asserted that he used the same analysis and evaluation process for each proposal. He further stated that all his rankings and scores were based solely on his evaluations of the various proposals during the two January meetings. He asserted that he had no discussions outside of the two public meetings with any person regarding his review. Regarding his score for E-Rate Eligible Cost, Mr. Lee explained that the School Board's Purchasing Department (Ms. Whitaker) actually calculated the E-rate Eligible Cost score, not the Evaluation Team. Mr. Lee understood that Ms. Whitaker determined that Zayo's proposal should receive the top description of "Excellent" for the maximum 25 points. Mr. Lee relayed that Ms. Whitaker found that WANRack's proposal should be assigned the score of "Very Good," which equaled 21 points. Mr. Lee testified that Ms. Whitaker provided him the scores (25/21 points), which he then inserted into his score sheet. Mr. Lee further conveyed that he is familiar with and has worked on School Board E-rate projects. Mr. Lee was aware that E-rate funds are granted by the FCC to help schools pay for computer services, including the fiber network the School Board seeks through this RFP. Mr. Lee testified that the School Board hopes that the E-rate program will cover 90 percent of the WAN Services Contract cost. Mr. Lee also recalled a discussion during the January 20, 2021, meeting when the Evaluators debated the possibility that the E-rate program might have an issue awarding funds for Zayo's proposed network. Mr. Lee understood that Zayo's network design might contain "redundancies," the cost of which would not be covered by E-rate. (Mr. Lee testified that WANRack's proposed methodology did not raise this concern.) Consequently, Zayo's proposed network configuration might not qualify for E-rate funding. For the Methodology criterion, Mr. Lee awarded WANRack with an "Excellent" (the maximum 20 points) based on its proposed network design. He gave Zayo's network a "Very Good" for 16 points. Mr. Lee explained that he had no concerns with the efficacy of WANRack's proposed "point-to-point" or "hub and spoke" network. Based on his discussion with the other Evaluators during their January meetings, he believed that WANRack's solution would mesh well with the School Board's existing network and equipment. The School Board would not be required to change or modify anything to accommodate WANRack's network design. On the other hand, Mr. Lee described what he believed to be a flaw in Zayo's "Ring Topology" design. Mr. Lee believed that Zayo's network was susceptible to multiple points of failure. Mr. Lee explained that a "ring" network is devised to connect sites in an aggregated ring before funneling into the School District central office. Therefore, a single failure along a fiber cable line could affect multiple locations. WANRack, on the other hand, proposed a central hub to be installed at the School District's office building. WANRack would then build a point-to-point connection directly from the hub to each of the 65 separate school sites. Mr. Lee stated that the advantage of WANRack's network solution is that a point-to-point design only exposes the network to a single point failure along the fiber cable between two points. In other words, one failure within the network would only affect one school destination as opposed to multiple sites. In addition, Mr. Lee believed that Zayo's "ring" topology would lead to additional costs for the School Board. Mr. Lee noted his concern on his Evaluation Criteria Sheet where he wrote, "Zayo would require additional equipment for the installation which would cause the district a large overall increase in cost." Mr. Lee explained that he wrote this comment during the January 20, 2021, meeting after a discussion with the other Evaluators regarding the possibility that the School Board might have to purchase extra equipment to accommodate Zayo's design. Mr. Lee understood that this supplemental equipment could include additional rack space or power sources. Mr. Lee testified that the possibility that Zayo's proposal would cause the School Board additional costs led to his decision to categorize Zayo's Methodology as "Very Good," instead of "Excellent." For Scalability, Mr. Lee awarded WANRack's proposal with an "Excellent" (the maximum 10 points), and Zayo's proposal with a "Very Good" for 8 points. Mr. Lee explained that RFP Section 4.1 required each leased "lit" fiber proposal to be scalable to 100Gbps (gigabits per second), without limitation, at the same cost as 1GB/sec. The Scalability category contemplated the School Board's need to increase bandwidth and internet speed in the future. Mr. Lee testified that he based his score for Scalability on his overall discussion with other Evaluators. He understood that WANRack's proposed network design provided fiber dedicated to the School Board's use with no additional cost to the School Board. For Overall Ability, Mr. Lee awarded WANRack with an "Excellent" (the maximum 15 points), and Zayo with a "Very Good" for 12 points. Mr. Lee testified that in scoring this criterion, he contemplated that WANRack's proposed network would not require the School Board to make any infrastructure changes. As a final point, during his testimony, Zayo sharply examined Mr. Lee regarding one specific comment WANRack included in its proposal. The RFP Section 5.3 required each vendor to "provide three (3) references from current or recent customers (preferably Florida K-20) with projects equivalent to the size of The District or larger." WANRack, in its response, identified four referral projects. One of these projects was a current contract with "Polk County-FL." For the point of contact for this project, WANRack identified Mr. Lee, followed by his phone number and email address (sid.lee@polk- fl.net). Upon questioning, Mr. Lee disclosed that he is familiar with WANRack based on his past working relationship with the company on the "Polk County-FL" WAN contract. Mr. Lee explained that in 2020, he served as an evaluator for the School Board's RFP 032-MDW-0220, entitled Ethernet Service Bartow Sites E-rate (the "Bartow Contract"). WANRack won that RFP and currently provides the requested services to the School Board. Mr. Lee testified that, from September 2020 through May 2021, he regularly received biweekly status updates from WANRack's contract manager regarding WANRack's progress on the Bartow Contract. Despite this regular interaction, however, Mr. Lee urged that none of his communications with WANRack representatives involved the WAN Services Contract. He further testified that he never spoke to WANRack during the RFP scoring process. Neither did WANRack ever attempt to exert any influence or pressure on him regarding his evaluation of its proposal for the WAN Services Contact. Finally, Mr. Lee declared that WANRack never consulted him about using his name as the point of contact for the Bartow Contract. He had no knowledge of WANRack's decision to reference him in its proposal for the WAN Services Contract, nor did he approve it. Michael Chiavuzzi: Mr. Chiavuzzi currently works for the School Board as a Senior Manager of Network Operations. In this role, he oversees all network operations between the School District and the different school locations including connectivity, data storage, and security issues. Similar to Mr. Lee, Mr. Chiavuzzi served on the team that helped develop the RFP with Ms. Whitaker. After Mr. Chiavuzzi was selected as an Evaluator, Ms. Whitaker provided him with a copy of the Evaluator's Guide, as well as access to electronic versions of all proposals. Prior to scoring, Mr. Chiavuzzi read through the Evaluator's Guide and all of the proposals. As with Mr. Lee, Mr. Chiavuzzi recounted meeting with the other Evaluators and Ms. Whitaker for two public meetings. During the first meeting on January 13, 2021, Mr. Chiavuzzi testified that the Evaluation Team reviewed all the proposals to ensure that they contained the required forms and information. During the second meeting on January 20, 2021, the Evaluators awarded their scores. Echoing Mr. Lee, Mr. Chiavuzzi expressed that during the meetings, the Evaluators walked through each proposal and jointly examined how the different vendors met the evaluation criteria. They also discussed any concerns they had with any of the proposals. Mr. Chiavuzzi recalled that the Evaluators specifically addressed whether a proposal imposed additional costs upon the School Board for equipment that might be needed to support a particular network design. Mr. Chiavuzzi further relayed that the Evaluators explicitly compared and contrasted the benefits of WANRack's point-to-point network as opposed to Zayo's "ring" topology. The Evaluation Team also weighed the advantages and disadvantages of WANRack's aerial network design versus Zayo's intent to construct an entirely underground network. When scoring the proposals, Mr. Chiavuzzi testified that he applied the scoring matrix and procedures laid out in RFP Sections 6.2 and 6.3. He further voiced that he looked at the information in each proposal, as well as that vendor's references and prior projects. Regarding WANRack and Zayo, Mr. Chiavuzzi commented that both vendors were very experienced, and presented good references and qualifications. As to the Methodology category, Mr. Chiavuzzi awarded WANRack with an "Excellent" (20 points) and Zayo with a "Very Good" (16 points). To reach this score, Mr. Chiavuzzi explained that he looked at the proposed network solution each vendor offered the School Board. Mr. Chiavuzzi testified that he believed that WANRack's point-to-point network was superior to Zayo's "ring" network. He concluded that WANRack's design, which would run through aerial cables, was easier to maintain, modify, and repair, as well as presented fewer points of failure. Conversely, Mr. Chiavuzzi determined that Zayo's methodology contained more potential points of failure. Mr. Chiavuzzi repeated Mr. Lee's comment that the Purchasing Department (Ms. Whitaker) scored the E-rate Eligible Cost criterion. Mr. Chiavuzzi was under the impression that Ms. Whitaker calculated the scores based on a formula included in the RFP. However, he was not aware of the actual computations. For Scalability, Mr. Chiavuzzi awarded WANRack's proposal with an "Excellent" (the maximum 10 points), and Zayo's proposal with a "Very Good" (8 points). Mr. Chiavuzzi based his score on the fact that WANRack proposed extra fiber cables and optic modules for the School Board's future use. On the other hand, Mr. Chiavuzzi determined that Zayo's network might not accommodate future build-out. This limitation would force the School Board to expend additional costs to support Zayo's efforts to increase the bandwidth of its system. For Overall Ability, Mr. Chiavuzzi awarded WANRack with "Excellent" (the maximum 15 points), and Zayo with "Very Good" (12 points). Mr. Chiavuzzi's score was a cumulation of the various factors he previously identified including his conclusion that WANRack's point-to-point network design offered a more attainable and reasonable solution to the WAN Services Contract with less potential points of failure, as well as the fact that WANRack's design included multiple strands of fiber and extra modules for the School Board's future needs. Zayo's proposed network, in contrast, did not dedicate as much fiber for the School Board's use and contained multiple points of failure. Finally, Mr. Chiavuzzi asserted that his rankings and scores were based solely on his personal evaluation and independent judgment. Mr. Chiavuzzi expressed that he considered all relevant criteria and factors described in the RFP, and was not influenced by any vendor. Finally, Mr. Chiavuzzi stated that, when scoring, he looked for the best vendor for the School Board, and he formulated his scores in good faith. Curtis Hodnett: Mr. Hodnett currently works for the School Board as a Senior Wide Area Network Engineer. In this job, Mr. Hodnett manages the network connections between the School District's main offices and the different school sites. As with Mr. Lee and Mr. Chiavuzzi, Mr. Hodnett served on the team that helped develop the RFP with Ms. Whitaker. Mr. Chiavuzzi is his supervisor. After Mr. Hodnett was selected as an Evaluator, Ms. Whitaker provided him with a copy of the Evaluator's Guide, as well as an electronic version of all the proposals (which he downloaded). Mr. Hodnett testified that he read through the Evaluator's Guide and all of the proposals prior to scoring. Mr. Hodnett also confirmed that the Evaluators met for two public meetings during which they reviewed and scored the proposals. Mr. Hodnett recalled that when the first meeting on January 13, 2021, ran late, the Evaluators decided to schedule a second meeting to complete their review. When scoring the proposals, Mr. Hodnett testified that he applied the scoring procedures established in RFP Sections 6.2 and 6.3. For Methodology, Mr. Hodnett awarded WANRack with an "Excellent" (20 points) and Zayo with a "Very Good" (16 points). Explaining his specific scores, Mr. Hodnett testified that he believed that WANRack's "super simple" network configuration would enable data traffic to be more easily routed across the network. He also found that WANRack's proposal provided all essential support equipment, including an additional power source, if necessary. Conversely, Mr. Hodnett believed that the School Board would need to provide additional equipment and power to support Zayo's network design, which would result in added costs to the School District over the life of the contract. Mr. Hodnett also found WANRack's point-to-point/hub-and-spoke design superior to Zayo's "ring" topology. Mr. Hodnett explained that, as electronic data is transmitted through the different sites located along a "ring" network, the system's bandwidth can be diluted. A point-to-point network, however, avoids this problem. Mr. Hodnett also appreciated the fact that WANRack's design not only provided two "lit" fiber strands for the School Board's immediate use, but also included 10 additional strands of fiber for future "build-out" purposes (12 total fiber strands). Zayo, however, only offered two fiber strands as part of its proposal. Regarding the School Board's desire to use E-rate funding, Mr. Hodnett was aware that the School Board intended to fund up to 90 percent of the WAN Services Contract with E-rate funds. Mr. Hodnett further relayed that, to be eligible for E-rate funds, he understood that the project's construction must be completed within one year from the request for E-rate support. For Scalability, in awarding WANRack's proposal an "Excellent" (10 points), and Zayo's proposal a "Very Good" (8 points), Mr. Hodnett explained that the ability of Zayo's proposed solution to scale up to higher bandwidths was limited by the shared network design, which included only two strands of fiber cable. WANRack's design, on the other hand, would enable more data and information traffic to be routed through District offices. Mr. Hodnett again referred to the fact that WANRack's design included two "lit" fiber strands, as well as ten additional strands for future use. For Overall Ability, Mr. Hodnett awarded WANRack an "Excellent" (15 points), and Zayo a "Very Good" (12 points). Mr. Hodnett explained that the Methodology and Scalability of WANRack's proposal offered a "better fit" for the School Board. Mr. Hodnett also believed that WANRack's proposed network would allow the School Board to more easily control the WAN network. Conversely, Mr. Hodnett reduced Zayo's "overall" score due to lingering questions regarding the amount of data that Zayo's network could route to the District sites through the "ring" design. In addition, Mr. Hodnett wondered whether the redundancies in Zayo's design would negatively impact the School Board's request for E-rate funding. Finally, Mr. Hodnett was concerned that the School Board would have to provide additional costs, manpower, and resources to ensure that Zayo's network got up and running. With their proposals, per RFP Section 5, each vendor submitted a "Financial Proposal Worksheet." (A blank Financial Proposal Worksheet was included with the RFP at Attachment 2.) The Financial Proposal Worksheet required the vendors to complete a cost spreadsheet for the initial 60-month contract term, together with a separate cost spreadsheet for each of the five 60-month options. To score the E-rate Eligible Cost criterion, Ms. Whitaker prepared a Cost Summary of the E-rate Eligible Cost for each proposal. Ms. Whitaker used the price evaluation procedure set forth in RFP Section 6.3, Calculation of the cost, which stated: Points for the cost shall be determined by summing the total cost at 100GB for all sites in the proposal for all options. Distribution of points for evaluation of cost will be calculated using the following formula: lowest proposed cost/proposer's cost x total point value = proposer's points. Using this formula, the vendor with the lowest total cost would receive 100 percent of the possible points. Ms. Whitaker's Cost Summary revealed that Zayo's proposed price for leased "lit" fiber ($10,239,494.99) was the lowest price submitted of all bidders.10 Therefore, based on the price formula, Zayo's proposal received the maximum 25 points. WANRack's price ($12,467,196.36) was the second lowest price for leased "lit" fiber. Accordingly, WANRack's proposal received the second highest score (21 points). After all Evaluators completed their scoring, Ms. Whitaker tabulated the total scores for each proposal to determine the vendors' final scores. WANRack's proposal for its leased "lit" fiber option received the highest ranking with a score of 81. Zayo's leased "lit" fiber proposal received the second highest ranking with a score of 76. On January 27, 2021, Ms. Whitaker posted a Notice of Recommended Award (the "Notice of Award"). The Notice of Award reported that, at a School Board meeting to be held on February 23, 2021, a recommended bid award would be made to "WANRack Holdings, LLC," for WANRack's Leased Lit Fiber Services Option. On February 23, 2021, the School Board unanimously voted to approve the recommendation to award the WAN Services Contract to WANRack. 10 Zayo, in its proposal, quoted a total price of $10,239,494.99. It appears that throughout this matter, the parties rounded this figure up to $10,239,495.00. Both numbers were used interchangeably at the final hearing, as well as in this Recommended Order. On March 10, 2021, Ms. Whitaker wrote a letter to WANRack stating: The School Board of Polk County, Florida, in regular session, on Tuesday, February 23, 2021 approved RFP 031-MDW-1121 Fiber WAN Lakeland E-rate recommended bid award to WANRack, LLC. The contract between the parties consists of RFP 031-MDW-1121 and all requirements, attachments, worksheets, appendices, addenda and WANRack's proposal signed December 29, 2020 and submitted. This constitutes the complete agreement between the proposer and the District. An additional agreement is not required. The initial contract period will begin on or about July 1, 2021. On March 11, 2021, the School Board initiated its request for E-rate funding for the WAN Services Contract. The School Board prepared and submitted two FCC Form 471 applications to USAC regarding its contract with WANRack. Zayo's Protest: In its protest, Zayo contends that the manner in which the Evaluators reviewed, then scored, the proposals was arbitrary or capricious, clearly erroneous, or contrary to the RFP specifications. Zayo further argues that the evaluation committee members awarded WANRack's proposal points to which it was not entitled. In addition, Zayo maintains that WANRack's proposal violates E-rate requirements and is therefore nonresponsive. As a result, WANRack improperly received the highest point total and was undeservedly awarded the WAN Services Contract. To support its allegations, Zayo presented the testimony of Matt Mulcahy. Mr. Mulcahy is the Solutions Engineering Director for Zayo. In this role, Mr. Mulcahy supervises Zayo's sales engineers, who support Zayo's sales teams. He also designs Zayo's WAN networks, including Zayo's proposed "ring" topology design for this RFP. Regarding the Methodology behind Zayo's proposal, Mr. Mulcahy explained that the network that Zayo designed for the School Board would consist of 100 percent underground cable. Mr. Mulcahy stated that, conversely, WANRack intends to route 75 percent its network fiber through aerial installation. Mr. Mulcahy asserted that, in Florida, Zayo's design provides a far better protected and reliable WAN infrastructure because buried cables are substantially more resistant to hurricanes and tropical storms. Mr. Mulcahy conceded, however, that aerial installations are less expensive to maintain and repair because of the ease of access. Mr. Mulcahy also commented that Zayo's network solution offers superior "fault tolerance." Mr. Mulcahy explained that WANRack's proposal includes many more miles of fiber than Zayo's design. Mr. Mulcahy declared that the larger amount of fiber cable increases the risk of failure along the network. And, any point of failure would cause a loss of service to a network's end point. Mr. Mulcahy surmised that the Evaluators may not have understood the significance of fault points. As to the points awarded to Zayo for Scalability, Mr. Mulcahy confirmed that Zayo's network design only dedicated two fiber strands to transmit data throughout the School District. However, Mr. Mulcahy advanced that the RFP did not require vendors to offer a certain number of fibers for the School Board's use. Instead, the RFP charged vendors to present a solution that offered an initial bandwidth of 10Gbps that could be "scaled" up to 100Gbps. Mr. Mulcahy explained that, in essence, the RFP sought network designs that included the capability of increased bandwidth, which would accommodate the School Board's "future business ventures." Based on this directive, Mr. Mulcahy asserted that Zayo's proposal roundly meets the RFP's Scalability criterion because it is fully scalable to a bandwidth of 100Gbps using only two fibers. Therefore, he firmly disagreed with any Evaluator's comments or scores critical of the number of fiber strands Zayo built into its proposed network infrastructure. Further, Mr. Mulcahy testified that, in practice, Zayo's network designs routinely pull 12 strands into a building as is the industry practice. Regarding the Evaluators' concerns with additional costs necessary to support Zayo's proposal, Mr. Mulcahy conceded that Zayo's network design would require the School Board to purchase supporting equipment. Mr. Mulcahy contemplated that Zayo's proposed network would cost the School Board approximately $6,000 to $12,000 to install laser optics/pluggable modules at the 65 school sites within the District. On the other hand, Mr. Mulcahy rejected the supposition that the School Board would need to purchase a supplemental power source to augment Zayo's design. Plus, the RFP represented that the School Board would provide any necessary power to support the WAN network. See RFP Addendum 2, Question 6. Mr. Mulcahy added that he believed that WANRack's network will also require the School Board to purchase pluggable modules and switches. He surmised that the School Board would spend $5,000 to $10,000 to purchase equipment to accommodate WANRack's point-to-point design, as well as install a pluggable port and a more sophisticated switch at the District's hub site. WANRack introduced Rob Oyler to discuss the details of its proposal for the WAN Services Contract. Mr. Oyler founded WANRack and currently serves as the company's Chief Executive Officer. In this role, Mr. Oyler oversees all aspects of WANRack's business operations. Mr. Oyler stated that he started WANRack with a focus on school systems similar to the School Board. He relayed that all schools need internet access and technological services. WANRack provides this support through the construction of private fiber networks. Mr. Oyler testified that WANRack proposed a point-to-point network solution for the School Board. Mr. Oyler explained that this type of design contemplates an exclusive, "private highway" of fiber cable and equipment. WANRack would establish a central hub site at the District's headquarters. Network cables would then run directly from the hub to the separate District buildings. Mr. Oyler asserted that WANRack offered the School Board a "turnkey" solution. In other words, WANRack would "light" the fiber cable so that the network would be ready for the immediate flow of data as soon as the School Board accessed it. Mr. Oyler added that WANRack would be prepared to modify or supplement its design should the School Board elect to increase the available bandwidth or add more technology. However, WANRack will not charge the School Board any additional cost for this future work. Mr. Oyler confirmed that WANRack intends to route the majority of the School Board's network via aerial installation. Mr. Oyler anticipated that WANRack would construct approximately 111 miles of fiber cable to connect the 65 school locations. Mr. Oyler acknowledged that this aerial network will be more exposed to points of failure due to tropical storms and hurricanes than underground cables. However, Mr. Oyler countered that in the event of a failure or outage, aerial cable is much more accessible for repairs or replacement. With the above background information and testimony, Zayo presented a number of arguments asserting that the School Board's recommended award to WANRack must be rejected. Each specific challenge, along with the School Board's response, is analyzed as follows. The Evaluation Committee Failed to Follow the Mandatory Requirements of the RFP and School Board Policy in Scoring the Proposals: Zayo asserts that the Evaluators' comments on their Evaluation Criteria Sheets, as well as the consensus nature of the scoring, show that the Evaluators failed to follow the RFP requirements. Specifically, Zayo argues that the Evaluators incorrectly determined that Zayo's bid would result in a large overall increased cost to the School Board. Zayo argues that the Evaluators misunderstood both the proposal specifications, as well as how to appropriately apply the evaluation criteria to the proposals. As a result, the Evaluators improperly deducted points from Zayo's proposal. Consequently, the evaluation, scoring, and ranking were based on factual inaccuracies and were conducted unreasonably. To support its claim, Zayo points to the comment Mr. Lee wrote on his Evaluation Criteria Sheet that "Zayo would require additional equipment for the installation which would cause the district a large overall increase in cost." Zayo asserts that Mr. Mulcahy established that this statement is demonstrably not true. Instead, the information in Zayo's proposal made it clear that all equipment and infrastructure necessary to support its network solution would not require the School Board to purchase any additional equipment. Neither would it result in additional costs above Zayo's quoted price. As a result, Zayo argues that no rational basis exists for the Evaluators to have deducted Zayo's scores for the categories of Experience, Methodology, Scalability, and Overall Ability based on the assumption that the School Board would incur additional costs if it selected Zayo's proposed network. Consequently, the Evaluators' scores were arbitrarily or capriciously derived, which provided WANRack's proposal an unfair competitive advantage. School Board Position: The School Board asserts that the testimony shows that the Evaluators carefully and completely considered all the criteria enumerated in RFP Section 6.2 when formulating their scores. Thereafter, in the Evaluators' neutral and objective judgment, WANRack's proposed network design was superior to Zayo's design. Accordingly, the Evaluators concluded WANRack's proposal best served the interests of the School Board. Finding: The evidence supports the School Board's argument that the Evaluators' concerns regarding the possibility that Zayo's proposal would result in additional costs to the School Board was not arbitrarily or irrationally derived or gave WANRack an unfair advantage. At the final hearing, all three Evaluators credibly testified that they fairly and reasonably reviewed and considered each proposal. The Evaluators voiced logical and rational explanations as to how they analyzed, and then scored, each proposal. They further provided good faith and factually based reasons why they believed that WANRack offered the most cost-effective service and presented the most advantageous network solution for the School Board. (Furthermore, Mr. Mulcahy openly confirmed that Zayo's network design would cost the School Board an additional $6,000 to $12,000 in supporting equipment.) Finally, the Evaluators persuasively testified that they measured each vendor's proposal against the same criteria and held every proposal to the same scoring standard. Accordingly, Zayo's argument on this point is rejected. The Evaluators Erred Because WANRack's Proposal is not Demonstratively Better than Zayo's Proposal: Zayo asserted that WANRack's proposed network was not demonstrably better than its own proposal. Presented through the testimony of Mr. Mulcahy, Zayo contended that the Evaluators' scores for Zayo's proposal were "misguided." Mr. Mulcahy commented that the Evaluators did not appear sufficiently knowledgeable in WAN network designs to adequately grade and rank the different network designs. He did not believe that the Evaluators gave Zayo's proposal proper consideration. While Mr. Mulcahy conceded that he was not aware of any evidence that the Evaluators acted dishonestly, illegally, or unethically, he maintained that the scores they awarded to Zayo's proposal were simply "wrong." Zayo presented examples of error based on Mr. Mulcahy's testimony: Methodology: Zayo asserts that the evidence does not support the Evaluator's collective characterization of WANRack's Methodology as Excellent, while labelling Zayo's proposal Very Good. Zayo claims that its Methodology is superior to WANRack's network design because, in Mr. Mulcahy's opinion, buried fiber cables are substantially more resilient to storms. In addition, the fact that Zayo presented the lowest bid "maximizes the cost-effectiveness" of its proposal. Consequently, the Evaluators' scores to the contrary are flawed. Scalability: Similar to Methodology, Zayo asserts that the fact that each Evaluator awarded WANRack an Excellent for Scalability while awarding Zayo a score of Very Good was unjustified. Zayo asserts that both its proposal and WANRack's proposal provided for maximum scalability without any additional costs to the School Board. Therefore, no justification existed to score Zayo's proposal lower than WANRack's proposal for an identical response to this criterion. School Board Position: The School Board highlighted that the RFP expressed no preference for a specific type of methodology. To the contrary, RFP Section 3.1 stated that the School Board would consider "traditional network designs (such as hub and spoke) or alternative proposals." Therefore, the fact that Zayo's underground cables might provide more protection from environmental hazards than aerial cables does not automatically mean that Zayo's proposal was "demonstrably" superior to WANRack's design. How the vendors proposed to construct their network cable "highway" was only one factor in the Evaluators' analysis of which proposal presented the best solution for the School Board. The School Board further contends that the evidence presented at the final hearing does not show that the Evaluators' conclusions regarding additional cost to the School Board were erroneous. Mr. Mulcahy plainly testified that the School Board would need to purchase additional equipment to support Zayo's network design. Finally, the School Board again asserts that the evidence establishes that the Evaluators neutrally and objectively determined that WANRack's proposed network design was superior to Zayo's design. The Evaluators' testimony at the final hearing shows that they considered all the criteria set forth in RFP Section 6.2 when formulating their scores. Thereafter, they individually concluded that WANRack's proposal best served the interests of the School Board. Finding: The School Board's position has merit. The evidence at the final hearing demonstrates that the Evaluators awarded points based on an honest exercise of their discretion. The Evaluators credibly testified that they fairly and in good faith considered the information presented in each proposal. During the final hearing, each Evaluator evinced a broad and comprehensive knowledge of the details of both Zayo and WANRack's proposed network designs, as well as the subject matter of the RFP. The Evaluators further provided logical and rational reasons why they believed that WANRack's proposal was superior to the other proposals, particularly Zayo's proposal. The evidence did not prove that the Evaluators' scores were based on unfair or irrational prejudice. Accordingly, Zayo's argument on this point is rejected. The Evaluators Failed to Exercise their Independent Judgment When Scoring the Proposals: Zayo charges that the Evaluators, when scoring the proposals, acted "in a concerted way" to reach a consensus score in favor of one particular proposal (WANRack's), instead of applying their independent judgment as required by the Evaluator's Guide. Consequently, the Evaluators acted arbitrarily or capriciously in awarding a winning score to WANRack. To support this allegation, Zayo points to the fact that the Evaluators' scores for the Zayo and WANRack proposals were identical in every evaluation criteria. Zayo was further troubled as to why Mr. Chiavuzzi's scoresheet was devoid of any written commentary or notes that would explain how or why he scored as he did. School Board Position: The School Board maintains that the Evaluators' testimony clearly established that they independently formulated their scores based on their individual assessment of the proposals. Further, while the Evaluator's Guide advised that the Evaluators "should record brief comments that lend insight as to why they awarded or failed to award points based on the established RFP evaluation criteria for a particular item," neither the Evaluator's Guide nor any other provision of the RFP mandated that the Evaluators must document their exact thoughts or analysis on their Evaluation Criteria Sheets. Finally, regarding "concerted" collaboration between the Evaluators, the Evaluator's Guide specifically advised: It's normal and acceptable for there to be debate, even passionate debate, within the evaluation committee about how well a proposal meets the established evaluation criteria. As an independent evaluator you may be swayed by the debate in making you judgment about how many points you wish to award, and that is okay. Therefore, the RFP scoring process explicitly contemplated a collaborative process amongst the Evaluators in formulating the points to award to each proposal, as long as the ultimate score was based on each Evaluators' independent assessment. Finding: The evidence and testimony at the final hearing supports the School Board's position. While the Evaluator's Guide stressed that the Evaluators should exercise their "independent judgment," the Evaluator's Guide also clearly indicated that the Evaluators could collectively develop their scores. The Evaluator's Guide prompted the Evaluators to ask questions to understand pertinent information, as well as engage in "passionate debate" regarding the merits of each proposal. Such was the case in this RFP. During their two public meetings, the Evaluators freely and openly discussed the details of the vendors' proposals. However, each Evaluator credibly testified that when the time came to score the proposals, they applied their honest and independent opinions to the information presented by each vendor, and awarded scores as appropriate. Accordingly, Zayo's argument on this point is rejected. WANRack's Proposal Creates the Appearance of Impropriety with One of the Evaluators: Zayo alleges that a relationship between one of the Evaluators and WANRack creates an appearance of impropriety in violation of the Evaluator's Guide. The Evaluator's Guide specifically directed that Evaluators: will not have contact with any of the proposers during the evaluation process except during interviews; and, conversely, [Evaluators] are not to be contracted by any of the proposers during or following the evaluation process prior to contract award. … It is always best to err on the side of avoiding even the appearance of impropriety in the evaluation process. Zayo points to WANRack's listing of Mr. Lee's name as a point of contact for one of its references in its proposal. School Board Position: The School Board argues that no evidence indicates that WANRack ever contacted or spoke to Mr. Lee regarding the WAN Services Contract. On the contrary, Mr. Lee provided credible testimony that he and WANRack never discussed the terms, conditions, or scoring of the proposals for this RFP. For her part, Ms. Whitaker was not alarmed at finding Mr. Lee's name listed as a project contact in WANRack's proposal. Ms. Whitaker did not believe that this single reference in WANRack's proposal caused a potential impropriety. She commented that nothing in WANRack's proposal indicated that Mr. Lee was anything more than a reference regarding another contract between WANRack and the School Board. Ms. Whitaker expressed that WANRack's proposal did not contain any information that Mr. Lee was involved in WANRack's current contract with the School Board in any direct or material capacity. On the contrary, the fact that WANRack disclosed its specific point of contact on the Bartow Contract showed that WANRack openly revealed its existing working relationship with the School Board. For his part, Mr. Lee steadfastly asserted that he never spoke to WANRack during the RFP process, and WANRack never attempted to exert any influence over him regarding his evaluation of the WAN Services Contact. Mr. Lee further maintained that he was unaware that WANRack listed his name as a reference, nor did he approve the same. Mr. Lee testified that he fairly and objectively evaluated every proposal, and he formulated his scores consistent with his understanding of the RFP specifications and based on the best interests of the School Board. Finding: The School Board (and Mr. Lee) presents the most effective argument on this point. At first blush, the fact that WANRack inserted Mr. Lee as its point of contact on a prior School Board project does raise questions as to the working relationship between Mr. Lee and WANRack. And, the School Board certainly desired to prevent any inappropriate communication or influence between the vendors and the Evaluators. However, the questions were all answered. There was no evidence of any inappropriate communication or influence. No evidence or testimony establishes that WANRack received any competitive advantage or favoritism based on Mr. Lee's previous dealings with WANRack on the Bartow Contract. Neither does any evidence demonstrate that WANRack was awarded the WAN Services Contract based on its prior relationship with Mr. Lee. Mr. Lee persuasively testified that the scores he gave to WANRack and Zayo were based solely on the information contained within the proposals, and not from any other source or from his prior interactions with WANRack. Accordingly, Zayo did not prove that the fact that WANRack listed Mr. Lee as a point of contact on another contract with the School Board actually gave WANRack's proposal an unfair competitive advantage or led to the School Board's selection of WANRack for the WAN Services Contract. Therefore, an insufficient basis in fact exists to overturn the School Board's intended award to WANRack on this issue. WANRack's Proposal is Nonresponsive in that it Violates the FCC's E-rate Program Rules: Zayo contends that WANRack's proposal is ineligible for award under the RFP because it included terms that violated E-rate funding rules. Therefore, awarding the WAN Services Contract to WANRack will jeopardize the School Board's ability to use federal funds to pay for the network services. Specifically, Zayo represents that, to be eligible for E-rate funding, the E-rate program requires all special construction charges for a network to be completed and the fiber "lit" (i.e., ready to provide service) within the same 12-month fiscal year as the funding request. Zayo contends that WANRack's proposal, however, includes a timeline that stretches beyond the required, 12-month E-rate funding year. To support this argument, Zayo points to an illustration within WANRack's proposal that portrays a construction timeline that starts on July 1, 2021, and ends on October 13, 2022. (Pet. Ex. 25, pg. 61) This graphic representation indicates that WANRack will need 15 months to completely construct its network before it is able to provide WAN services to the School Board. Zayo argues that because WANRack's proposal contemplates an upfront construction time of greater than one funding year, it violates the requirements of the E-rate program. Consequently, the School Board must reject WANRack's proposal as nonresponsive because WANRack's solution is ineligible for E-Rate support and cannot meet the RFP service requirements. School Board Position: Ms. Whitaker agreed with Zayo's point that the scoring of the vendors' Methodology included evaluating how the vendors' network solutions comply with the E-rate guidance. However, in responding to this specific assertion, the School Board and WANRack argue that the illustration included in WANRack's proposal is only an "example of a construction timeline." Mr. Oyler (as supported by the School Board) testified that WANRack fully intends to construct its network within E-rate time requirements and that its network design for the WAN Services Contract will qualify for E-rate funding. At the final hearing, Mr. Oyler insisted that the October 13, 2022, date on the sample timeline is merely a conservative point of reference. He urged that, at the time WANRack submitted its proposal, the exact date that E-rate would approve funding for the WAN Services Contract was unknown. Consequently, the dates WANRack included on its illustration are simply projections for planning purposes. Further, the School Board and WANRack witnesses represented that E-rate special construction rules allow construction of the fiber network to begin up to six months prior to the start of the funding year (July 1). In light of this provision, Mr. Oyler conveyed that WANRack fully intends to begin construction of its network several months prior to the start of the pertinent E-rate funding year. Finding: Based on the testimony adduced at the final hearing, the School Board (and WANRack) persuasively counter Zayo's argument that the School Board should have deemed WANRack's proposal nonresponsive based on the inclusion of a construction completion date of October 13, 2022. WANRack credibly explained how its proposed network design can be constructed to sufficiently qualify for E-rate funding. Accordingly, Zayo did not present sufficient evidence to prove that WANRack's proposal must be disqualified as noncompliant with E-rate rules or the RFP specifications. WANRack's Score for Methodology Must be Reduced Due to the Fact that WANRack Failed to Provide a NID Switch: Zayo asserts that WANRack's Methodology did not deserve the top award of Excellent (20 points) because WANRack's proposed network failed to incorporate a Network Interface Device ("NID") switch. To support this argument, Zayo points to several provisions in the RFP that indicate that the vendors' network designs must include a NID switch. These sections include RFP Addendum 2, Question 1, which describes the School Board's expectation that vendors will use an "endpoint NID (i.e. switch, router)" that is "scalable up to 100Gbps which will connect to the district/site routers." Mr. Mulcahy also highlighted the RFP's requirement that vendors must "provide prioritization of voice traffic dependent upon the District's Voice- over-IP ["VOIP"] specifications," which, according to him, would implicitly require a switch or router. See RFP Section 4.4. Mr. Mulcahy testified that without the proper switch, the lasers that transmit data over the network will not "light" the fiber optic cable. Zayo asserts that WANRack, however, indicated that it will use a GBIC/SFP (Gigabit Interface Converter/Small Form-factor Pluggable) module in its design, rather than a NID switch. (A GBIC/SFP device is a small fiber optic transceiver, about the size of a pack of gum, that interfaces with the network to convert optical and electrical signals.) Mr. Mulcahy asserted that WANRack's decision to use a GBIC/SFP module instead of a NID switch gives WANRack's proposal a competitive advantage because the NID switch component is an expense that either the vendor or the School Board will have to bear. School Board Position: Mr. Chiavuzzi, during his testimony, directly rejected Zayo's argument that the RFP mandated all proposed networks include a NID switch. On the contrary, Mr. Chiavuzzi declared that the School Board intentionally did not require the vendors to meet a specific routing configuration in their proposals. Instead, the School Board gave vendors the flexibility to offer a broad range of network solutions to meet the School Board's needs, whether those designs included a NID switch or not. See RFP Section 3.1. Similarly, Mr. Hodnett saw no reason to reduce his score for WANRack's Methodology due to the fact that it did not provide a NID switch. Mr. Hodnett further represented that he could perform any necessary VOIP prioritization himself without the assistance of the network provider. WANRack (through Mr. Oyler) confirmed that WANRack's proposed network design does not include a NID switch. However, Mr. Oyler asserted that the corresponding equipment WANRack intends to use (GBIC/SFP devices) is scalable up to 100Gbps, and, therefore, will adequately support the network services the RFP specifies, as well as any VOIP requirements. Finding: The evidence and testimony adduced at the final hearing does not support Zayo's argument that WANRack was required to present a network solution that included a NID switch. Therefore, Zayo did not meet its burden of proving that the Evaluators acted arbitrarily or irrationally by awarding WANRack's proposal an Excellent score for Methodology, or that WANRack received an unfair competitive advantage or benefit. The Notice of Recommended Bid Award is Void and Cannot Be Enforced: Zayo asserts that the Notice of Award is void and cannot serve as the basis for an award to WANRack. Specifically, Zayo argues that the Notice of Award recommended that the WAN Services Contract be awarded to the wrong corporate entity. To support this argument, Zayo denotes that "WANRack, LLC" submitted the proposal in response to the RFP. The Notice of Award, however, recommended the School Board award the bid to "WANRack Holdings, LLC." Zayo charges that the discrepancy in the name of the intended contract winner on the Notice of Award invalidates the award to WANRack, LLC. School Board Position: Initially, the School Board asserts that Ms. Whitaker's reference to "WANRack Holdings, LLC" instead of "WANRack, LLC" was a simple scrivener's error that did not affect the integrity or propriety of the procurement process. During her testimony, Ms. Whitaker explained that she fully intended to write WANRack's appropriate corporate name on the Notice of Award. She represented that insertion of the word "Holdings" after WANRack's name was her mistake. She offered that she was not aware of the legal significance between the two companies. Ms. Whitaker urged that none of the Evaluators or School Board staff was confused over which entity was being recommended for the WAN Services Contract – WANRack was clearly the top ranked vendor. The School Board also introduced a Memorandum from the School Board Superintendent, Jacqueline Byrd, dated February 8, 2021, which recorded that the contract "for procurement of Fiber WAN Services to 65 sites in the Lakeland area" was awarded to "WANRack, LLC." In addition, the School Board argues that, at most, Ms. Whitaker's inclusion of the extraneous word "Holdings" was a harmless error that should not affect the outcome of the award. To support this argument, the School Board points to RFP Section 7.21, which states that, "The District reserves the right to waive irregularities in the proposals." The School Board insists that Ms. Whitaker's mistake should be treated as a waivable irregularity. The School Board further asserts that the terms of the WAN Services Contract will be governed by the RFP together with all requirements, attachments, worksheets, addenda, as well as WANRack's proposal. The School Board contends that these documents clearly establish that the vendor selected for this project is "WANRack, LLC."11 The School Board maintains that no vendor (including Zayo) was prejudicially affected by the incorrect reference to "WANRack Holdings, LLC" on the Notice of Award. For his part, Mr. Oyler offered that WANRack Holdings, Inc., is the holding company for WANRack, LLC. Mr. Oyler, who serves as Chief Executive Officer of both corporations, explained that WANRack, LLC, submitted the proposal in response to the RFP, and WANRack, LLC, will be the company that enters the WAN Services Contract to provide the leased "lit" fiber services to the School Board. Finding: The School Board persuasively rebuts Zayo's argument that the School Board's incorrect recommendation to award the WAN Services Contract to "WANRack Holdings, LLC" should invalidate the results of this procurement. Ms. Whitaker's mistake on the Notice of Award was not material to the award of the WAN Services Contract to WANRack. Neither did the error provide WANRack a competitive advantage or benefit under the terms of the RFP. To summarize the findings in this matter, based on the evidence in the record, Zayo did not demonstrate, by a preponderance of the evidence, that the School Board's intended award of the WAN Services Contract to WANRack was clearly erroneous, contrary to competition, arbitrary, or capricious, or that it was contrary to the School Board's governing statutes, policies, rules, or the solicitation specifications. Each Evaluator credibly 11 For example, Ms. Whitaker's letter to WANRack, dated March 10, 2021, states: The School Board of Polk County, Florida, in regular session, on Tuesday, February 23, 2021 approved RFP 031-MDW-1121 Fiber WAN Lakeland E-rate recommended bid award to WANRack, LLC. In addition, Ms. Whitaker's "memo to file" letter, also dated March 10, 2021, states: The School Board of Polk County, Florida (PCSB) and WANRack, LLC agree the contract between the parties consists of the RFP (including addenda), and the successful proposal. testified that they fairly and objectively evaluated the information contained in WANRack's and Zayo's proposals. Further, the evidence demonstrates that WANRack's proposal complied with the RFP specifications, and WANRack is fully capable of providing the "lit" fiber services the School Board seeks through the WAN Services Contract. Finally, the evidence does not show, by a preponderance of the evidence, that Zayo was placed at a competitive disadvantage in this solicitation. Neither is there evidence that the School Board conducted this procurement in a manner that was contrary to its governing statutes, rules, or policies, or the provisions of the RFP. Accordingly, Zayo failed to meet its burden of proving that the School Board's intent to award this procurement to WANRack must be rejected.
Conclusions For Petitioner: Robert A. Shimberg, Esquire Trae S. Weingardt, Esquire Hill, Ward and Henderson, P.A., 101 East Kennedy Boulevard, Suite 3700 Tampa, Florida 33601 1 Unless otherwise stated, all citations to the Florida Statutes are to the 2021 version. For Respondent: Jonathan Stidham, Esquire Jeffrey Sullivan, Esquire Stidham & Stidham Post Office Box 510 Bartow, Florida 33831 Warren Andrew Crawford, Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Box 30 Bartow, Florida 33830 For Intervenors: Stephen R. Senn, Esquire Matthew J. Vaughn, Esquire Peterson & Myers, P.A. 225 East Lemon Street, Suite 300 Lakeland, Florida 33802
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Polk County enter a final order dismissing the protest of Zayo. It is further recommended that the School Board of Polk County award Request for Proposal 031-MDW-1121, Fiber WAN Lakeland E-rate to WANRack as set forth in the Notice of Award. DONE AND ENTERED this 17th day of September, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S J. BRUCE CULPEPPER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2021. Charles Wesley Bridges, General Counsel The School Board of Polk County, Florida Post Office Box 391 Bartow, Florida 33831 Trae S. Weingardt, Esquire Hill Ward Henderson 101 East Kennedy Boulevard Suite 3700 Tampa, Florida 33602 Robert A. Shimberg, Esquire Hill, Ward & Henderson, P.A. 101 East Kennedy Boulevard Tampa, Florida 33602 Warren Andrew Crawford, Esquire Boswell and Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33830 Jeffrey Sullivan, Esquire Stidham & Stidham Post Office Box 510 Bartow, Florida 33831 Stephen R. Senn, Esquire Peterson & Myers, P.A. Suite 300 225 East Lemon Street Lakeland, Florida 33802 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Jillian T. Spangler, Esquire Boswell & Dunlap, LLP 245 South Central Avenue Bartow, Florida 33830 Frederick Heid, Superintendent Polk County School Board 1915 South Floral Avenue Post Office Box 391 Bartow, Florida 33831
The Issue The issue is whether Petitioner has just cause to suspend Respondent from her employment as a teacher for three days without pay.
Findings Of Fact Petitioner, the School Board of Manatee County, Florida, ("Petitioner" or "School Board") is responsible for providing public education in Manatee County, Florida. Melissa Graves has been employed with the School District of Manatee County ("District") since August 8, 2000. During the 2008-2009 school year, Ms. Graves was a kindergarten teacher at Gullett Elementary School ("Gullett"). The last day for students that year was June 4, 2009, and the last day for teachers was June 5, 2009. Katherine Hayes was the principal at Gullett. At the end of the school year, Ms. Hayes required all teachers to complete an "End of Year Checklist" ("checklist") and a "Room Prep Check List for Summer Cleaning" ("room prep list"). On May 27, 2009, Ms. Hayes emailed the checklist to all teachers. The list includes such tasks as: taking textbook inventories, returning media center materials, completing end of year report cards, making a final check of cumulative folders, stripping hallway bulletin boards, and completing a room prep list. The checklist was to have been checked off by the responsible person, for example, Ms. Hayes when she received the report cards, and the head custodian when tasks on the room prep list were completed. The deadline was June 5, 2009. On June 1, 2009, Ms. Hayes sent a second email to all teachers with the room prep list attached to give specific instructions on how to prepare classrooms for summer cleaning. In May 2009, Ms. Hayes informed Ms. Graves that she was being reassigned from kindergarten to second grade. Ms. Graves was unhappy about the reassignment and, near the end of the month, the teacher's union filed four grievances against Ms. Hayes on behalf of Ms. Graves. The grievances were dismissed by the Superintendent. Ms. Graves' allegation that her reassignment was in retaliation for the filing of the grievances is not supported by the testimony regarding the dates of the two events. On June 3, 2009, Ms. Hayes sent an email to teachers confirming that thirteen teachers, including Ms. Graves, would be assigned to new grades and, therefore, moving to different classrooms for the 2009-2010 school year. She requested that they coordinate their efforts with teachers who were moving in/out, and told them to contact the head custodian to schedule assistance. On June 5, 2009, Ms. Hayes sent another reminder for teachers to complete the checklist and return it to her before leaving that day for the summer. At the end of the day on June 5, 2009, Ms. Graves and one other teacher, Kim McAfee, who had additional duties checking off teachers' technology checklists, had not completed their own checklists and room prep lists. Both teachers were to return and complete the tasks on January 8, 2009. Ms. McAfee did, but Ms. Graves did not. Ms. Graves testified that, rather than prepare her room on June 5, 2009, she chose to work with Ms. McAfee on an I-Movie project, an end of the year gift she gave to her students' parents that apparently had some defects in the sound. She was also transferring files from one laptop to another. Ms. Graves' technology projects took longer than expected because Ms. McAfee, who was assisting her, was being interrupted by teachers who needed her to verify that they had completed the technology portions of their checklist. Ms. Graves noted that, in an email on May 20, 2009, Ms. Hayes instructed teachers not to "dismantle" their classrooms to avoid disrupting students, but to begin separating personal items from school materials, so that they could take their personal items home. Ms. Graves never "dismantled" her room before the last day; nevertheless, Ms. Graves knew that she did not need to wait until the last day to begin the task. She had been able to prepare her room for the summer in one day for the previous nine years. Ms. Graves also testified that three teacher's aides who came to assist her on the morning of June 5th made a bigger mess and mixed her personal items with school property while she was out of the room. She gave the aides essentially no instructions except to take everything off the walls and pack them. She then returned to her project in Ms. McAfee's room. On June 8, 2009, Ms. Graves, who was teaching summer school classes at another elementary school, assured Ms. Hayes that she would get the room prep task done during the three weeks of summer school by returning each day after summer classes ended, at 1:15 p.m., and working until Gullett closed at 3:15 p.m. Ms. Graves came some but not every day during the three weeks. Ms. Hayes returned from a vacation on June 16 or 17, 2009, and the head custodian informed her that all classrooms were prepared for summer cleaning except Ms. Graves'. Ms. Graves blamed her failure to complete the tasks on rainy weather, her parents' having turned in their rented truck, and car troubles. On July 30, 2009, Ms. Hayes sent Ms. Graves a letter telling her that the classroom had to be prepared for summer cleaning no later than August 6, 2009. Ms. Graves testified that she did not receive the letter until August 5, 2009, and that day she sent Ms. Hayes an email stating that she had just received the letter, but was unable to comply with the deadline because she would be out-of-town until the following week. On August 11, 2009, Ms. Hayes and two custodians packed and cleared Ms. Graves' classroom, and placed her personal items in storage in an empty classroom. They also cleared various items, including toys and books from desks, tables, and the floor, and emptied shelves and unplugged electronic devices. On August 19, 2009, Ms. Hayes sent Ms. Graves a letter instructing her to remove her personal items from storage by the end of the day on August 21, 2009, and she did.
The Issue This proceeding concerns the Respondent's rejection of all bids for construction of its new middle school "FF". Petitioner has challenged that intended action, arguing that it was arbitrary and capricious and contrary to the law. The parties disagree as to the basis for the intended action. Initially the School Board considered rejecting all bids for failure to meet MBE/WBE goals, and Petitioner protested. Later, the Respondent determined that significant revisions to the construction documents were required, and the bids were all rejected on that basis. Petitioner protested again, but contends that the original basis for intended action is still at issue. For reasons set forth in the following recommended order, the MBE/WBE goal issue is moot. The central issue for determination, therefore, is whether Respondent properly rejected all bids based on its determination that substantial changes are required, and Petitioner's motion to consolidate its two protests is DENIED.
Findings Of Fact Petitioner, Mark C. Arnold Construction Co., (Arnold), is a commercial general contracting firm located in Orange County, Florida, but well-experienced in building public facilities throughout the state. Arnold currently is engaged in constructing school "EE" for Respondent, Orange County School Board (School Board, or Board). In January 1992, the school board promulgated an advertisement for bid soliciting bids for the construction of a new school project known as Middle School "FF". The advertisement for bid was published five (5) times in the Orlando Sentinel on January 7, 14 and 28 and on February 4 and 1, 1992. The board also compiled a project manual which among other things contained a copy of the advertisement for bid and instructions to bidders which governed the bidding process. The advertisement for bid reserved the school board's "right to reject any or all bids and to waive any informality or irregularity in any bid received". (Joint Exhibits 1 and 2) The instructions to bidders also reserved the school board's "right to reject any and all bids when such rejection is in the interest of the school board of Orange County, Florida...". (Joint Exhibit 5) The project manual also contained a bid form to be used by bidders. In it the bidder agrees "that the Owner reserves the right to reject this bid, or to waive informalities in any bid,...". Such language was contained in the bid submitted by Arnold. (Joint Exhibits 7 and 9) By addendum dated February 5, 1992 the school board amended and replaced Section A-12 of its project manual and instructions to bidders. Such amendment, among other things, established goals for minority/womens business enterprise (MBE/WBE) subcontractor and supplier participation in the project, and it required any bidder who failed to attain the goals to demonstrate a good faith effort to do so; otherwise, the bid of such bidder would be rejected. (Joint Exhibit 8) Arnold's bid showed that Arnold had no MBE/WBE subcontractor or supplier participation. (Joint Exhibit 9) Arnold's bid was the lowest of eleven bids received by the school board. Arnold's bid was in the amount of $10,977,000.00. The next lowest bid was in the amount of $11,075,000.00. After bids were opened, Arnold promptly contacted the MBE/WBE manager of the school board, and was advised by her to try to obtain MBE/WBE participation to meet the goals; within several days after bid opening Arnold was able to get a total of about 13.5% MBE/WBE subcontractor/supplier participation. Contrary to the MBE/WBE manager's instruction, the addendum to the project manual and bid instructions proscribed any effort after bid opening to attain the MBE/WBE goals and to thereby make a bid responsive. In spite of Arnold's attempt to demonstrate to the MBE/WBE manager that it had made a good faith effort to attain the goals prior to bid opening, the MBE/WBE Manager determined that no sufficient good faith effort was shown by Arnold. On March 5, 1992 the school board furnished to Arnold a written notice of its intended decision to reject all bids because of the failure of all contractors (bidders) to attain the MBE/WBE goals and/or to show compliance with the good faith effort requirement of the contract documents. (Joint Exhibit 11) On March 10, 1992 Arnold and its attorney attended a meeting of the school board for the purpose of appealing the MBE/WBE manager's decision that Arnold had not demonstrated a good faith effort to meet the goals. Mark C. Arnold spoke at length to the school board itemizing actions which Arnold contended showed its requisite good faith effort to solicit MBE/WBE participation. Arnold's attorney also made a presentation at the meeting. By a 6 to 1 vote, the board initially sustained the findings of the MBE/WBE manager that a good faith effort was not shown by Arnold, and rejected all bids because of the failure of all contractors (bidders) to meet the minority participation goal and/or to show compliance with the good faith effort requirements of the contract documents. (Joint Exhibits 12 and 15) Following a work session after its initial meeting on March 10, the board convened again in regular session on March 10, at which time it unanimously voted to reconsider its earlier action of rejecting all bids, and it voted to postpone action of the award of a contract for the construction of Middle School "FF". The effect of that action was to rescind its earlier action rejecting all bids and determining that Arnold had not shown a good faith effort to solicit MBE/WBE participation; and also to postpone action on the entire matter to a future time. (Joint Exhibit 13). On March 20, Arnold filed Formal Protest directed to the board's March 5th Notice of Intended Decision and directed to the March 10 action rejecting Arnold's bid. During or about the first week in April, engineers for the school board met with the school board's attorney, William M. Rowland, Jr., to inform him that significant revisions needed to be made in the site work and sewer plant plans for the Middle School "FF" project. The engineers recommended that because of the need to make such revisions all bids for the project should be rejected and the project should be rebid after the plans were revised. As a result of the early April meeting with the engineers, the board's attorney prepared and delivered a memorandum dated April 7th advising the school board of its engineers' recommendations. The attorney also submitted a resolution which, if adopted, would serve to reject all bids and require a rebidding of the project. (Joint Exhibit 16) On April 10th the school board furnished to Arnold an amended notice of intended decision, which by its express terms replaced, amended and superseded its prior notice of intended decision dated March 5th, and notified Arnold of its intent to reject all bids on the project because of the need to make significant revisions in the construction documents. (Joint Exhibit 17) Said amended notice rendered moot the March 20 formal protest filed by Arnold. At its meeting held on April 14th, the board considered the April 7th memorandum from its attorney. At that meeting, the board heard from its staff engineer, Chuck Greif, who pointed out the revisions needed to the site plans for the Project. (Joint Exhibit 20, pages 59-62, 77-78) Mark Arnold also spoke, contending that the site revisions could be handled by change orders if Arnold's bid were accepted. (Joint Exhibit 20, pages 76-77) Bob Gallardo, the school board Director of Facilities and Planning, advised of problems encountered in the site work and of the need to make significant revisions in the site plans. (Joint Exhibit 20, pages 87-92) As the geotechnical engineer on the job, Charles Cunningham stressed the significance of the site plan changes. (Joint Exhibit 20, pages 96-97) Derek Burke, engineer on the project, confirmed that major redesign needs to be done. (Joint Exhibit 20, page 64) Attorney Rowland advised that the prior intended decision to reject all bids because of failure of all bidders to comply with the MBE/WBE requirements of the bid documents, was moot and no longer before the board for action, and that the only resolution before the board for action was the resolution to reject all bids because of the need to make significant site plan revisions for the project. (Joint Exhibit 20, pages 72-76) The school board unanimously adopted that resolution. (Joint Exhibit 20, pages 97-99; Joint Exhibit 18) On April 23rd Arnold timely filed the written formal protest which is the subject of these proceedings. At the time of the meeting held by on April 14th, there was a need to make significant changes in the site work and sewer plant for the Middle School "FF" project. Such changes formed a valid and legitimate reason for the board to reject all bids. Even at the time of this administrative hearing, some details regarding the site work still needed to be worked out. For example, an outfall is needed for the percolation pond underdrain but it was not included in the project design. The site work and sewer plant changes and revisions could have been handled by change orders between Arnold and the school board, had the board accepted Arnold's bid, since any changes in a project can be accomplished by change orders; however, revising the nature and quantity of construction work by change orders involves the potential for excessive cost to the project owner and change orders always require agreement between the parties. Prudence dictates that when it is known that changes must be made, the bid advertisement should include those changes up front to remove the uncertainty of costs and to put all bidders on equal footing. There has been no showing of any illegality, fraud, oppression or misconduct in the actions of the school board in rejecting all bids on the Middle School "FF" Project and in opting to seek new bids for the project. There has been no showing in these proceedings that the school board's rejection of all bids had the purpose or effect of defeating the object and integrity of competitive bidding.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered dismissing the bid protests by Petitioner. DONE AND RECOMMENDED this 10th day of July, 1992, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Charles Evans Davis, Esquire 170 East Washington Street Orlando, FL 32801 MARY CLARK 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 10th day of July, 1992. William M. Rowland, Jr., Esquire 1786 North Mills Avenue Orlando, FL 32803 Dr. James L. Schott, Superintendent Orange County School Board P.O. Box 271 Orlando, FL 32802
Findings Of Fact On March 25, 1992, the School Board of Collier County ("School Board") issued an invitation to bid ("ITB") on the construction of an elementary school in Naples, Florida, identified as Elementary School "D", Bid #84-3/92. Pursuant to School Board Rule No. R-03/89, potential bidders for proposed projects with a construction cost in excess of $50,000 must be prequalified by the School Board. The prequalification procedure is designed to provide the School Board with a responsible successful bidder. The School Board considers prequalification applications at regularly scheduled board meetings. Contractors are required to submit applications at least two weeks prior to the board meeting at which the application receives consideration. By application dated April 13, 1992, and filed April 14, 1992, G. H. Johnson Construction Company ("GHJ") applied to be prequalified by the School Board. The application contains the signed statement by Reza Yazdani, president of GHJ that all statements contained in the application are true and accurate. Question #19 in the prequalification application states "[w]hat are the three largest contracts (dollar amount) ever performed by your organization?" The April 13 application filed by GHJ indicates that the company's three largest contracts were University of Chicago Replacement Hospital ($7,353,000), V. A. Medical Center, Loma Linda, California ($3,810,000), and Cape Canaveral Hospital Phase I, II, & III (($6,000,000). In relevant part, section 6 of School Board Rule No. R-03/89 states: Unless specified exceptions are made by the Board, the contractor shall be qualified to bid or negotiate on projects of equal value and complexity to the largest project previously constructed by him. The Board may qualify contractors for projects the value of which does not exceed that of the largest project previously constructed if the experience record, size and qualifications of staff and other pertinent data regarding the contractor justify such action in the discretion of the Board. However, in no event shall a contractor that has not previously performed work for the Board be granted a Certificate of Qualification which exceeds the smaller of the contractor's largest previous project or 10 times the contractor's net quick assets. In the event use of the largest project to establish the pre-qualified amount for the Certificate of Qualification would preclude the contractor from bidding or negotiating because its work in progress exceeds the dollar amount of the largest project, the criterion of ten times the net quick assets may be used if it would yield a larger face amount for the Certificate of Qualification. (emphasis supplied) The copy of School Board Rule No. R-03/89 provided to GHJ prior to the School Board's consideration of the GHJ prequalification application omitted the portion underlined in the preceding excerpt. Although the result of the error was to garble the meaning of the particular sentence, the first sentence of the referenced excerpt provides that, absent specific exception by the School Board, "the contractor shall be qualified to bid or negotiate on projects of equal value and complexity to the largest project previously constructed by him." Clearly, the value of the largest completed project was of importance in determining a contractor's prequalification amount. There is no evidence that the typographical error caused GHJ to provide incorrect information in the April 13 prequalification application to the School Board. There is no evidence that any GHJ representative read the referenced section until two days before the bid submission deadline. On April 22, 1992, a mandatory prebid conference was held. A representative of GHJ was present at the conference. At the conference, School Board representatives stated that a contractor's bid cost could not exceed the bidder's prequalification amount minus the contractor's work in progress. Contractors were invited to inquire as to prequalification amounts. There is no evidence that the GHJ representative sought any information related to prequalification. The standard bid instructions provided to GHJ state that the School Board "will consider base bid and deduct alternates as may produce a net amount which is acceptable" to the Board. The instructions further state that bid documents include any addenda issued prior to the bid submission deadline. On April 27, 1992, the School Board issued Addendum #2 to the ITB. Addendum #2 defines "alternate" as "an amount proposed by Bidders and stated on the Bid form that will be added to or deducted from Base Bid amount if the Owner (School Board) decides to accept a corresponding change in either scope of work or in products, materials, equipment, systems or installation methods described in Contract Documents." The addendum states "[b]asis for selection of Alternate shall not be limited to price". Addendum #2 instructs bidders to add "removal of exotics" as "Alternate No. 1" to the bid proposal. The alternate identifies the "exotics" as melaleuca trees to be removed from approximately 10.5 acres at the site of middle school "BB". The removal of the exotics is required by an Army Corps of Engineers permit issued to the School Board for middle school site work. The general bid instructions require that, not less than seven days prior to the bid deadline, bidder's must submit written requests for clarification of any error, ambiguity or inconsistency in the bid proposal. Prior to submission of their bid, GHJ representatives discussed whether the add alternate #1 would be considered by the School Board in making the bid award, and, relying solely on the initial bid instructions, determined for themselves that it would not. At no time did GHJ inquire of any School Board representative as to the effect of addendum #2 or the "add alternate #1" on the Board's bid consideration. Based on the information provided in GHJ's April 13 application, the School Board on May 7, 1992, prequalified GHJ for projects not in excess of $7,353,000. The figure is derived directly from GHJ's identification of the three largest jobs completed. The University of Chicago Replacement Hospital's cost of $7,353,000 is the largest of the three jobs cited in the GHJ application for prequalification. There is no evidence that the approved prequalification amount was calculated incorrectly or contrary to the School Board's rule. By "Certificate of Prequalification" and letter of May 8, 1992, the School Board notified GHJ of the prequalification amount of $7,353,000. GHJ had not received the letter prior the May 12, 1992 bid deadline. On or about May 10, 1992, two days prior to the bid opening, the president of GHJ contacted the School Board to ascertain the approved prequalification amount. The prequalification amount was orally provided to him. At no time prior to the bid opening did GHJ question, challenge or seek to amend the prequalification amount. On May 12, 1992, GHJ timely submitted a bid on the project, with a base bid of $7,146,000 and an alternate #1 bid of $50,850. GHJ's base bid was the lowest base bid submitted. The total GHJ bid, including alternate #1, was $7,196,850, the second lowest total bid submitted. The GHJ "Certificate of Current Capacity" submitted as part of the bid proposal identified GHJ's prequalification amount as $7,353,000, total uncompleted work in progress as $1,325,655, and a current capacity (prequalification amount less current uncompleted work) of $6,027,345. Otherwise stated, the GHJ bid of $7,196,850 exceeds the contractor's capacity by $1,169,505. School Board Rule No. R-03/89, Section 2(d), provides as follows: If the bid of any qualified contractor exceeds the difference between the amount stated on the contractor's Certificate of Qualification (as effective on the date of the bid opening) and the contractors work in progress, the bid shall be rejected by the School Board. GHJ asserts that the bid specifications provided only that the award would be made on the basis of the base bid plus "deduct alternates" (of which there were none). Even assuming that the School Board's addendum #2 failed to indicate that factors other than the base bid would be considered, GHJ's base bid of $7,146,000 exceeds GHJ's capacity by $1,118,655. Under the provisions of the rule, the School Board may properly reject the GHJ bid. On May 12, 1992, Carlson Harris General Contractors, Inc., ("CH") timely submitted a bid on the project, with a base bid of $7,163,513 and an alternate #1 bid of $27,115. The total of the CH bid was $7,190,628. The total CH bid was the lowest of the total bids received. The CH "Certificate of Current Capacity" (based on a prequalification amount of $11,201,000), identified total work in progress of $740,830 and a current capacity of $10,460,170. The standard instructions provided to bidders on the project state that the School Board has the "complete and unrestricted right...to reject any and all bids and to waive any informality or irregularity in any bid received." Among other items required by the bidder instructions, each bidder was required to submit a list, signed by the bidder, of subcontractors and major material suppliers. The Petitioner claims that, at the time of submission, and as late as two days after the bid opening, the CH subcontractor list was unsigned. A witness for the Respondent claims that, as of thirty minutes after the bid opening (when he viewed the CH proposal), the list was signed. The School Board official who actually opened and examined the bids did not testify. The testimony of Reza Yazdani is credited and establishes that, at the time of submission, CH's subcontractor list was unsigned. The Petitioner asserts that CH's submission of an unsigned subcontractor list is a material defect which requires that the bid be rejected. The evidence establishes that such is a minor irregularity which does not affect the total cost of the bid or the ability of the School Board to enforce the contract provisions against CH and accordingly may be waived. The instructions also require submission of a bid bond issued by a Florida-licensed surety with a Best's rating of "A" or better who has fulfilled any previous obligation to the School Board. The bond submitted by CH was issued by Employers Reinsurance Corporation and Reliance Insurance Company, and was signed by the surety agents, although not by the CH representatives. Employers had a Best rating of "A+13" and Reliance had a Best rating of "A-11". The Petitioner asserts that CH's submission of a bid bond signed by the surety and not by the contractor is a material defect which requires that the bid be rejected. The Petitioner further asserts that Reliance's Best rating of "A-11" fails to meet the requirement that the surety have a Best rating of "A" or better. The evidence fails to establish that the irregularities in the bid bond are material. Employers Reinsurance had a Best rating of "A+13". The bid bond sufficiently protects the ability of the School Board to enforce the bond against the surety should CH fail to perform under the contract. At hearing, GHJ asserted that the School Board had previously contracted with CH and favored CH based on prior performance. There is no evidence that the School Board has previously contracted with CH for any construction project. Subsequent to the bid opening, GHJ amended it's application for prequalification to indicate that the University of Chicago Replacement Hospital cost was $11,400,000. Although staff has recommended that GHJ's prequalification amount be amended, the School Board has not taken action on the request. There is no evidence that such amended prequalification amount would be or should be applied retroactively to the bid at issue in this case.
Recommendation Based on the foregoing, it is hereby recommended that the School Board of Collier County enter a Final Order DISMISSING the Petition filed by G. H. Johnson Construction Company, Inc. RECOMMENDED this 29th day of June, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3220BID The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: a. Rejected, irrelevant. Rejected, irrelevant. The prequalification application contains the sworn statement that all statements are true and correct. Absent any indication that the contractor is untruthful, there is no cause for the School Board to independently investigate the contractor's application. Rejected, not supported by the greater weight of credible evidence, which establishes that GHJ representative made no attempt to clarify the garbled language cited. Rejected, not supported by the greater weight of evidence which establishes that the GHJ prequalification amount was based clearly and solely on information supplied by GHJ. Rejected, irrelevant. The rule requires rejection of GHJ's bid. Rejected, not supported by the greater weight of credible and persuasive evidence which establishes that CH's total bid was the lowest of those received. Rejected, not supported by the greater weight of credible and persuasive evidence. Rejected, as argumentative, not finding of fact. Rejected, not supported by the greater weight of evidence which clearly establishes that GHJ was aware of the prequalification amount prior to bid deadline and that the prequalification amount was based on information supplied by GHJ. Rejected. The Petitioner's application for amendment of the prequalification amount is irrelevant to this case. The prequalification amount was based solely on information provided by Petitioner prior to the bid opening. The Petitioner did not seek to challenge the prequalification amount until after the bid opening. There is no evidence that a revised prequalification amount should be applied retroactively. Rejected, irrelevant. There is no evidence that the Board used the prequalification process to prevent GHJ from submitting a bid or to restrict competition. Rejected, argumentative, irrelevant. The prequalification amount was based on GHJ information. The instructions provided to GHJ clearly indicated that the contractor would be qualified to bid or negotiate on projects of equal value and complexity to the largest project previously constructed. Any mistake in providing information to the School Board was on the contractor's part. The alleged action or lack thereof by the Board related to GHJ's subsequent request to amend the prequalification amount is irrelevant. There is no evidence that the Board used the prequalification process to prevent GHJ from submitting a bid or to restrict competition. Accepted as to proposed award to CH General Contractors. Rejected as to allegation that one of CH's subcontractors has indicated an unwillingness to perform. There is no indication that CH has or will suggest an inability to perform obligations under the bid contract. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 10. Rejected, unnecessary and uncorroborated hearsay. Although the permit is referenced in Addendum #2, which indicates that a copy of the Corps permit is attached to the addendum), the addendum admitted into evidence does not contain the copy of the Corps permit. 4. Rejected, unnecessary. 25-26. Rejected, irrelevant. Rejected, irrelevant. The timeliness of the Petitioner's protest is not at issue. Rejected. Although correct, the Petitioner's action in seeking amendment of the prequalification amount is irrelevant to this case. The prequalification amount was based solely on information provided by Petitioner prior to the bid opening. The Petitioner did not seek to challenge the prequalification amount until after the bid opening. There is no evidence that a revised prequalification amount should be applied retroactively. COPIES FURNISHED: Thomas L. Richey Superintendent School Board of Collier County 3710 Estey Avenue Naples, FL 33942 Matias Blanco, Jr. Esq. 701 North Franklin Street Franklin Street Mall Tampa, FL 33602 James H. Siesky, Esq. Siesky & Lehman, P.A. 700 Eleventh Street South, Suite 203 Naples, FL 33940-6777
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.
