The Issue Whether petitioner suffered age discrimination for which Black & Veatch is answerable, when an employee of Black & Veatch objected to petitioner's becoming the safety engineer for M. A. Mortenson Company, the general contractor on a project for the Orlando Utilities Commission for which Black & Veatch was construction manager?
Findings Of Fact Since 1940, petitioner Jack Keels has been in the construction business, "95 percent of it would be . hydroelectric dams along the Columbia and Snake Rivers." (T.13) He has worked as a laborer, carpenter, an iron worker, a craft superintendent, a shift superintendent, a general superintendent, a craft foreman, a shift foreman and a general foreman. Aside from a wealth of practical experience, he has taken "probably 200 or 250 hours of classes on safety and first aid." (T. 13, 14) He has "been acting safety director on five or six jobs" (T.14) and once was responsible for the safety of 300 men. When he began work for M.A. Mortenson Company (Mortenson), however, on the Curtis H. Stanton Energy Center job (Stanton) , a coal-fired plant Mortenson was building for the Orlando Utilities Commission (OUC), Mr. Keels was a crane Coordinator without "assigned responsibility for safety." (T.93) But Mr. Keels offered suggestions about how to improve safety and spoke to Mortenson's Bill King regularly on such topics as safety latches for the hooks, proper nets, electrical splices, man baskets that were not regulation, and the like. When a new crane arrived on the site, Mr. Keels asked the general superintendent where the blocks were to test the crane and was told there were none and they had not been testing the cranes. There were other "flagrant violations" of safety regulations including widespread disregard for the rules requiring workmen to wear hard hats and forbidding them to bring glass containers onto the construction site. Although another contractor at Stanton, Babcock & Willcox, seemed to be doing worse as far as safety, Mortenson's practices were below average in Mr. Keels' opinion. This was also the impression key personnel at Black & Veatch had of Mortenson's performance. As the owner's representative at Stanton, Black & Veatch had invoked OUC's right under "option BC. 4. 1. of the . . . contract," Respondent's Exhibit No. 6, to require Mortenson to appoint a full-time safety engineer, in May of 1984. Bill King was Mortenson's safety director or designated safety engineer, when Mr. Keels started. Bill King left the job in February of 1985, and Mortenson's Mr. Barbato suggested replacing him with petitioner Keels. Mortenson did not propose this formally in writing, but Mr. Barbato explained to Richard F. King, Black & Veatch's project loss control manager at Stanton, that the work had reached a point that Mr. Keels' services as crane coordinator were no longer needed and that naming him safety engineer would make it possible to keep him on. He never told anybody at Black & Veatch about Mr. Keels' considerable background in construction safety. Petitioner and Black & Veatch's Paul William Weida had twice differed with each other on issues of safety: Once Mr. Weida objected to work on a generator pedestal going forward without a handrail in place. At the time, carpenters working for Mortenson were installing concrete forms on top of the pedestal, some distance above ground. Mr. Keels pointed out that they were wearing safety belts, and argued that a handrail could constitute a hazard as they moved around bolting and nailing the forms. The other dispute about which both men testified had to do with a bent crane lattice. The lessor of the crane told petitioner there was no need to replace that section of the lattice, but a representative of the manufacturer told Mr. Weida replacement would be best. Over petitioner's strenuous objection, Mr. Weida insisted that the damaged lattice be replaced. These confrontations left Mr. Weida with the impression that petitioner would be difficult to work with and also made him skeptical about petitioner's commitment to safety, a skepticism to which petitioner vehemently and perhaps justifiably objects. Under the contract between OUC and Mortenson, Black & Veatch had the right, as OUC's representative, to veto any candidate for safety engineer. The agreement provided, "During the life of the contract, replacement personnel will also be subject to interview and approval by the Owner." Respondent's Exhibit No. 7. Mr. Weida objected to Mr. Keels, and Richard F. King backed him up. Neither Mr. Weida's nor Mr. Richard King's opposition to Mr. Keels' being named safety engineer was in any way related to Mr. Keels' age, which, incidentally, was not proven with any specificity. After receiving indications from Black & Veatch that Mr. Keels would not be an acceptable safety engineer at Stanton, Mortenson laid him off, in February of 1985. By November of 1985, Mortenson had finished its work at Stanton.
The Issue The issues in these cases are whether the allegations of the administrative complaints are correct, and, if so, what penalty, if any, should be imposed.
Findings Of Fact The Petitioner is charged with responsibility for regulation of the practice of engineering within the State of Florida. At all times material to these cases, the Respondent has been licensed by the State of Florida as a professional engineer holding license PE40904. At the hearing, the Petitioner presented the testimony of Joseph Berryman, P.E., a professional engineer licensed by the State of Florida. Mr. Berryman was accepted as an expert in structural engineering design, including aluminum structure design. Mr. Berryman's testimony regarding deficiencies in the Respondent's design of the projects referenced herein was clear and persuasive. In response, the Respondent testified that the referenced projects met applicable professional standards, including load and stress standards. The Respondent's primary engineering experience has apparently been in the realm of civil, not structural, engineering. According to Mr. Berryman, the Respondent's calculations included material errors, reflected structural elements other than those identified in the design documents, and revealed misunderstanding and misapplication of engineering precepts. The Respondent's testimony has been rejected. Mr. Berryman's testimony has been credited. DOAH Case No. 12-1635PL (Del Vecchio) On October 7, 2011, the Respondent signed, sealed, and dated a one-page structural engineering design document for construction of an aluminum screen swimming pool enclosure located at "3611 Throle" in Rockledge, Florida (the "Del Vecchio" project). The document failed to include elements and information required by the Florida Building Code (FBC) and by the Petitioner's rules. The document failed to identify the height of the mansard rise, failed to detail a proper end connection between diagonal roof bracing and the frame of the structure, failed to identify the size of the "K-bracing" elements included in the design, failed to indicate the size of the corner columns or to show a corner column section, and referenced a design element that had been superseded elsewhere in the document. Additionally, the frame spacing dimensions set forth on the document failed to conform to the width of the proposed structure. Because the material to be used in construction of the proposed structure was aluminum, the applicable design standard is set forth in Chapter 20 of the FBC and the Aluminum Design Manual (ADM). The standard requires that every element in the structure must be so proportioned as to resist the applied loading without exceeding the allowable stress for the construction material and without exceeding the allowable stress for each specific element of the structure's construction. Mr. Berryman reviewed the project proposed in the document for compliance with the standard set forth in the ADM and determined that the proposed structure (specifically the proposed roof beams, columns, and purlins) would not be sufficient to comply with applicable stress and load requirements. Mr. Berryman's analysis of the design proposed by the Respondent has been fully credited. The Respondent's preparation of the design document for the Del Vecchio project demonstrated a lack of due care in the practice of engineering and a lack of due regard for professional engineering standards. DOAH Case No. 12-1636PL (Nunez) On September 20, 2011, the Respondent signed, sealed, and dated a three-page structural engineering design document for construction of an aluminum screen swimming pool enclosure located at 4128 Southwest 102nd Lane Road, in Ocala, Florida (the "Nunez" project). The document failed to include elements and information required by the FBC and by the Petitioner's rules. The document failed to identify the height of the mansard rise and failed to detail a proper end connection between diagonal roof bracing and the frame of the structure. Because the material to be used in construction of the proposed structure was aluminum, the applicable design standard is set forth in Chapter 20 of the FBC and the ADM. The standard requires that every element in the structure must be so proportioned as to resist the applied loading without exceeding the allowable stress for the construction material and without exceeding the allowable stress for each specific element of the structure's construction. Mr. Berryman reviewed the project proposed in the document for compliance with the ADM and determined that the proposed structure (specifically the proposed roof beams, columns, purlins, cable bracing, anchor bolts, and gusset plates used in a roof beam splice) would not be sufficient to comply with applicable stress and load requirements. Mr. Berryman's analysis of the design proposed in the Respondent's document has been fully credited. The Respondent's preparation of the design document for the Nunez project demonstrated a lack of due care in the practice of engineering and a lack of due regard for professional engineering standards. DOAH Case No. 12-1637PL (Dunaway) On September 8, 2011, the Respondent signed, sealed, and dated a three-page structural engineering design document for construction of an aluminum screen swimming pool enclosure located at 8538 Southwest 135th Street, in Ocala, Florida (the "Dunaway" project). The document failed to include elements and information required by the FBC and by the Petitioner's rules. The document failed to identify the height of the gable rise, failed to detail a proper end connection between diagonal roof bracing and the frame of the structure, failed to indicate the size of the corner columns or to show a corner column section, and failed to identity the metal alloy of a clip used at a detailed shoulder connection. Because the material to be used in construction of the proposed structure was aluminum, the applicable design standard is set forth in Chapter 20 of the FBC and the ADM. The standard requires that every element in the structure must be so proportioned as to resist the applied loading without exceeding the allowable stress for the construction material and without exceeding the allowable stress for each specific element of the structure's construction. Mr. Berryman reviewed the project proposed by the Respondent's design document using the information set forth in the ADM and determined that the proposed structure (specifically the proposed roof beams, columns, and shoulder connection fasteners) would not be sufficient to comply with applicable stress and load requirements. Mr. Berryman's analysis of the design proposed in the Respondent's document has been fully credited. The Respondent's preparation of the design document for the Dunaway project demonstrated a lack of due care in the practice of engineering and a lack of due regard for professional engineering standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Professional Engineers enter a final order reprimanding the Respondent, placing the Respondent on probation for a period of two years under terms and conditions deemed appropriate by the Petitioner, and imposing a fine of $6,000 against the Respondent. Additionally, the final order should prohibit the Respondent from the practice of structural engineering until the Respondent submits to the Petitioner proof of his successful completion of an appropriate examination to be designated by the Petitioner. DONE AND ENTERED this 29th day of August, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 29th day of August, 2012. COPIES FURNISHED: John Jefferson Rimes, III, Esquire Florida Engineers Management Corp. 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303 Scott Guy Campbell Apartment 805 250 58th Street, North St. Petersburg, Florida 33710 Zana Raybon, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303-5268 Michael Flury, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this hearing is whether Respondent's license as a professional engineer in Florida should be disciplined because of the matters alleged in the Administrative complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Board of Professional Engineers was the state agency responsible for the licensing of professional engineers in this state. Respondent, James B. Whittum, was licensed as a professional engineer by the Board under License No. PE 0027689, dated March 9, 1979. He is a consulting engineer dealing primarily in aluminum structures - mostly pool enclosures. Starting in 1990, Respondent did a number of designs, some thirty to fifty a year, for Paglino Aluminum, an aluminum contractor located in Tampa, which might also have had offices in Miami. The company is now out of business. Sometime in 1992 Respondent approved plans for Paglino for a residence for Mr. and Mrs. Marrero. These drawings were for an aluminum enclosure. He did not personally make the drawing which had been done by Mrs. Paglino. He did not know where the Marrero residence was but claims that at no time did he do or approve any drawings which he believed would be utilized for construction in Miami. In order to save clients money, Respondent had established a practice with Paglino and with a number of other clients by which he would train them in how to design and draw the pool cages. Respondent would provide the clients with a design booklet and instruction on how to use it. The client would bring drawings to the Respondent who would check them over to make sure that everything was done according to the design basis. A copy of the design guide was furnished to Paglino. Once Respondent received the drawings from the client, he would go through the whole design procedure himself to be sure that the drawings conformed to the code. In order to place his signature and seal on drawings, he had to have an identification of the site (either the name of the owner or the address of the site), the dimensions of the slab on which the structure is to be built, and the orientation of the structure with reference to the existing building to which it was to be attached. With regard to the specific plans in issue, Mr. Whittum did not know the structure was to be built in Dade County. The plans he saw bore the Marreros' name but not their address. He never spoke to the Marreros except for one call from Mrs. Marrerro, after the structure was built, complaining about it. Before signing the plans, Respondent checked in the Tampa phone book for listings for Marrero and found twenty-five or thirty listings for that name. He assumed the Marreros for which these plans were drafted were one of those families listed. It is not Respondent's practice to know the street address for every design he signs and seals. He inquired of several other engineers designing aluminum structures to see if they did the same as he proposed before signing and sealing these plans. He found that they have either the name of the owner or the street address, but not necessarily both. Included in those with whom Respondent spoke concerning this issue were engineers in Sarasota and Cape Coral. This testimony by Mr. Whittum as to the practice of other engineers is hearsay, however. Most counties in Florida, except Pinellas County, do not allow the use of standard plans as submittals for the purpose of permitting. However, an engineering firm has drawn a set of master drawings for the design of aluminum structures. These drawings were done for the Pinellas Chapter of the Aluminum Association of Florida, and each aluminum contractor in that county files them with the Pinellas Building Department. Thereafter, when plans are submitted, the Department official examines the plans with reference to the standard and decides whether or not to issue the permit. If the plans submitted by the contractor conform to the master design no engineer's signature or seal is required. This procedure has no bearing on any other county in Florida, however, and Respondent does not contend he believed at the time that the plans he signed would be used for construction in Pinellas County. It was not Respondent's practice to require a street address for the plans he signed and sealed for Paglino Aluminum. It was his understanding, however, that the instant structure was to be built in Hillsborough County because all the other jobs he had done for that company were, without exception, built in Hillsborough County. At no time did Paglino ever seek Respondent's permission to transfer these drawings to Dade County. By the same token, nobody asked him if the design he drew would be appropriate for Dade County. Had they done so, he would have told them the drawings were not suitable to meet the South Florida Building Code where the structural design standards are, in many ways, more stringent than in the Standard Building Code. As a result of this incident, Respondent has changed the procedure he follows. He now requires the drawings include a statement of who purchased the plans and who the proposed permitting authority is. This is not required by rule but is a precaution he takes. In his opinion, the drawings in issue were site specific. They showed the dimensions of the slab the structure was to be built on which determines the design for the size of the beams and their spacing. They also showed the orientation to the house where the structure would be connected. This was, he contends, all he needed to know to do the calculations for construction under the Standard Building Code. These calculations generally do not vary from county to county, with the exception of Dade and Broward County, where the South Florida Building Code is used. The plans Respondent signed and sealed did not indicate where the structure was to be built at the time he signed and sealed them. The plans called for a structure that could be put up anywhere in the state, except for Dade and Broward Counties. The fact remains, however, that at the time he signed and sealed these plans, Respondent did not know where the structure was to be built. His supposition that it would be built in Hillsborough County, while perhaps reasonable for a lay person, was not reasonable for a licensed professional engineer. According to James O. Power, a consulting structural engineer and expert in the practice of engineering, a structural engineer, in signing and sealing plans, accepts responsibility for the integrity of the design, certifies that the plans are good for their intended purpose, and asserts that the structure will be safe. A sealed plan may be necessary, depending on the building code and enforcement agency. The code leaves it up to the building official to require what he feels is necessary. Depending on the agency, permits may be issued on the basis of non-sealed plans. The seal carries with it the added imprimatur of the engineer's expertise. Properly sealed plans should: (1) identify the project; (2) identify the drafter; (3) identify the Code used; and (4) indicate limitations on responsibility the engineer has taken. Aluminum screen enclosures are generally similar and simple. Standard drawings can be developed for them. However, the standard plan, by itself, will not support a permit. To support the issuance of a permit, the plan must be site specific. This is a universal concept. For that purpose, additional drawings must be accomplished which consider and treat the specifics of that project. Frequently, plans are issued with a statement by the engineer limiting the degree of his or her responsibility, such as "only treating one issue" or "plans are standard and not site specific." No such limiting language was placed on the drawing in issue except, "This design is specific to this job. It is not valid if filed as a standard." In July, 1994, Mr. Power was contacted by the Department to evaluate the allegations against the Respondent in this case. In doing so, he reviewed the investigative report, portions of the transcript of the meeting of the Probable Cause Panel, the drawings in issue, and affidavits by Respondent and by the Dade County building official, but did not speak with any of them. Respondent's plans in issue bear the notation that the design is "job specific" and not valid if filed as a standard. This means that the plan should identify the job for which the plans were drawn and bear details pertinent to it. Here, the Respondent's plans refer to the "Marrero" job, and who the contractor was. In Power's opinion, this is not complete and it is not enough for the engineer to say he had the specifics in his mind. The plans must be complete and stand by themselves. Mr. Power admits he has not designed any pool enclosures. He also did not inquire whether Respondent had an office in Dade County or what the permit requirements of counties in the state are. However, in his opinion, it is universal that standard plans do not support the issuance of a permit. Respondent's design includes connection details, slab details and wind load requirements. However, the name of the owner, alone, is not site specific information. While the exact street location is not required, an identification of the area in which the project is to be built, at the very least by county, is. Respondent's expert, Mr. Sterling, is less critical of Mr. Whittum's performance. In his opinion, it is not common within the profession for signed and sealed drawings to have an address or a name or contractor's name on them. Having reviewed Respondent's drawings, Mr. Sterling does not see anything else he would need to know to properly design the structure. He does not agree with Mr. Power with respect to having the address on each and every drawing. To him, what is important in looking at the drawing from a structural point of view are the design criteria that were applied to that particular structure. To his knowledge there is no professional requirement, statute or regulation that would oblige one to provide additional information. He admits, however, that there may be different practices or rules being applied in Dade and Broward Counties with respect to structure of this type. By Final Order dated April 3, 1992, the Board disciplined Respondent's license for negligence in the practice of engineering by signing and sealing plans for an aluminum screened pool enclosure which the Hillsborough County Building Department found failed to meet acceptable engineering standards. The penalty imposed included an administrative fine of $500, a reprimand, and probation for one year under conditions designed to insure technical and professional enhancement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued finding Respondent guilty of negligence in the practice of engineering; imposing a fine of $1,000.00 and revoking his license, but that so much of the penalty as provides for revocation be suspended for a period of two years. RECOMMENDED this 31st day of May, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 31st day of May, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. Accepted and incorporated herein. 2 - 11. Accepted and incorporated herein. 12. Accepted and incorporated herein. 13. - 15. Accepted and incorporated herein. 16. Accepted, but primarily a restatement of testimony. 17. - 22. Accepted, but these are primarily restatements of witness testimony. FOR THE RESPONDENT: - 4. Not Findings of Fact but statements of procedure followed. Unknown. - 9. Not Findings of Fact but comments of the evidence. Accepted and incorporated herein. - 13. Accepted. 14. - 17. Accepted and incorporated herein. - 21. Accepted and incorporated herein. Rejected as surmise of witness, not knowledge. - 25. Accepted. - 28. Accepted. Not a Finding of Fact but a restatement of the issue. & 31. Not Findings of Fact but restatements of testimony. Not a Finding of Fact but a comment on the evidence. - 37. Accepted. Not a Finding of Fact but a restatement of the evidence. & 40. Not Findings of Fact but restatements of testimony. - 44. Accepted. Not a Finding of Fact but a restatement of testimony. More a comment by one witness on the testimony of another witness. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Mary Ellen Clark, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles S. Stephens, Esquire 1177 Park Avenue, Suite 5 Orange Park, Florida 32073 Lynda Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the challenged portions of Rule 14-22.012, Florida Administrative Code, constitute an invalid exercise of delegated legislative authority as defined by Section 120.52(8), Florida Statutes.
Findings Of Fact The Parties The Respondent The Department is the state agency charged with the responsibility of building and maintaining the state’s transportation system. Each year the Department lets out hundreds of road and bridge construction projects totaling over one billion dollars. The projects range from sidewalk improvements to major bridge construction. Accordingly, there is a wide range of expertise and qualifications necessary for the different kinds of projects let by the Department in Florida. Section 337.14(1), Florida Statutes, requires any person desiring to bid on any Department construction contract in excess of $250,000 to first be certified by the Department as qualified to perform the work to be let. Pursuant to Section 337.164, Florida Statutes, the Department qualifies contractors to preserve the integrity of the public contracting process, to ensure an open and competitive environment for the benefit of the taxpayers, and to ensure a quality project in terms of public works. Pursuant to Section 337.14, Florida Statutes, persons seeking to bid on contracts in excess of $250,000 must first file an application for a Certificate of Qualification with the Department. The statute specifically authorizes the Department to enact rules addressing the qualification of persons to bid on contracts in excess of $250,000, including requirements with respect to competency, responsibility, equipment, past record, experience, financial resources, and organizational personnel of the applicant. Gregory Xanders is the State Construction Engineer. His duties include setting policy and reviewing contractor responsibility and qualifications under Chapter 337, Florida Statutes, and Chapter 14-22, Florida Administrative Code. In conjunction with reviewing a contractor’s qualifications, the State Construction Engineer’s Office receives input from other personnel, including contract managers in the field, the Department General Counsel’s Office, the Department Inspector General’s Office, and other cities and counties who may work with the contractor. The State Construction Engineer’s Office also reviews any intended decision to deny, suspend, or revoke a contractor’s Certificate of Qualification with the Assistant Secretary of the Department. When the State Construction Engineer’s Office makes a preliminary determination that a contractor’s Certificate of Qualification should be suspended, revoked, or denied, the contractor is notified and informed of its rights to an administrative hearing to contest the intended decision under Section 120.569, Florida Statutes. The Petitioner MBI is a company which engages in road building and asphalt paving. Since the early 1980s MBI has been qualified to bid on and awarded several Department projects. Approximately 80 percent of MBI's workload involves Department projects. Pursuant to Department rules, MBI annually submits an application to renew or obtain an updated Certificate of Qualification in order to continue bidding and performing Department projects. In 1997, MBI was denied qualification to bid on Department projects for approximately ten months. However, MBI was subsequently qualified by the Department during calendar year 1999. On or about March 31, 2000, MBI filed an Application for Qualification with the Department. By letter dated May 18, 2000, the Department gave MBI notice of its intent to deny MBI’s Application for Qualification, and stated that any subsequent application would not be considered for a period of two years. The Department’s letter advised MBI that the denial of the application constituted "a determination of non-responsibility to bid on any other construction or maintenance contract" for the same period. Specifically, the letter provided: Please be advised that pursuant to Chapter 337, Florida Statutes, and Rule Chapter 14- 22, Florida Administrative Code, it is the intent of the Department of Transportation (hereinafter Department) to deny Mitchell Brothers, Inc.’s (hereinafter Mitchell Brothers) Application for Qualification dated March 31, 2000. This denial shall preclude consideration of any subsequently submitted Application for Qualification for a period of two (2) years. Additionally, this denial shall constitute a determination of non- responsibility to bid on any other construction or maintenance contract and shall prohibit Mitchell Brothers from acting as a material supplier, contractor, or consultant on any Department contract during the period Mitchell Brothers is not qualified by the Department. The Department’s Notice of Intent denied MBI’s Application based upon a determination that MBI had demonstrated "a pattern of exorbitant and false, deceptive or fraudulent statements, certifications, or materials in claims for payment," and "a lack of management expertise and continuity." By Petition for Formal Hearing dated May 30, 2000, MBI challenged the Department’s Notice of Intent to Deny MBI’s Application for Qualification. MBI’s Petition for Formal Hearing was referred to the Division of Administrative Hearings and assigned DOAH Case No. 00-2431. On September 18, 2000, the Department served on MBI a Modified Notice of Intent to Deny MBI’s application. The Modified Notice gave additional grounds for the Department’s decision to deny MBI’s Application for Qualification. Among the additional grounds for denying MBI’s Application were the following: MBI submitted false, deceptive, fraudulent, erroneous or unreasonable statements, certifications, or materials in its claims for payment to the Department, the City of Tallahassee, the Leon County School Board, and other owners; MBI submitted claims or statements for services not performed or expenses not incurred; MBI failed to avoid, diminish or otherwise mitigate the effects of construction delays; and MBI failed to reasonably cooperate with the Department’s efforts to investigate the accuracy of MBI’s delay claims and statements. On October 13, 2000, MBI filed it’s Petition Seeking Administrative Determination that Rule 14-22.012, Florida Administrative Code, is an invalid exercise of delegated legislative authority (DOAH Case No. 00-4234RX). Specifically, in paragraph 11 of its Petition, MBI alleges that the Rule enlarges, modifies, or contravenes specific provisions of the law implemented, and that the Rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency. MBI later alleged that the Department had also exceeded its grant of rulemaking authority. A three-week final hearing was scheduled to commence in DOAH Case No. 00-2431 on October 26, 2000. Shortly prior to hearing, Petitioner filed a Motion to consolidate DOAH Case Nos. 99-2431 and 00-4234RX. The Department opposed the motion based on their counsel's inability to be adequately prepared for the 00-4234RX rule challenge proceeding. In lieu, the parties agreed to temporarily break from the 00-2431 hearing during the second week and commence the rule challenge. However, on the morning of October 26, 2000, MBI filed a Notice of its Withdrawal of its Petition for Formal Hearing in DOAH Case No. 00-2431. Consequently, DOAH Case No. 00-4234RX was scheduled for hearing on November 14, 2000. Based on MBI’s Notice of Withdrawal of its Petition, an Order Closing File was entered in DOAH Case No. 00-2431 on November 1, 2000. On November 2, 2000, the Department entered a Clerk’s Order of Dismissal of MBI’s Petition challenging the denial of its Application for Qualification. "Good Cause" Defined in Section 337.16(2), Florida Statutes Section 337.16(2), Florida Statutes, provides: For reasons other than delinquency in progress, the department, for good cause, may determine any contractor not having a certificate of qualification nonresponsible for a specified period of time or may deny, suspend, or revoke any certificate of qualification. Good cause includes, but is not limited to, circumstances in which a contractor or the contractor’s official representative: Makes or submits to the department false, deceptive, or fraudulent statements or materials in any bid proposal to the department, any application for a certificate of qualification, any certification of payment pursuant to s. 337.11(10), or any administrative or judicial proceeding; Becomes insolvent or is the subject of a bankruptcy petition; Fails to comply with contract requirements, in terms of payment or performance record, or to timely furnish contract documents as required by the contract or by any state or federal statute or regulation; Wrongfully employs or otherwise provides compensation to any employee or officer of the department, or willfully offers an employee or officer of the department any pecuniary or other benefit with the intent to influence the employee or officer’s official action or judgment; Is an affiliate of a contractor who has been determined nonresponsible or whose certificate of qualification has been suspended or revoked and the affiliate is dependent upon such contractor for personnel, equipment, bonding capacity, or finances; Fails to register, pursuant to chapter 320, motor vehicles that he or she operates in this state. Section 337.16(2), Florida Statutes, authorizes the Department to deny, suspend, or revoke an Application for Qualification based upon a determination of "good cause." "Good cause" is defined by six examples specified in Section 337.16(2), Florida Statutes, but the statute further provides that "good cause includes, but is not limited to" the six circumstances specified in the statute. "Good Cause" Defined in the Rule 14-22.012, Florida Administrative Code Rule 14-22.012, Florida Administrative Code, is entitled: "Suspension, Revocation, or Denial of Qualification." Subsection (1) of this Rule provides in pertinent part: (1) The Department will, for good cause, as that term is defined in Section 337.16(2), Florida Statutes, suspend, revoke, or deny any contractor’s qualification to bid. A suspension, revocation, or denial for good cause pursuant to this rule shall prohibit the contractor from bidding on any Department construction contract for which prequalification is required by Section 337.14, Florida Statutes, and shall constitute a determination of non- responsibility to bid on any other construction or maintenance contract and from acting as a material supplier, subcontractor, or consultant on any Department contract or project during the period of suspension, revocation, or denial. As provided in Section 337.16(2), Florida Statutes, such good cause shall include, but shall not be limited to, the provisions of paragraphs (a) through (e) below. When a specific period of revocation, denial, or suspension is not specified by this rule, the period shall be based on the criteria of Rule 14-22.0141(4), F.A.C., as well as Department contractor certification activities. (a) The contractor’s Certificate of Qualification shall be denied or revoked for at least one year when it is determined by the Department that any of the following has occurred: One of the circumstances specified under Section 337.16(2)(a), (b) or (d), Florida Statutes, has occurred. Affiliated contractors submitted more than one proposal for the same work. In this event the Certificate of Qualification of all of the affiliated bidders will be revoked or denied. All bids of affiliated bidders will be rejected. The contractor made or submitted to the Department false, deceptive, or fraudulent statements, certifications, or materials in any claim for payment or any information required by any Department contract. The contractor defaulted on any Department contract or the contract surety took over any Department contract from the contractor. Rule 14-22.012(1), Florida Administrative Code, authorizes the Department to deny, suspend, or revoke a contractor’s qualification to bid based on a determination of "good cause" as that term is defined in Section 337.16(2), Florida Statutes. The term is defined by examples contained in Section 337.16(2), Florida Statutes, and in the Rule, but it is not exhaustive. In addition to the list of examples of "good cause" specified in Section 337.16(2), Florida Statutes, and Rule 14- 22.012(1), Florida Administrative Code, the Department consistently considers other criteria contained in Chapter 337, Florida Statutes, which relate to the qualifications of a contractor. Section 337.14, Florida Statutes, requires the Department to consider a contractor’s equipment, past record, experience, financial resources and organizational personnel. Other factors considered are contained in Rule 14-22.003, Florida Administrative Code, which addresses the rating of the applicant, work performance record, quality of work performed, history of payment, timeliness of completing projects, cooperative attitude, contract litigation, claims, defaults, integrity, and responsibility. Both Chapter 337, Florida Statutes, and Chapter 14-22, Florida Administrative Code, provide the industry with sufficient guidance as to the criteria for "good cause." Responsibility A contractor bidding on projects of less than $250,000 is presumed to be responsible unless one of the circumstances specified in Rule 14-22.0141, Florida Administrative Code, occurs, in which case the contractor may be deemed "non- responsible." In addition to being "qualified," a contractor seeking to bid on projects over $250,000 must also be deemed to be "responsible." By statute, a contractor must be "responsible" as a prerequisite to being "qualified." Section 337.14(3), Florida Statutes, provides: (3) Upon the receipt of an application for certification, the department shall examine it, verify its statements when necessary, and determine whether the applicant is competent, is responsible, and possesses the necessary financial resources to perform the desired work. The Department must consider the responsibility of the contractor during the review of its Application for Qualification. If a contractor’s qualification has been denied, suspended, or revoked for "good cause," then the contractor is deemed to be non-responsible and not allowed to bid on any project. Under Section 337.16(2), Florida Statutes, the Department may determine the time period in which a contractor is deemed to be non-responsible. Period of Disqualification As to the period of disqualification, Section 337.16(2), Florida Statutes, and Rule 14-22.012, Florida Administrative Code, provide a framework of guidelines and, in some instances, detailed timeframes relating to specific circumstances. For example, Section 337.165(2)(b)1, Florida Statutes, specifically requires the Department to deny or revoke a contractor's certification for a period of 36 months when the Department determines that the contractor has been convicted of a contract crime. This statute provides a frame of reference for the Department in establishing the period of disqualification. Within the framework provided by Chapter 337, Florida Statutes, and Chapter 14-22, Florida Administrative Code, the Department considers a period of disqualification ranging from 0 to 36 months. Rule 14-22.012, Florida Administrative Code, states that when a Certificate of Qualification is denied or revoked for any of the specified reasons in Rule 14-22.012(1)(a), Florida Administrative Code, the denial or revocation is "for at least one year." This revocation period only provides a lower limit. Rule 14-22.012(1), Florida Administrative Code, further provides: "When a specific period of revocation, denial, or suspension is not specified by this rule, the period shall be based on the criteria of Rule 14-22.0141(4), Florida Administrative Code, as well as Department contractor certification activities." Rule 14-22.0141(4), Florida Administrative Code, provides that a contractor will be "ineligible to bid on Department contracts for a period of time based on the seriousness of the deficiency." Rule 14022.0141(4), Florida Administrative Code, provides examples of factors affecting the seriousness of the deficiency. Under the Rule, the examples of factors affecting the seriousness of the deficiency include impacts on project schedule, cost, quality of work, unsafe conditions allowed to exist, complaints from the public, delay or interference with the bidding process, and the potential for repetition. It is not possible to codify in a rule the precise time period of disqualification for every single instance. Because the facts and circumstances supporting a determination of "good cause" vary, it is impracticable to compile an exhaustive list for each instance.
Findings Of Fact Background On January 18, 1985, respondents Department of Transportation (DOT), gave notice through the Florida Administrative Weekly to qualified and interested engineering firms that it desired "letters of interest" from firms interested in providing construction, engineering and inspection (CEI) services on State Job Nos. 87170-3525 through 871703530. 1/ Those jobs related to the construction of two major double leaf bascule bridges across the Intracoastal Waterway "flyover" bridge connecting State Road 826 (N.E. 163rd Street), A1A and continuous roadway sections in northern Dade County, Florida. The project is more commonly known as the Sunny Isles Causeway project. After receiving and evaluating ten letters of interest, a DOT selection committee compiled a "short-list" of the four engineering firms considered most qualified and capable of performing the job. The short-list included petitioner, Craig A. Smith and Associates (petitioner or CAS), Beiswenger Hoch and Associates (BHA), Post, Buckley, Schuh and Jernigan (PBSJ), and Reynolds Smith and Hill (RSH). The four consulting firms were invited to a scope of services meeting on October 14, 1985. At that meeting DOT discussed in detail the services required on the project, answered all inquiries by the firms' representatives, and provided each firm with the scope of services package, which contains the technical specifications and plans. The firms were also given DOT's recommended staffing chart which identified the individuals required on the job and the anticipated man-months required from those personnel. According to DOT's recommended staffing plane the project would require approximately 105,070 man hours. It was emphasized that this staff chart would be used as a "critical" measuring tool to evaluate the proposed staffing plans submitted by the firms, but that the firms would have an opportunity to change the number of man hours if such were necessary. The four firms were told to review the specifications and plans and to submit separate technical and price proposals with DOT no later than November 12, 1985. As a part of the technical proposals the firms were required to estimate the man hours to be provided on the project, keeping in mind the 105,070 figure utilized by DOT in its plans and specifications. The man-hour estimates submitted by the four firms were as follows: BHA 66,011 CAS 74,800 RSH 83,214 PBSJ 97,328 After receiving the technical and price proposals an evaluation of the technical proposals was begun by personnel at both the Miami district office and the Tallahassee central office. The two reviews were conducted independently and without the benefit of the price proposal. The district review committee was made up of three district employees while the central office review was made by a construction engineer. Each firm was numerically ranked based upon the firm's (a) technical plan, (b) management plan, (c) project schedule, and (d) "other" factors. In determining the scores, the Miami and Tallahassee offices used an internal written DOT "procedure" which provides guidelines for evaluating a CEI technical proposal. After the grades were assigned, they were totaled and the firms were ranked according to their scores. The two grades were then averaged on a weighted average basis by DOT's Bureau of Contractual Services. The districts central office and weighted average scores were as follows: Firm District Central Office Average RSH 71 74 74 PBSJ 72 54 63 BHA 62 59 62 CAS 61 57 59 The firms were also ranked in accordance with their price proposals. The following price bids were made by the four firms: CAS $2,129,105 BHA 2,136,417 PBSJ 2,862,929 RSH 2,978,462 It is noted that DOT initially estimated its cost for the CEI services to be $3,033,873. All firms were below this estimate. The grades and comments were forwarded to the office of the state construction engineer. Under his supervision, the two sets of comments and scores were "merged" together into a single recommendation as to which firm was the most qualified to perform the work. This recommendation, which was in the form of a memorandum was then forwarded to the chief of the Bureau of Contractual Services on January 9, 1986. In his memorandum the state construction engineer pointed out that although RSH and PBSJ were both technically qualified, he favored RSH for the project. The memorandum also recommended that neither CAS or BHA "be considered" for the work. The adverse recommendation for CAS was based upon its "inadequate staffing" estimates (some 30,000 man hours less than the DOT estimate), and its proposed resident engineer not being registered as a professional engineer in Florida. A selection committee made up of DOT's secretary, assistant secretary and deputy assistant secretary met on February 10, 1986, to make a final selection. The state director of construction (Murray Yates) was also present for the purpose of giving his recommendation to the committee. In preparing his recommendations Yates reviewed public hearing documents and studies relating to the project, and analyzed the DOT evaluation data and the CEI proposals. He also had discussions with both the district and central office personnel who originally evaluated the proposals. Finally, he relied upon his own experience as the DOT design engineer for the project. Prior to their meeting the members were furnished copies of the staff comments and the technical and price proposals of the four firms. At the first meeting, it was agreed to postpone the decision until February 17, 1986, so that the staff could reevaluate the number of man hours needed on the project. As a result of the further staff study, DOT revised its estimated man hours required on the job from 105,000 to approximately 95,000. At the second meeting PBSJ was tentatively selected as the successful firm subject to the Federal Highway Administration's (FHA) approval. The latter approval was necessary since the project is federally funded and PBSJ did not have the lowest price proposal. According to committee notes, PBSJ was selected because of its "sound technical plan for the project," its familiarity "with basculate construction, having provided similar services on the Miami River crossing," "inadequate" staffing requirements having been proposed by CAS and BHA and their lack of experience on bascule construction, and because the top technical firm, RSH, did not propose a fee acceptable to the selection committee." On February 18, 1986, DOT advised petitioner by letter that it "was not selected to provide engineering services on the above referenced project." No reason was given for rejecting petitioner's proposal. However, DOT orally advised CAS that its rejection was based upon inadequate man hours and the lack of qualifications of CAS personnel. Further, in a letter to the FHA dated February 19, 1986, DOT noted that CAS had been rejected because (a) CAS "did not propose adequate manpower to satisfactorily perform the services," (b) its "staffing plan did not provide the expertise desired" for the project, and (c) CAS has no "demonstrated proven ability in the performance of CEI services for the construction of bascule bridges in Florida." The federal agency gave its approval of PBSJ's selection on a later undisclosed date. There was no published notice of the meetings on February 10 and 17, 1986, nor was specific notice given to the four firms. However, there was no intent to bar any persons from attending the meetings, and had any appeared, they would have been permitted to observe the meetings. There is no indication of record that CAS made any inquiry to DOT as to when such meetings would take place, or that it be given notice of any meetings. No formal minutes of the meetings were kept. In accordance with DOT procedures, CAS was allowed to attend a "settlement meeting" with DOT personnel after the bid protest was filed. Such a meeting gave CAS the opportunity to discuss its proposal and presumably to seek DOT to change its mind. However, DOT did not change its position, and this proceeding followed. The Project Requirements DOT required an outside consultant on this project for additional expertise and manpower. The CEI contract calls for the consultant to administer construction activity by inspecting the work of the contractor. By having the work inspected DOT insures that it will receive the type and quality of work necessary to satisfactorily complete the job. The Sunny Isles Causeway project is considered to be a major project by DOT and was characterized by its state director of construction as being an "extremely complex project." Among other things, it involves the construction of two bascule bridges. A bascule bridge is one that can be raised or lowered to allow boat traffic to pass underneath. The total project cost is approximately $24.4 millions and will require 1,365 calendar days (or almost four years) for completion. The six jobs and their respective contract numbers are the west bound roadway and approach (87170-3525), Casino Canal work (87170- 3526), fly over bridge and roadway (87170-3527), east bound roadway and approach (87170-3528), west bound bascule bridge (87170-3529), and east bound bascule bridge (87170-3530). Despite some assertions to the contrary, it is found that the construction of a bascule bridge is indeed complex in nature. In addition, the Sunny Isles project is unique in the sense that the contract calls for the existing bridge to be demolished and removed, and the new bridge to be placed in the same location. The existing foundation will be widened and incorporated into the foundation of the replacement bridge. Further some of the major utilities crossing the intracoastal waterway, such as the 48 inch force main, will remain in place during construction and cannot be disturbed or damaged. Finally the project is located in an affluent area of Dade County, and the contractor must be careful not to infringe upon adjacent private properties. Because of these features, the successful firm would be expected to have an experienced resident engineer, and other key personnel, who was familiar not only with bascule bridge construction, but also with DOT procedures regarding contractual claims, utility problems maintenance of traffic, and interfacing with the community on any other problems that might arise. DOT's Selection Process DOT is required by state law to "adopt administrative procedures for the evaluation of professional services, including, but not limited to capabilities, adequacy of personnel, past record, experience, whether the firm is a certified minority business . . . and such other factors as may be determined by the agency to be applicable to its particular requirements." In accordance with the foregoing legislative mandated DOT has informally adopted a document known as "Guidelines and Philosophy on Consultant Selections." These guidelines are set forth in an agency memorandum dated January 29, 1985, prepared by its then chief of Bureau of Contractual Services, John S. Berry, III. This memorandum has been disseminated to all district consultant coordinators. In general terms, the memorandum provides district personnel with guidelines to be used in grading the short-list firms in the various technical non-technical and management categories. More specifically, the graders are given factors to be considered and scores to be given when assessing a firm's technical ability and capability to meet time and budget requirements. Specific guidelines are also given for non-technical and non- management factors such as workload and past performance. Further guidelines are given to assess the firms' managerial skills. On October 20, 1983, DOT adopted Procedure No. 146-002 which governs the selection process for engineering consulting firms. However, the procedure has not been formally adopted as a rule. It covers everything from the initial DOT decision to use an outside consultant through the execution of the final contract. Among other things, the procedure sets forth in detail guidelines for (a) initial selection evaluation, including the duties of the requesting unit, contractual services officer and selection committee, (b) scope of services meeting, (c) technical review committee evaluations and (d) final selection evaluation. Once the proposals have reached the final selection stage, DOT procedure No. 146-002 requires that the contractual services office provide the final selection committee with a summary of all evaluations and grade point averages and the volume of work previously awarded to each firm. The committee must then review these summaries; the volume of work previously awarded the firms, the price proposals, and assign a rating factor to each firm. Although the contents of the memorandum and procedure have not been "formally" adopted as rules, there was testimony from DOT personnel explaining the purpose, meaning and contents of both. In the case at bar the agency adhered to its January 29, 1985 memorandum and procedure No. 146-002 in evaluating the various technical proposals. More specifically, the evaluation process considered each firm's capabilities personnel past record experience and other relevant factors. Prior to the selection of the successful firm DOT met with each firm including petitioner, at the scope of services meeting on October 14, 1985. At that meeting each firm was given the opportunity to ask questions, seek clarification on any ambiguous matter, and learn the specific needs of DOT. In addition it was emphasized to each firm that DOT placed special significance on the staffing plan that would be submitted by each firm. Finally, each step in the review and selection process was documented in writing by DOT, and such documents have been made available to petitioner and all other interested parties. These documents have been amplified on by DOT personnel through discovery and oral testimony at final hearing. DOT Concerns With CAS's Proposals DOT expressed several concerns with CAS's technical proposal, two of which were valid. First DOT was concerned that CAS did not propose adequate staffing and manpower for the jobs. This concern was based on staffing problems CAS is now experiencing on another pending CEI project, and the inadequate number of hours (74,800) proposed in CAS's technical plan for the Sunny Isles project. A failure to provide adequate staffing can create serious potential problems. These include inaccurate recordkeeping, loss of federal funding, contractual claims, insufficient personnel to perform all necessary tasks, a failure to adhere to public concerns, and the possibility of having to obtain another consulting firm to finish the job. In preparing the job specifications, DOT estimated that 105,070 man hours would be required from the CEI firm during the life of the project. After further evaluations this was reduced to approximately 95,000 man hours to eliminate around 10 percent of "fat" in the estimate. CAS estimated that only 74,800 man hours would be required, which was some 21 percent below DOT's revised estimate. Although the DOT resident engineer who initially prepared the 105,070 man hours estimate did not have the plans and specifications for the project when his original estimate was made, he relied upon his extensive experience and familiarity with CEI contracts in preparing his estimate. The engineer had estimated man hours on twelve other CEI contracts, utilized information from the project manager, reviewed available design data, and made a visit to the job site. These calculations were not subsequently reviewed in detail by any other DOT employee. However, the same procedure was followed by the engineer who prepared the estimate for PBSJ and he reached a comparable figure. The methodology and results thereof were not shown to be unreasonable or unreliable, and it is found that the estimates by DOT and PBSJ were both reasonable and appropriate. Three experienced CAS personnel were involved in preparing that firm's estimate, and they had the benefit of the plans and specifications in doing so. In contrast to the 173 hour manmonths used by DOT and PBSJ in their calculations, CAS "absorbed" 13 hours into its overhead and accordingly used a 160 hour man month in its calculation. It also included the project directors' man hours in its overhead cost. This results in CAS having a lower man-hour estimate for its staffing plan. Even so, CAS made no effort to determine the DOT methodology at the scope of services meeting, or to advise DOT that it was calculating man hours in a different manner. Given the low number of man hours, and CAS's problems on another pending job, DOT's concern was well- founded. DOT also expressed concern over the expertise of CAS's staff to be assigned to the job. Although the resident engineer had many years of experience as an engineer, he had just moved to Florida and had no prior construction experience in the State. There was no evidence that he was familiar with DOT procedures, which is of particular importance where a complex and sensitive project is involved. Moreover, the firm itself has never constructed a bascule bridge. Given these considerations, DOT properly found the expertise and qualifications to be less than that of the successful firm. Finally, at the initial stage of the review process, DOT personnel were concerned that CAS's proposed resident engineer was not a registered professional engineer in the State of Florida. However, this concern was unfounded since the engineer in question was granted his registration on February 4, 1986, which was prior to the final selection. The Successful Firm PBSJ is currently working on three CEI contracts for DOT. It has just successfully completed a CEI contract on a major bascule bridge project in downtown Miami which is comparable to the Sunny Isles project. The firm's proposed resident engineer has been involved on five bascule bridge projects in prior years. The firm's man-hour estimate of 97,328 was in line with DOT's revised estimate, and was prepared by the proposed resident engineer in a manner consistent with that used by DOT's estimator. Given the type and amount of experience on the part of PBSJ, and its adequate staffing plan DOT properly selected PBSJ as the consulting engineer on the project.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that a final order be entered awarding the contract on State Job Nos. 87170-3525--87170-3530 to Port, Buckley, Schuh and Jernigan, Inc., and that Craig A. Smith's bid protest be DENIED. DONE and ORDERED this 14th day of May 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.
