Findings Of Fact The findings below are based on the undisputed facts set forth in Petitioner's Protest and supplements thereto, Respondent's Motion to Dismiss, Petitioner's Response in Opposition to Motion to Dismiss, and representations by the parties during the motion hearing. On October 7, 2009, Respondent electronically posted its final ranking of firms which had submitted proposals to provide mechanical engineering services for six HVAC projects for Respondent in 2010. Respondent's electronic posting of the final ranking of firms included the following language: "Failure to file a protest within the time prescribed in Section 120.57(3), shall constitute a waiver of proceeding under Chapter 120, Florida Statutes." On October 12, 2009, Petitioner filed a Notice of Intent to Protest the final rankings. On October 22, 2009, Petitioner filed its Protest. Although Petitioner's Protest was timely filed, Petitioner initially did not file a bond or other security. The Protest alleges that Petitioner was not required to file a bond, because Respondent did not include in its final ranking notice that a failure to post a bond would constitute a waiver of proceedings under Subsection 120.57(3)(a), Florida Statutes. Additionally, the Protest alleges that Respondent: (1) failed to provide Petitioner with notice of the estimated contract amounts within 72 hours, exclusive of Saturdays and Sundays and state holidays, of the filing of a notice of protest as required by Subsection 287.042(2)(c), Florida Statutes; and (2) because Respondent had not provided that notice, Petitioner was unable to calculate the amount of the bond required and was, therefore, relieved of the obligation to file a bond. On October 30, 2009, Respondent, through counsel, wrote to Petitioner. In this correspondence, Respondent informed Petitioner that Section 287.042, Florida Statutes, did not apply to Respondent because it was not an "agency" for purposes of that law. Respondent further informed Petitioner that Section 255.0516, Florida Statutes, allowed Respondent to require a bond in the amount of two percent of the lowest accepted bid or $25,000. Respondent also notified Petitioner that because it was protesting all six project awards, all awards must be included in the calculation of the bond amount required. Finally, Petitioner was allowed ten days within which to post a bond. On November 3, 2009, Petitioner submitted to Respondent a cashier's check in the amount of $3,143.70 and noted that the check was intended to serve as security for the Protest "as required by F.S. 287.042(2)(c)." In the letter which accompanied the check, Petitioner also noted that: (1) the amount of the check was determined by calculating one percent of the largest proposed contract award amount of $314,370.00; and (2) Petitioner was providing that amount "under duress," because Respondent had "just published the contract award amounts." The relief requested by Petitioner in the Protest is that: (1) it be awarded one of the six HVAC projects comprising the final ranking; and/or (2) alternatively, all six awards be rescinded and "start the entire process over." The final ranking which Petitioner protests included six separate projects, each of which had a separate construction budget. Those projects and their respective construction budgets are as follows: Northwest--$1,144,000; Tampa Palms--$2,649,081; Yates--$2,770,828; Ferrell--$2,550,758; Stewart--$2,805,437; and Erwin--$4,191,603. The proposed fees for each project were as follows: $97,240 (Northwest); $211,926 (Tampa Palms); $221,666 (Yates); $204,061 (Ferrell); $224,435 (Stewart); and $314,370 (Erwin).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Hillsborough County School Board, issue a final order dismissing the Protest filed by Petitioner, RHC and Associates, Inc. DONE AND ENTERED this 20th day of January, 2010, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 20th day of January, 2010.
The Issue The issue in this bid protest is whether Respondent acted fraudulently, arbitrarily, illegally, or dishonestly when it decided to reject all of the bids it had received on a contract to deliver food and supplies to the public school cafeterias in Broward County.
Findings Of Fact The evidence presented at final hearing established the facts that follow. The Invitation to Bid On September 28, 2000, the Board issued ITB 21-076B for procurement of “Mainline Foods and Supplies for Cafeterias.” Through this solicitation the Board sought to let a four-year contract, renewable for two additional one- year periods, pursuant to which the successful bidder would deliver food and supplies to the approximately 192 public school cafeterias in Broward County, Florida. Sysco is the incumbent supplier of foods and supplies for the Board’s cafeterias. The ITB listed and described the desired foods and supplies in two separate sections, Section 5.09 and Section 6.02. Bidders were required to bid on each of the 186 individual items listed in the Product Bid Sheets that comprise Section 5.09. In contrast, bidders were instructed not to quote prices for the 130 items listed in Section 6.02; rather, the ITB provided that “[t]he awardee, once selected, shall submit to the [Board] product costs and selling prices for items in Section 6.02.” This protest focuses on particular specifications of the Product Bid Sheets in Section 5.09 and is not concerned with Section 6.02. The Product Bid Sheets in Section 5.09 were composed of tables consisting of eight columns and, in total, 189 rows — one row for each item and three empty or "open" rows requiring no response. The first three columns, from left to right, set forth information that identified each item sought. At each row, Column 1 contained the “Sequence Number” that the Board had assigned to each product “for tracking purposes.” Column 2 in each row contained a description of the product to be purchased. So-called “approved brands” for each item were listed in Column 3. The ITB identified “approved brands” in several ways. The most specific identification was by brand name and product code or number, for example “Tony’s 78642.” This form of identification designated a particular manufacturer’s particular product. The term “approved branded product” will be used herein to refer to this type of specific product identification in Column 3. For many items, an approved brand was identified by manufacturer’s name only, without an accompanying product code, e.g. “Lykes ________.” The ITB instructed bidders that “[i]f a code number, name, or color is not listed by [the Board] along with an approved brand[,] the bidder shall enter the code by the brand in the space provided.” (ITB, Section 5.03.) In this Recommended Order, the term “brand-only approval” will denote a brand approval that lacked a specific product code. Finally, the ITB identified a large number of approved brands in Column 3 of Section 5.09 by the term “Distributor’s Choice,” meaning the distributor’s brand of choice. Bidders were instructed to “enter, in the space provided, the brand and code” when quoting a Distributor’s Choice. (ITB, Section 5.03.) For 84 of the 186 items listed in the Product Bid Sheets, the approved brands in Column 3 were identified exclusively as Distributor’s Choice.1 Thus, for nearly half of the Section 5.09 items, the bidder needed to select a brand and product that fit the specifications set forth in Column 2. For another 15 items, Column 3 contained brand-only approvals, meaning that the bidder was required to select an appropriate product from the approved manufacturer’s line. Brand-only approvals were combined with a Distributor’s Choice option in Column 3 for ten additional items. Consequently, there were 109 items — 59% of the total — on which the bidders were not given the option of bidding an approved branded product. Conversely, for 23 items Column 3 listed just one approved branded product, leaving the bidders no alternative but to bid on a particular manufacturer's particular product. Similarly, for 26 additional items, at least two approved branded products were listed, giving bidders a choice but not requiring them to compare the specifically designated brand- name products with the product descriptions in Column 2. In sum, bidders were obligated (and entitled) to bid an approved branded product on at least 49 items. There were 28 items for which Column 3 combined an approved branded product (or products) with either a brand- only approval (or approvals) or a Distributor’s Choice option.2 Accordingly, a bidder could, in theory, have quoted prices on as many as 77 approved branded products. At the other extreme, a bidder could have bid 137 items for which it had selected brand, product code, or both. Of the 186 items listed in Section 5.09, four are at the heart of the instant dispute. Ignoring for present purposes the sequences above and below the at-issue items, these four were described as follows in the first three columns of the Product Bid Sheets:3 1 SEQ NO. 2 PRODUCT DESCRIPTION 3 APPROVED BRANDS 1009 Breakfast Pizza (F). Crust topped with cheese, gravy, scrambled eggs and bacon. Minimum size 3 oz. to meet 1 meat/meat alternate plus 1 bread serving. CN Label. Tony’s 63564 Nardone’s 80MSA-100 Size of portion oz. 1036 Pizza, French Bread, Southland Bagel Pepperoni (F): 50-50 8953S Mozzarella blend. Minimum Prestige 30215 5.45 oz. to meet 2 oz. Nordone’s _________ meat/meat alternative and 2 KT Kitchen ________ bread servings. CN label. Size portion oz. 1037 Pizza, Mexican Style (F). Tony’s 63669 Minimum 5 ounces to meet 2 Nordone’s 100MA oz. meat/meat alternate and 1 KT Kitchens 01476 ½ bread serving. With or w/o VPP. CN label. Size portion oz. 2010 Pancake and Sausage (F) Pancake batter around a link sausage on a stick. 2.5 oz. State Fair 70601 Leon’s 28002 Foster Farms 96113 Minimum weight to meet 1 oz. meat/meat alternative and 1 bread serving. CN Label. Size of portion: oz. Other provisions of the ITB are relevant to this protest as well. Section 7 of the General Conditions of the ITB stated in pertinent part as follows: AWARDS: In the best interest of the School Board, the Board reserves the right to withdraw this bid at any time prior to the time and date specified for the bid opening; to reject any and all bids and to waive any irregularity in bids received; to accept any items or group of items unless qualified by bidder; to acquire additional quantities at prices quoted on this invitation unless additional quantities are not acceptable, in which case the bid sheets shall be noted “BID IS FOR SPECIFIED QUANTITY ONLY.” All awards made as a result of this bid shall conform to applicable Florida Statutes. Section 1.03 of the ITB’s Special Conditions stated in pertinent part as follows: AWARD: A contract shall be awarded IN ITS ENTIRETY to the lowest responsive, responsible bidder (See Section 4.01) with the lowest initial product cost plus fixed fee and meeting all specifications terms and conditions of the bid. It is necessary to bid on every item on the Product Bid Sheets (Section 5.09) in order to have your bid considered for award. Product costs shall be stated in the spaces provided in the Product Bid Sheets (Section 5.09). All items shall have an individual cost. Failure to state the individual cost for an item shall result in disqualification of bid submitted. Bidder shall carefully consider each item for conformance to specifications. Any item that does not meet the specifications shall be disqualified. Section 1.10 of the ITB stated as follows: INTERPRETATIONS: Any questions concerning any condition or requirement of this bid shall be received in the Purchasing Department in writing on or before October 11, 2000. Submit all questions to the attention of the individual stated in Section 1.37 [sic] of this Bid. If necessary, an Addendum shall be issued. Any verbal or written information which is obtained other than by information in this bid document or by Addenda shall not be binding on the School Board. Section 1.12 of the ITB stated as follows: BRAND STANDARDIZATION: The specified brands and product numbers listed on the Product Bid Sheets have been approved by SBBC Food and Nutrition Services Department and bids shall be accepted only on these approved items, except where “Distributor’s Choice” is indicated. If a bidder wishes to have an item placed on this approved list for future bidding, the bidder shall furnish Food and Nutrition Services Department samples of the item for testing purposes. If approved, the Food and Nutrition Services Department shall include the new item on the future list of approved items. In the event that any approved item supplied under this bid does not prove satisfactory, that item shall be removed from the approved list until such time as correction is made to the satisfaction of the Food and Nutrition Services Department. Section 1.13 of the ITB stated as follows: PRODUCT NUMBER CORRECTIONS: If the product number for the brand specified on the Product Bid Sheets is: a) no longer available and has been replaced with a new updated number with new specifications, the bidder should submit complete descriptive literature on the new product number; or b) incorrect, the corrected product number should be noted on the Product Bid Sheets, in the space provided. Section 1.35 of the ITB stated as follows: INFORMATION: Any questions by prospective bidders concerning this Invitation to Bid should be addressed to Mr. Charles High, Purchasing Agent, Purchasing Department, (954) 765-6107 who is authorized only to direct the attention of prospective bidders to various portions of the Bid so they may read and interpret such for themselves. Neither Mr. High nor any employee of [the Board] is authorized to interpret any portion of the Bid or give information as to the requirements of the Bid in addition to that contained in the written Bid Document. Questions should be submitted in accordance with Special Condition 1.10. Interpretations of the Bid or additional information as to its requirements, where necessary, shall be communicated to bidders only by written addendum. Section 2.03 of the ITB stated as follows: ADDING AND DELETING ITEMS: Food and non- food items utilized by SBBC Food and Nutrition Services Department may be subsequently added, deleted or transferred from or to the lists in Sections 5.09 and 6.0, individually or in groups, at the discretion of SBBC Food and Nutrition Services Department Section 5.02 of the ITB provided in pertinent part as follows: COLUMN 2: (Product Description) This column provides bidder with descriptions of the products to be purchased, including portion or serving sizes or grades and standards, as may be applicable. Bidders should fill in the information wherever indicated on portion, serving size, etc., and provide manufacturers’ certificates of grades or compliance whenever “CR” is shown. If there is a conflict between the product description in Column 2 and the approved brands in Column 3, compliance with approved brands shall prevail. [W]hen evaluating bids, [staff] may request that a bidder furnish, within three days of request, further confirmations of grades and standards, copies of specification sheets, and other product data, as may be required. (Underlining supplied). For ease of reference, the underlined sentence above — which will prove pivotal — will be called the "Reconciliation Clause" in this Recommended Order. Section 5.03 of the ITB stated in pertinent part as follows: COLUMN 3: (Approved Brands*) Prior to acceptance of a bid, all bid brands are subject to review by SBBC Food and Nutrition Services Department for compliance with the bid product requirements. If a code number, name, or color is not listed by SBBC along with an approved brand; the bidder shall enter the code by the brand in the space provided. Whenever quoting a “Distributor’s Choice”, a bidder shall enter, in the space provided, the brand and code. Whenever an approved brand, other than “Distributor’s Choice”, is listed, the bidder should indicate in Column 3 the brand bidding, (circle the brand). IMPORTANT: Some of the codes listed may be obsolete or incorrect, in which case the bidder is to enter the correct code. After award, SBBC may request the awardee to obtain prices and samples for brands and codes not listed. The decision as to whether a product does or does not meet the requirements of Column 2 is at the discretion of SBBC. A bidder may be requested, prior to bid award, to furnish acceptable confirmation from a packer that a product meets the requirements set forth in Column 2. Section 5.11 of the ITB stated in pertinent part as follows: CN Label: When a product is CN (Child Nutrition) labeled, it is “certified” by the packer to conform to the nutritional requirements of the USDA Food and Nutrition Service (FNS). The label shows the contribution made by a given amount of product toward meal requirements. When CN label is noted in Column 2 of the Product Bid Sheets, it is understood that the CN label must be in place for the product to be bid. Particular Responses to the Invitation to Bid A. Sequence No. 1009 – Breakfast Pizza At Sequence No. 1009, Column 3 of the Product Bid Sheet contained two approved branded products: Tony’s 63904 and Nardone’s 80MSA-100. School Food quoted a price of $28,500 on the specifically approved Nardone’s product. In preparing its bid, Sysco obtained a product description from Nardone Bros. Baking Co. Inc. ("Nardone") for its 80MSA-100 product. Sysco believed that Nardone’s 80MSA- 100 failed to meet the product description set forth in Column 2 and therefore offered the other approved branded product, Tony’s 63564, at a price of $33,000. A third bidder, Mutual Wholesale Co. ("Mutual Wholesale"), offered to provide the approved Tony’s product at a price of $33,012.00. Sequence No. 1036 – French Bread Pepperoni Pizza The product description in Column 2 of the item listed at Sequence No. 1036 required that a CN label be in place for a product to be bid. A CN label signifies compliance with certain U.S. Department of Agriculture guidelines. The Board must obey these guidelines to obtain reimbursement for its food services program from federal funding sources. School Food offered the Prestige 30215 approved branded product in its response to Sequence No. 1036 at a price of $30,750. In preparing its response to the ITB, Sysco learned that the Prestige 30215 approved branded product had been submitted for CN label approval but lacked that approval at the time of bidding. Perceiving a conflict between the product description in Column 2 and the approved branded product in Column 3, Sysco concluded that it could not quote a price for Prestige 30215. Instead, Sysco offered to provide another approved brand, KT Kitchen’s 01093, at a cost to the Board of $36,397.50. Like School Food, Mutual Wholesale bid on the Prestige 30215 brand name product, quoting a price of $30,000. As of November 29, 2000, the approved branded product, Prestige 30215, had obtained CN approval from the U.S. Department of Agriculture. Sequence No. 1037 – Mexican-Style Pizza In its response to Sequence No. 1037, School Food offered an approved branded product, Nardone's 100MA, quoting a price of $206,620. During its bid preparation, Sysco learned that Nardone used another code for this product — namely, "96MCSA." Sysco believed that it could not bid on "Nardone’s 100MA," even though it was an approved branded product. Thus, in its bid Sysco offered to provide another approved branded product, Tony's 63669, at a price to the Board of $229,800. In its response to Sequence No. 1037, Mutual Wholesale quoted a price of $214,020 for yet another approved branded product, KT Kitchen’s 01476. "Nardone's 100MA" is an actual product code used internally by Nardone to denote an actual, available product that is referred to externally (or "on the street") as "Nardone's 96MCSA." In other words, "Nardone's 100MA" and "Nardone's 96MCSA" refer to the same product. Sequence No. 2010 – Pancake and Sausage In response to Sequence No. 2010, School Food offered to provide an approved branded product, Leon’s 28002, at a cost to the Board of $14,858. Sysco discovered through its bid preparation research that there might be a conflict between the product description in Column 2 of Sequence 2010 and the approved Leon’s 28002 brand name product, which was unambiguously designated in Column 3, because Leon’s 28002 consisted of a "frankfurter" wrapped in a pancake, and Sysco did not consider a "frankfurter" to be a "link sausage."4 As the Board has conceded, unless a bidder knew the products well or made a comparison of the approved branded products to the product description in Column 2, it would not have perceived the possible conflict between that description and the approved Leon’s 28002 brand name product listed in Column 3. Around October 20, 2000, Sysco notified the Board of its concern regarding Sequence No. 2010. In so doing, however, Sysco failed to comply with Section 1.10 of the ITB, which required that questions about the bid specifications be submitted in writing on or before October 11, 2000. In violation of Section 1.10, a Sysco employee named Elaine Blaine, who was responsible for preparing Sysco's bid, left a telephone message with the Board's Purchasing Agent, Charles High, inquiring about Leon's 28002 and letting him know that, in Sysco's opinion, this approved branded product did not match the description in Column 2 of Sequence No. 2010. Mr. High returned Ms. Blaine's phone call on or around October 24, 2000, leaving a message on her voice mail to the effect that Leon's 28002 was not the correct item and advising that another brand name product, Leon's 28012, should be bid in its place. As Section 1.35 of the ITB made plain, however, Mr. High had no authority whatsoever to render an opinion such as this. Although Mr. High's communication with Ms. Blaine was improper, it had no effect on the competitive process. Clearly, Sysco could not reasonably have relied on Mr. High's unauthorized opinion, and anyway it did not do so. Thus, in short, while Mr. High's irregular contact with Ms. Blaine cannot be condoned, his ex parte advice to Sysco fortunately conferred no competitive advantage on any bidder and hence was immaterial. In the end, Sysco offered another approved branded product, State Fair 70601, in lieu of Leon's 28002, quoting a price of $20,111. Mutual Wholesale also bid on State Fair 70601, quoting a price of $20,119.50. Issuance of Addenda and Submission of Bids The Board issued two addenda to the ITB. Addendum No. 1, among other things, inserted the code number for the approved KT Kitchen’s brand name product listed in Column 3 for Sequence No. 1036, and it also changed the approved Foster Farms branded product listed in Sequence No. 2010. The addenda made no other changes to either Sequence Nos. 1009, 1036, 1037, or 2010. On October 31, 2000, the Board opened the four bids that it had received in response to the ITB. Bids were submitted by Big Bamboo, Inc., Mutual Wholesale, Sysco, and School Food. Big Bamboo, Inc. failed to submit a complete proposal and thus its bid was disqualified as non-responsive. The remaining bids, which were determined to be responsive, offered, respectively, the following total annual contract prices: Mutual Wholesale $9,757,284.86 Sysco $9,656,770.21 School Food $9,263,170.42 Accordingly, School Food was the lowest bidder, its bottom line beating the closest competitor by nearly $400,000 per year. On November 9, 2000, the Board's Purchasing Department posted its recommendation that the contract be awarded to School Food. The Sysco Protest of the Recommended Award On November 13, 2000, Sysco timely filed a notice of intent to protest the recommended award to School Food. Sysco timely filed its formal written protest with the Board on November 22, 2000. Pursuant to rule, a Bid Protest Committee comprised of three administrators is required to meet with a bid protester in accordance with Section 120.57(3)(d), Florida Statutes, to attempt a resolution of the protest by mutual agreement. By rule, the Bid Protest Committee has been delegated the agency’s authority to perform this function. Consequently, pursuant to School Board Policy 3320 and Section 120.57(3)(d), Florida Statutes, a Bid Protest Committee convened on December 1, 2000, in an attempt to mutually resolve any disputed issues arising out of Sysco's protest. Despite the fact that the thrust of Sysco's protest was an attack on the responsiveness of School Food's bid, School Food was not invited to attend the December 1, 2000, meeting of the Bid Protest Committee, which apparently was not conducted as a public meeting. A court reporter was present, however, and the transcript of the committee's December 1, 2000, meeting is in evidence. The Bid Protest Committee restricted its review of the procurement to consideration of whether the ITB suffered from defective specifications in Sequence Nos. 1009, 1036, 1037, and 2010, even though Sysco’s protest had raised broader issues concerning the responsiveness of School Food's bid. At the December 1, 2000, meeting of the Bid Protest Committee, a Board employee named Raymond Papa, whose title is Supervisor of Field Services for Food and Nutrition Service, made the following representations concerning the sequence numbers in question: 1009 (Breakfast Pizza). Mr. Papa claimed to have erred by listing Nardone's 80MSA-100 in Column 3 of Sequence No. 1009. This approved branded product, Mr. Papa told the committee, should have been identified in Column 3 of Sequence No. 1008, which is also a breakfast pizza but has a different product description. 1036 (French Bread Pepperoni Pizza). Mr. Papa informed the committee that Prestige 30215 was approved by the U.S. Department of Agriculture but did not have a CN label "at this time." 1037 (Mexican Style Pizza). Mr. Papa advised the committee that there seemed to be some confusion arising from the ITB's use, in Column 3 of Sequence No. 1037, of the Nardone's product code 100MA, which was the manufacturer's internal code for the approved branded product, instead of the more common "street number" (96MCSA) used in the company's literature. Mr. Papa further explained: "Apparently that code [referring to 100MA] would have given me the right product" — in fact, it would have, see Paragraph 33 above — "but it needs more clarification on my part." 2010 (Pancake and Sausage). Mr. Papa pointed out the purported conflict between the product description in Column 2 of Sequence 2010 and the approved Leon's 28002 brand name product identified in Column 3. He claimed to have been seeking a pancake with a sausage inside, not a frankfurter, asserting that the two meat products were substantially different. The Board’s counsel informed the committee that the specifications for Sequence Nos. 1009, 1036, 1037, and 2010 had created sufficient confusion to adversely affect the competition. He urged the committee to remedy this purported confusion by voting to reject all bids so that the contract could be re-advertised with revised specifications. The committee was not asked to consider the Reconciliation Clause of Section 5.02 of the ITB. The three members did not discuss this provision. It is reasonable to infer, and the trier of fact so finds, that the committee paid no attention to the Reconciliation Clause in weighing the merits of staff's recommendation to reject all bids. With little discussion, the three-member Bid Protest Committee voted unanimously to rescind the recommendation to award School Food the contract and to reject all bids on the ground that the specifications were defective and hence that revisions were needed to "level the playing field." A revised recommendation to reject all bids was posted on December 12, 2000. School Food's Protest of the Rejection of All Bids On December 15, 2000, School Food timely filed its notice of intent to protest the Board's preliminary decision to reject all bids. This was timely followed by a formal written protest, which was filed with the Board on December 22, 2000. The revised recommendation posted on December 12, 2000, accurately announced the Board's intention to reject all bids. As noted in School Food's formal bid protest, however, the revised recommendation erroneously stated that the action was taken because “no acceptable bids were received.” To remedy this problem, a corrected revised recommendation was posted by the Board on January 12, 2001. It stated that the rejection of all bids was “due to inaccuracies within the bid specifications.” On January 16, 2001, School Food timely notified the Board of its intent to protest the corrected revised recommendation. Thereafter, on January 24, 2001, School Food timely filed its formal protest of the corrected revised recommendation to reject all bids. School Food posted a bid protest bond in the amount of $5,000 in accordance with School Board Policy 3320. This bond is conditioned upon School Food's payment of the Board's litigation costs should the Board prevail. Pursuant to School Board Policy 3320 and Section 120.57(3)(d), Florida Statutes, the Board's Bid Protest Committee conducted a meeting with School Food on February 9, 2001, in an attempt to mutually resolve any matters in dispute. The Bid Protest Committee was composed of two persons who had participated in the December 1, 2000, meeting and a third member who had not attended that earlier meeting. Sysco received advance notice of the February 9, 2001, meeting of the Bid Protest Committee, and its lawyer was permitted to attend as a witness. These courtesies, tellingly, had not been extended to School Food in connection with the committee meeting that had been held on December 1, 2000, to discuss the original Sysco bid protest. As before, a court reporter was present, and the transcript of the February 9, 2001, meeting is in evidence. The Bid Protest Committee was again informed of staff's opinion that the ITB contained defective specifications in Sequence Nos. 1009, 1036, 1037 and 2010. At the February 9, 2001 meeting, the Board's counsel argued vigorously in support of the decision to reject all bids. For the most part, his argument was an expanded version of that which had been advanced in favor of rejection at the December 1, 2000, meeting. More emphasis was placed, the second time around, on the concern that the supposedly defective specifications would or might, in some cases, result in the Board not receiving the food items that it had desired. Once again, the committee was not asked to consider the Reconciliation Clause of Section 5.02 of the ITB. And once more, the committee members did not discuss this provision. It is reasonable to infer, and the trier of fact so finds, that the committee failed to take account of the Reconciliation Clause in weighing the merits of staff's recommendation that the previous decision to reject all bids be adhered to. By a vote of two to one, the Bid Protest Committee upheld the recommendation to reject all bids. The contemporaneous comments from the members in the majority, together with other evidence introduced at hearing, reveal that the committee was persuaded that the field of play had been tilted by the purportedly defective bid specifications; its decision clearly was based on a desire to “level the playing field.” Ultimate Factual Determinations All of the purported deficiencies in the bid specifications fall squarely within the operation of the ITB’s plain and unambiguous Reconciliation Clause which, to repeat for emphasis, provided as follows: If there is a conflict between the product description in Column 2 and the approved brands in Column 3, compliance with approved brands shall prevail. (ITB, Section 5.02.)5 There is no evidence that the Reconciliation Clause misrepresented the Board's true intent or was the product of a mistake. The administrative law judge has determined as a matter of law that the Reconciliation Clause is clear and unambiguous; therefore, as a matter of fact, it manifests the Board's intent that a Column 2 description must yield to the identification of an approved branded product in Column 3 in the event of conflict between them. By providing in clear terms a straightforward, easily applied, bright-line rule for resolving the very type of conflict that the Board now urges justifies a rejection of all bids, the ITB reasonably ensured that no such ambiguity or uncertainty would imperil the competitive process. No reasonable bidder could possibly have been confused by the unambiguous Reconciliation Clause. All bidders, of course, were entitled to protest the Reconciliation Clause, and any other bid specifications, within 72 hours after receiving the ITB. See Section 120.57(3)(b), Florida Statutes; see also ITB, Section 1.21. None did. If Sysco believed, as Ms. Blaine testified, that it could not bid on certain approved branded products listed in Sequence Nos. 1009, 1036, 1037, and 2010, then its belief was unreasonable. Confusion that is objectively unreasonable in fact, as Sysco's was, is not evidence of deficiencies in the bid specifications or of a breach in the integrity of the competitive process. In sum, the purported "deficiencies" upon which the Board based its intended decision to reject all bids are not deficiencies in fact. Thus, the Board's professed reason for starting over — that flaws in Sequence Nos. 1009, 1036, 1037, and 2010 put bidders to the Hobson's choice of either risking disqualification by bidding on an approved branded product that did not strictly conform to the description in Column 2 or offering a higher-priced product meeting the Column 2 description — is factually unfounded and illogical.6 It should be observed, also, that, in view of the unambiguous Reconciliation Clause, the approved branded products upon which School Food bid in response to Sequence Nos. 1009, 1036, 1037, and 2010 are conforming goods in every respect. That is, School Food did not "mis-bid" these items. Indeed, the Board having identified specific approved branded products; having instructed bidders that "bids shall be accepted only on these approved items, except where ‘Distributor's Choice’ is indicated," see ITB, Section 1.12; and having made clear, in the Reconciliation Clause, that any conflict between an approved branded product and a product description shall be resolved in favor of the approved branded product, it would be arbitrary and capricious to disqualify School Food's bid for non-responsiveness in connection with these items. See Footnote 6, supra. The evidence regarding which particular products the Board truly wanted to purchase in connection with the sequences at issue is in conflict. On the one hand, there is the ITB itself, which is strong evidence of the Board's desires. As a written expression of the Board's intent, the ITB gives voice not merely to the opinions of one person, but rather speaks for the whole Board as an organization. (The latter point is underscored by Section 1.35, which plainly stated that no single employee of the Board was authorized unilaterally to interpret the ITB.) The ITB's reliability is further enhanced by the fact that it was prepared before the bids were opened, before it was known that the incumbent vendor was not the apparent low bidder, before the first protest was filed, and before this administrative litigation commenced. On the other hand, there is Mr. Papa's testimony that he made mistakes in Sequence Nos. 1009, 1036, 1037, and 2010, listing approved branded products that, in hindsight, he claimed should not have been listed. Casting doubt on Mr. Papa's credibility, however, is the fact that he did not discover these so-called mistakes until after the Sysco protest helpfully brought the matters to his attention. Also, in deciding how much weight to give Mr. Papa’s testimony, the trier paid particular attention to the picayune nature of the purported conflicts in the specifications. Indeed, it is seriously debatable whether there really were any conflicts in Sequence Nos. 1009, 1036, 1037, and 2010.7 Additionally, having observed Mr. Papa’s demeanor and having given thoughtful consideration to the substance of his testimony, the trier of fact formed the distinct impression that this witness was a bit too anxious to grasp at a plausible excuse — even these hyper-technical “conflicts” — to scuttle the process and do it over. In weighing Mr. Papa's testimony, the trier has factored in a discount for reasonably inferred bias. Further, Mr. Papa's testimony was premised on the view that Column 2 expressed the Board's true intent, taking priority over Column 3 in cases of conflict. To fully credit Mr. Papa's testimony would require that the Reconciliation Clause be turned on its head — which, incidentally, would constitute an impermissible material change in the bid specifications.8 There is absolutely no basis in this record for doing that. In resolving the conflict in the evidence regarding which goods the Board really wanted, the trier of fact has considered the totality of circumstances and has chosen to give the greatest weight to the plain and unambiguous Reconciliation Clause in the ITB which, when read in conjunction with the clear designations of approved branded products in Column 3 at the sequences in question, makes manifest the Board's intent. This clear provision speaks for itself and proves that the Board, as an entity, made a reasoned and conscious decision to deem approved branded products in Column 3 of the Product Bid Sheets to be the goods intended for purchase in those instances where a Column 2 product description might suggest a different desire. Neither Mr. Papa's testimony nor any other evidence persuasively calls into question the reliability and credibility of the Reconciliation Clause as an accurate expression of the Board's intent. Thus, under the evidence presented, the following items are approved branded products that, as a matter of fact, the Board wanted to purchase: Nardone's 80MSA-100, Prestige 30215, Nardone's 100MA, and Leon's 28002. Moreover, if the Board decides that one or more of these approved branded products are not what it wants after all, it has the right, pursuant to Section 2.03 of the ITB (see Paragraph 17, supra), to arrange for the purchase and delivery of different products. The argument of the Board and Sysco that the Board's exercise of its right to add and delete items would constitute an impermissible material alteration of the bid specifications is, in the context of the present circumstances, plainly wrong in fact and illogical. To explain why this is so, let us stipulate that it would be arbitrary for the Board, say, to delete several items from each bidder's proposal because, for example, one or more bidders had mis-bid those items, and then to re-tabulate the bids to determine which bidder would now be the low bidder.9 Similarly, it would be arbitrary for the Board, under the guise of adding items, to designate as approved branded products certain non-conforming goods offered by a bidder as Distributor's Choices, thereby allowing a bid that otherwise would be disqualified to be considered responsive. As a final example, it would be arbitrary for the Board to delete an approved branded product from the product list and use such deletion as the basis for disqualifying a bidder that had quoted the now-deleted item. Each of these hypothetical situations involves a material change to the specifications on which the bidders based their proposals, which is not allowed, for good reason. It is a different kettle of fish, however, for the Board to add or delete items after making an award to the lowest responsive, responsible bidder in accordance with the terms and conditions of the ITB. When the bids are judged pursuant to the rules clearly spelled out in advance in the ITB — which would not be the case in the examples set forth in the immediately preceding paragraph — there is simply no change in the specifications, material or otherwise. In the instant case, therefore, if the Board awards the contract to School Food and decides that it does not want a hot dog pancake for Sequence No. 2010, then all it need do is delete Leon's 28002 from the product list and add the desired Leon's product or require the distributor to deliver one of the remaining approved branded products.10 Nothing about that course of action requires or effects a change in the bid specifications. To the contrary, all of the bidders were notified, upon entering this competition, that such post- award additions and deletions of product were possible. All of the bidders, moreover, could have quoted a price for the hot dog pancake, which was unambiguously designated as a conforming product. If the hot dog pancake were a less expensive item, then Sysco could have and should have bid on it. Put another way, if School Food secured a competitive advantage by bidding on the lower-priced approved branded product, it was a legitimate advantage under the plain rules of the contest — rules that applied equally to all. In a nutshell, the Board is in no reasonable danger of receiving a food product that it does not desire to purchase. The Board's preliminary decision to reject all bids is not supported by facts or logic. Indeed, the Board's analysis of the situation failed to account for the Reconciliation Clause — a clearly relevant factor. When the Reconciliation Clause is considered, together with the rest of the evidence in the record, the following become clear: The ITB's specifications were clear and unambiguous. The competitive playing field was level. The Board will obtain the goods that it intended to purchase. At bottom, the Board's decision here cannot be justified by any analysis that a reasonable person would use to reach a decision of similar importance. It is arbitrary.11
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board award the contract advertised in the subject ITB to the lowest responsive, responsible bidder, in accordance with the terms and conditions of the ITB. It is further recommended that the Board, pursuant to its own rules, return School Food’s protest bond and, in the Final Order, award School Food the costs Petitioner has incurred in prosecuting this matter. If a dispute arises concerning the amount of such costs, the matter may be referred to the Division of Administrative Hearings for further proceedings. DONE AND ENTERED this 31st day of May, 2001, in Tallahassee, Leon County, Florida. ___________________________________ JOHN G. VAN LANINGHAM 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 31st day of May, 2001.
The Issue Should discipline be imposed against Respondent's license as a certified general contractor in Florida for violations of Chapter 489, Florida Statutes (2004)?
Findings Of Fact Uncontested Facts: Petitioner is the state agency charged with regulating the practice of contracting pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. Respondent has been at all times material hereto, a Certified General Contractor in the State of Florida, having been issued license number CGC062689. Respondent's last known address of record is 1964 Beachside Court, Atlantic Beach, Florida 32233. At all times material hereto, Respondent was the primary qualifying agent for R.S. Rhodes Construction, Inc. ("RRC"), which did not possess a certificate of authority. On or about November 10, 2004, Respondent entered into a contract with Mario E. Canas ("Canas") to build a room addition to Canas' house located at 2528 Ligustrum Road, Jacksonville, Florida. The contract did not contain information regarding the Florida Homeowners' Construction Recovery Fund. The contracted price for the construction was $34,946.00, of which RRC accepted $25,967.40. On or about April 4, 2005, Duval County Building Department issued Permit No. B0518467, by and through Respondent's license, for the contracted construction. Construction commenced in or around April 2005, and continued until on or about August 19, 2005, at which time construction ceased before completion due to Respondent's license being revoked. On or about June 27, 2005, Respondent's Certified General Contractor's license was revoked by the Construction Industry Licensing Board for the Florida Department of Business and Profession Regulation. As a result of Respondent's failing to pay subcontractors, Canas was forced to pay an additional $2,850.00 to subcontractors to avoid liens being placed on his property. To date, Respondent has failed to return any money to Canas which Respondent received above the amount completed on the contract. In or around 2004, Respondent entered into an agreement with Escolastico Gumapas, Jr. ("Gumapas") to construct a front porch addition to Gumapas' house located at 12242 Antoni Court, Jacksonville, Florida. The contract did not contain information regarding the Florida Homeowners' Construction Recovery Fund. The contract price for the construction was $12,000.00, of which RRC accepted $2,000.00. Respondent failed to obtain a permit for the contracted construction due to the fact that the City requested a zoning variance before a permit would be issued. Respondent failed to apply for or obtain a zoning variance and, therefore, Respondent failed to commence construction. Additional Facts: Canas Transaction On November 10, 2004, Mario Eduardo Canas and Xiomara Canas, as owners, entered into a contract with Respondent d/b/a R.S. Rhodes Construction Company, Inc. (R.S. Rhodes), for work to be performed at 2028 Ligustrum Road, Jacksonville, Florida. On October 16, 2004, prior to signing the contract, Mr. Canas had paid R.S. Rhodes $2,000.00 to commence the project. The contract terms anticipated that the contractor would furnish needed materials and perform the work shown on the drawings and/or described in specifications in relation to the proposal for the work. The time of completion was referred to in Article 2 of the contract which states: The work to be performed under this Contract shall be commenced WITHIN TWO WEEKS AFTER PERMIT IS ISSUED, and shall be substantially completed WITHIN 16 WEEKS FROM PERMIT ISSUE DATE Time is of the essence. The following constitutes substantial commencement of work pursuant to this proposal and contract: (specify) Work begins first day of ground breaking. The overall contract price was $34,946.00. Article 4 established Progress Payments accordingly: Payment of the Contract Price Shall be paid in the manner Following: 1st Draw Due at singing of contract $6,989.20 2nd Draw Due After Foundation and columns $6,989.20 3rd Draw Due After Framing, Trusses, Roof Sheathing, Wall Sheathing, Doors, Electrical Rough-In, Dry-In $6,989.20 4th Draw Due After Roofing (Fiberglass) Insulation, Drywall, Interior Trim, Interior Paint $6,989.20 5th Draw Due Upon Substantial Completion. $6,989.20 Total Cost of Construction $34,946.00 Among the general provisions within Article 5 was the provision that stated: * * * 4. Contractor shall furnish Owner appropriate releases or waivers of lien for all work performed or materials provided at the time the next periodic payment shall be due (when applicable). * * * In relation to the Canas contract, it did not contain Respondent's registration or certification number used in the business of contracting. In April 2005 Respondent broke ground on the Canas project. Respondent quit working around June 2005. In addition to the $2,000.00 paid in October 2004, Mr. Canas made several more payments by check to R.S. Rhodes. On November 11, 2004, Mr. Canas paid R.S. Rhodes $6,989.20. On April 14, 2005, Mr. Canas paid R.S. Rhodes $6,989.20. On May 17, 2005, R.S. Rhodes was paid $6,989.20. On August 5, 2005, R.S. Rhodes was paid $3,000.00. All checks written were cashed. The May 17, 2005, payment was made prematurely, in that the work called for under the contract had not been performed prior to that payment. The August 5, 2005, $3,000.00 payment was made after Respondent came back from a trip and promised to return to the job. At that time the exterior of the home was being damaged where work was incomplete. The project was still not on schedule. In this connection, Respondent had not done the things necessary to be paid the fourth draw under the contract. On August 19, 2005, Respondent wrote Mr. Canas concerning the project stating: This letter is to inform you that due to conditions beyond the control of R.S. Rhodes Construction, Inc. R.S. Rhodes Construction Inc. is no longer doing business in the state of Florida and will not be able to complete your project under existing conditions. New conditions may be arranged as a resolution to this situation to complete your project at a quality level you would expect. At out last meeting on August 5, 2005, you were informed and verified the financial costs on your project. At that time you were made aware how the project had run into a deficit by approximately $3000.00 and consequently wrote R.S. Rhodes Construction a check to cover that deficit. All money given to R.S. Rhodes has not made any profit, as that was to come at the end of the project once completed. Valdan Electric, Inc., and A.J. Morel Plumbing, Inc. are requesting their first draw for the work already completed on your project. Their requests are legitimate and customary to the industry. Both are willing to continue on the project. I sincerely regret this situation and look forward to discussing and implementing a resolution that will complete our project in a reasonable manner. The Canas project was concluded in October 2006. Arthur Morel as president/owner of A.J. Morel Plumbing, Inc., filed a claim of lien in association with the Canas project. Contrary to the contract entered into with R.S. Rhodes, the unpaid amount upon which the claim of lien was based was $1,200.00. Mr. Canas had to pay the plumber that amount to satisfy the lien. Mr. Canas had to pay Valdan Electric, Inc., $1,000.00 in relation to a bill on the project that was not paid by R.S. Rhodes. Mr. Canas had to pay Andre McBride $650.00 to install windows in the project that were Respondent's obligation for installation under the contract. After the Respondent abandoned the project, Mr. Canas had to pay significant additional costs to conclude the project, in addition to the specific references to additional costs that have been described. Those miscellaneous expenses are reflected in Petitioner's Exhibit numbered A10. The certificate of occupancy for the property at 2528 Ligustrum Road was granted by the Department of Public Works of the City of Jacksonville of Florida, on October 27, 2006. On October 31, 2006, a certification of completion for various forms of activities under permits issued by that agency was provided. Gumapas Transaction: On November 5, 2004, Respondent came to the Gumapas home at 2242 Antoni Court, Jacksonville, Florida, to give an estimate on construction. He took measurements of the house and determined that the costs would be $12,000.00 for the work, to include materials. After considering the estimate, Mr. Gumapas agreed to allow Respondent to proceed with the project. On November 9, 2004, Respondent came back to the Gumapas property and there was a verbal agreement to proceed with the construction. Respondent said he needed $2,000.00 deposit to do paperwork and that Respondent would draw up a proposal that could be used as a receipt. On November 11, 2004, Mr. Gumapas paid Respondent the $2,000.00 deposit. Mr. Gumapas asked Respondent when Respondent could commence the project, Respondent replied that he would start on the first week of January 2005, and that the work would be completed in eight weeks. On November 15, 2004, Respondent and Escolatico Gumapas signed a proposal for construction at 2242 Antoni Court in Jacksonville, Florida. The proposal called for a $2,000.00 down payment in relation to initial drawings and planning to construct a porch on the front of the home. Other terms of the proposal were: Preliminary drawings will be done before the construction drawings are completed, so as to maintain construction costs within the estimated costs, as discussed in our previous meeting. That estimated costs of construction discussed was approximately $12,000.00, depending on the final construction drawings. After construction drawings are complete, a full proposal and cost estimate will then be attached to the contract and submitted for signature. Please sign and return with down payment to schedule commencement. Related to the Gumapas project, the proposal did not contain Respondent's registration or certification number used in the business of contracting. When Respondent failed to commence the project on time, Mr. Gumapas tried to call Respondent, but the call was not returned. Eventually, Mr. Gumapas spoke with Respondent. Respondent said that he was having trouble with the City of Jacksonville zoning department and that Respondent needed to take pictures of the area. Respondent told Mr. Gumapas that there had been changes in relation to the rules pertaining to a variance from the City of Jacksonville, needed to proceed with the project. The details of those changes were not explained by Respondent. After numerous attempts to reach the Respondent, Mr. Rhodes spoke with Respondent in late April 2005, or perhaps in early May 2005. Respondent told Mr. Gumapas that permits had been approved by the zoning department of the City of Jacksonville that needed to be picked up. On May 11, 2005, Mr. Gumapas executed an Agent's Letter of Authorization granting R.S. Rhodes, as represented by Respondent, authorization to act as Mr. Gumapas' agent to apply for a zoning variance with the City of Jacksonville. Respondent had not begun the work by mid-May 2005. Mr. Gumapas again tried to reach the Respondent by telephone. Mr. Gumapas then went to Respondent's home and left a message with a person at the home, to the effect that Mr. Gumapas needed to speak with Respondent about the porch at the Gumapas home. On June 5, 2005, Mr. Gumapas spoke with Respondent and told him that he did not wish Respondent to proceed with the construction based upon the delay. Respondent apologized. Mr. Gumapas asked for his money back. Respondent told Mr. Gumapas that he would pay him back $1,400.00 because Respondent had already done work. Respondent told Mr. Gumapas that he would get back with the owner with paperwork reflecting by invoice the work that had been done. A month passed and Respondent did not contact Mr. Gumapas. Mr. Gumapas called Respondent. On July 6, 2005, Respondent sent Mr. Gumapas an invoice. Later, Mr. Gumapas found out that the permit for the project had been denied by the City of Jacksonville. Mr. Gumapas tried to call Respondent about the permit denial. Respondent did not return his call. In August 2005, Mr. Gumapas went to talk to the City of Jacksonville building department about the permit denial. Someone there told Mr. Gumapas that R.S. Rhodes had never requested a permit to build the front porch, as evidenced in Petitioner's Exhibit A14. Mr. Gumapas continued to request the refund of his $2,000.00 deposit paid by a check that was cashed. In November 2005, Respondent returned $100.00 paid to R.S. Rhodes. Mr. Gumapas continued to contact Respondent to have the balance of the deposit returned. Eventually, Respondent paid more money for the refund of the deposit. The total amount paid was $500.00. Mr. Gumapas continues to contact Respondent to retrieve the balance of his deposit.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is indent RECOMMENDED: That a final order be entered finding Respondent in violation of those provisions reflected in Counts I through X of the Administrative Complaint; imposing a $1,000.00 administrative fine for violation of Count I; a $1,000.00 administrative fine for violation of Count II; a $1,500.00 administrative fine for violation of Count VI; a $500.00 administrative fine for violation of Count III; a $1,000.00 administrative fine for violation of Count VII; a $1,500.00 administrative fine for violation of Count IV; a $3,000.00 administrative fine for violation of Count IX; a $2,500.00 administrative fine for violation of Count V; a $5,000.00 administrative fine for violation of Count X; and a $2,500.00 administrative fine for violation of Count VIII; that Respondent be required to make restitution to Mr. Canas and Mr. Gumapas as a consequence of the violations; and that Respondent's certified general contractor certificate/license be revoked, to the extent that it is still in existence. DONE AND ENTERED this 14th day of August, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 2007. COPIES FURNISHED: Michael B. Golen, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard Steven Rhodes 1964 Beachside Court Atlantic Beach, Florida 32233 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Did Respondent discriminate against Petitioner in her employment because of a physical handicap?
Findings Of Fact Respondent, Double Envelope Corporation (Double Envelope), is engaged in the manufacturing and printing of envelopes and has a plant in Gainesville, Florida. (Tr. 252) Petitioner, Alicia Hart, became a full-time employee of Double Envelope in Gainesville, Florida in April 1987. (R. Ex. 18) Petitioner worked from April 1987 until July 14, 1989, and during most of that time she held the position of inspector/operator on the second shift in the Open-End Department. (Tr. 57) The Open-End Department manufactures small and large envelopes which are open on one end. (Tr. 198-99) In August 1987, Petitioner viewed a film strip on safety and inspecting of envelopes, and she signed a form reflecting that she had viewed the film and that she understood the importance of safety and production of quality merchandise. (Tr. 62, R. Ex. 14) The film strip presented by Double Envelope is one of several ways inspector/operators learn how to produce and inspect quality envelopes. (Tr. 197) Inspector/operators also learn about their jobs through employee orientation. A memorandum describing the procedures for producing quality envelopes is posted on each envelope making machine. (Tr. 197-98, R. Ex. 6) The memorandum on procedures for inspecting quality envelopes provides in pertinent part as follows: Checking Envelopes When envelope comes off your machine, check your perforations, seal gum, side gum and bottom gum, and envelope fold . . If any of the above checks does not meet your inspection, turn your machine off and ask (R. Ex. 6) your adjuster to check your machine. When running a job, do not close your cartons until you start your 2nd layer on a skid then inspect envelopes again. Petitioner understood that inspection of the envelopes was an important part of her job. (Tr. 60) During her employment, Petitioner worked most of the time in the small open-end (S.O.) department, and was very familiar with the small open-end machines. (Tr. 60) Mr. Durette was foreman of the Open-End Department and was Petitioner's supervisor throughout her employment at Double Envelope. (Tr. 197, 199) Mr. Durette taught the Petitioner the particulars of her job as an inspector/operator, showing her (a) how to fan through the stock that she put on the machine to make it easier for the machine to push envelopes through the machine; (b) how to fan through the envelopes after she picked them up and checked the quality of the envelopes, the gum, the seal, and the perforations; (c) how to pack the envelopes in cartons; and (d) how to pull out and replace any bad envelopes she might find. (Tr. 200) Throughout her employment, Petitioner had problems getting along with various coworkers and supervisors. (Tr. 200- 01, 249, R. Ex. 1-A) On several occasions before July 1988, Mr. Durette verbally counseled Petitioner concerning her attitude and failure to get along with other employees. (Tr. 201, 203) Mr. Durette gave Petitioner a written warning on July 7, 1988, for her failure to follow the instructions of an adjuster. An adjuster adjusted the machine to make quality envelopes. An adjuster was authorized to supervise inspector/operators. (Tr. 201-03, 106, R. Ex. 1-A) In this warning, Mr. Durette informed Petitioner that "next time this may result in a suspension." (R. Ex. 1-A) The July 1988 warning was issued around the time the Petitioner first reported problems with her hands at Double Envelope. The date she reported the problems she was having and the date the report were formalized are not certain. On February 24, 1989, Petitioner reported to work. Shortly thereafter, Petitioner told Mr. Durette that she needed time off from the job right away to take care of a garnishment problem. Mr. Durette informed Petitioner that he needed her to work and denied her permission to leave. Petitioner then requested to see Audrey Weeks, Production Coordination, about leaving work that day and Mr. Durette agreed. (Tr. 55, 67-68, 204-06) Petitioner saw Ms. Weeks that day and advised Ms. Weeks that she needed to go to the courthouse right away to handle a problem with a garnishment. Ms. Weeks advised her that she would have to see Mr. Durette regarding the matter. (Tr. 129) Immediately thereafter, Petitioner went to talk to Vice President and General Manger of the plant, Holt Vaughan. Petitioner asked Mr. Vaughan if she could leave work to go to the courthouse to handle the garnishment. Mr. Vaughan denied Petitioner permission to leave and told her she was needed to work. (Tr. 254, 55) After being told by her supervisor, the production supervisor, and general manager she could not have time off, Petitioner left the plant. Mr. Vaughan, seeing Petitioner leave a few minutes later, told her that if she left, she would have to suffer the consequences. (Tr. 255) Petitioner left the workplace and did not return that day. (Tr. 204) On February 27, 1989, Mr. Durette issued a written notice to Petitioner suspending her for one day, with pay, in accordance with Company policy. (Tr. 204, 255, R. Ex. 1-B) Petitioner was not on light duty status at the time of this suspension. (Tr. 250) After investigation, Plant Manager Wayne Secrist upheld the suspension and issued a typewritten memorandum to Petitioner on March 2, 1989, warning Petitioner that "any further problem whatsoever with Petitioner will result in her dismissal." (R. Ex. 1-C) On March 14, 1989, Mr. Durette issued a written message warning to Petitioner because she left a dirty gum table and paper around and on her machine the previous day. (Tr. 205- 06; R. Ex. 1-D) At the time the March 14, 1989, warning was issued, Petitioner was not on light duty status and had not filed a workers' compensation claim regarding her left wrist. (Tr. 207, 268-69, R. Ex. 24) Petitioner talked to Ms. Weeks around March 15, 1989, about her left wrist and filed a workers' compensation claim that day. (Tr. 268-69) Ms. Weeks referred Petitioner to the Company doctor, Dr. Evans, who in turn referred Petitioner to a hand specialist, Dr. Osborne, at the Ramadan Institute. (Tr. 48-49, 271) Dr. Evans placed Petitioner on light duty status in March 1989, and Dr. Osborne confirmed that status. (Tr. 50, 271- 72) Ms. Weeks, Mr. Vaughan and Mr. Secrist determined what Petitioner's light duty job would be based upon a description of light duty status from their insurance company and a telephone conversation between Ms. Weeks and Dr. Osborne. Petitioner was restricted on the amount of weight she would lift and the size of the envelopes she would handle. (Tr. 256-57, 272) Double Envelope assigned Petitioner to work on a S.O. machine which is slower in speed than other machines, and the lifting required is lighter. The work assigned was consistent with the doctor's limitations. (Tr. 109-10, 208, 256- 57, 272) Petitioner advised Ms. Weeks that she had discussed her situation with Dr. Osborne, and that she had described what she was doing to Dr. Osborne. The Petitioner advised Ms. Weeks that there was no problem with the machine she was running, and that her duties were consistent with the doctor's orders. (Tr. 272) Petitioner advised Mr. Vaughan that the work she was doing on light duty in March 1989 was consistent with what she thought the doctor had requested for light duty. (Tr. 256) Petitioner's condition in 1989 did not interfere with her carrying out the responsibilities of her light duty job and she was able to keep up on the machines. (Tr. 109-10) In April 1989 both Petitioner and another employee refused to work on their machines. (Tr. 215, 256, 264) Mr. Vaughan and Ms. Weeks met with Petitioner on the day she refused to continue working on her machine. Mr. Vaughan asked if Petitioner was having a problem due to her injury. The Petitioner advised Mr. Vaughan that the work she had been assigned was consistent with her restrictions, and she was not having a problem. Mr. Vaughan replied that she should either continue to do this work or see her doctor to get a written statement that she was not able to perform the work for that reflected new duties. Petitioner returned to work. (Tr. 256, 265) On April 5, 1989, Mr. Durette gave Petitioner a written warning advising her that a number of envelopes which she had produced on April 4, 1989, were stuck together in cartons with her signature. (Tr. 208, 212, R. Ex. 1-E) On April 5, 1989, Mr. Durette discovered additional envelopes which she had packed and which were sticking together. Mr. Durette gave her another written warning on April 5, 1989, on this deficiency. (Tr. 211, 213-14, R. Ex. 1-F) Mr. Durette was able to determine that Petitioner had packed the defective envelopes from her signature on the cartons, the job numbers on her time sheet, and the department log with matching job numbers. (Tr. 209, 213) Operator/inspectors were suppose to shut down their machines if their inspections revealed a problem and call an adjuster. The adjuster would fix the machine and the operator would restart the machine. On several occasions prior to May 1, 1989, Mr. Durette talked to Petitioner about her failure to keep her machine running, and her failure to immediately report jams. (Tr. 214-15) On May 1, 1989, Mr. Durette gave a written warning to Petitioner concerning her poor attitude and low production. (Tr. 214, R. Ex. 1-G) On May 2, 1989, Petitioner was examined by Dr. Osborne and she brought back to Ms. Weeks a note from Dr. Osborne releasing her to return to work performing her normal duties with no restrictions. (Tr. 38, 111, R. Ex. 13-B) Several employees complained to Mr. Durette at various times that Petitioner was not coming back from breaks on time and that she was taking more time than was allotted. (Tr. 217) As a result of these complaint, Mr. Durette counseled the Petitioner about returning from breaks and lunch on time. He still received complaints about Petitioner's lateness. (Tr. 218) On May 12, 1989, Petitioner left for her lunch break at approximately 7:00 p.m. and called in sometime during her 30 minute break to advise that she had car problems and would be a little late. Petitioner came back into the plant at 7:45 p.m., but she indicated on her time sheet that she returned at 7:30 p.m. Petitioner was warned by her supervisor about returning to work on time and reporting her time accurately. (Tr. 87, 218, R. Ex. 3) From May 8, 1989, through the date of her discharge, Petitioner did not complain that she was having any problems with her hand or that her wrist was locking up. (Tr. 234, 273-74) On June 13, 1989, Mr. Durette issued a written message warning to Petitioner with regard to her failing to attend four consecutive safety meetings. (Tr. 219, R. Ex. 1-J) On June 19, 1989, at the end of her shift, Petitioner told Mr. Durette she could not come in the following day because she had real estate business. Mr. Durette advised her that she could not take the day off and that he needed her to work and she would have to be there. Petitioner asked if she could make up the time, work another shift, or make up the production some other way, but was denied the time off. (Tr. 94, 222) On June 20, 1989, Petitioner took the day off without calling in, despite Mr. Durette's instructions on the previous day. (Tr. 222) On June 23,1989, Mr. Durette issued a written notice of disciplinary action, warning Petitioner concerning her insubordination and misconduct in failing to show up for work on June 20, 1989. The notice of disciplinary action warned her that this was a final warning and any further violations "will result in your dismissal from Double Envelope." (Tr. 221, R. Ex. 1-K) On July 12, 1989, Petitioner worked from 3:30 p.m. until 11:30 p.m. on an S.O. machine manufacturing open-end photo processing envelopes for Jack Eckerd Corporation on job number 3327295. (Tr. 96-97, R. Ex. 7) The envelopes being manufactured have a flap at the top of the envelope, and a perforation across the end of the flap closure which was a receipt. (Tr. 60) Petitioner's job responsibilities on this job included inspecting the envelopes to ensure that they were satisfactory by looking carefully through the envelopes for the perforation and the "gum line", the area where the gum is placed to seal the flap. (Tr. 165-66, 228). Petitioner was supposed to inspect the envelopes and, as stated above, shut her machine done and notify her supervisor or adjuster immediately if she found any problems. (R. Ex. 6, Tr. 199). When inspecting the envelopes, Petitioner knew that she should pick up a stack of envelopes, thumb through the entire stack making a visual inspection, and look for anything that was out of place or odd. (Tr. 62-63). On July 12, 1989, Petitioner had some problems twice during her shift with her machine jamming, but she did not notice any problems with the perforation of envelopes. The machine was adjusted and restarted. (Tr. 105, 233). On the morning of July 13, 1989, adjusters Charles Wood and Bill Harmon were notified by a first shift employee that there were envelopes from the night before that had not been perforated. (Tr. 143, 167-68). Charles Wood and Bill Harmon then looked back through envelopes completed the prior night on the second shift to determine if there were any bad envelopes that had not been discovered. They found that approximately 2,000 envelopes packed the prior evening were defective in that they had no perforation. (Tr. 14, 168, 224) Messrs. Wood, Harmon and Durette determined from the box numbers and machine logs, and Petitioner's initials on the cartons, that on July 12, 1989, Petitioner had packed the 2,000 envelopes with defective perforations in four cartons. (Tr. 148, 167-68, 224). Petitioner acknowledged she had worked on the boxes of envelopes which contained the defective envelopes. (Tr. 98) Petitioner had not discovered and reported the 2,000 envelopes without proper perforations before leaving her shift on July 12, 1989. Mr. Durette, with the approval of Ms. Weeks and Mr. Vaughan, determined to terminate Petitioner on the basis of her failure to follow instructions concerning inspection of envelopes and her poor work history over the past months. (Tr. 223, 259, 274, R. Ex. 2) At the time of terminating Petitioner, the Company officials involved in the termination decision were not aware that Petitioner had any permanent or temporary disability. The Petitioner had been returned to regular duty. (Tr. 234, 259, 274) No medical evidence exists in the record to establish that Petitioner has ever been permanently disabled. (Tr. 234, 259, 276) No evidence, medical or otherwise, exists in the record to show that Petitioner was permanently or temporarily disabled when she was discharged. (Tr. 234, 259, 274) Petitioner never submitted any information to Double Envelope from the time she returned to normal duties until the time of her termination which would indicate that she was permanently or temporarily disabled. (Tr. 234, 259, 274). Disability ratings were not issued on Petitioner's right hand until after she was terminated from Double Envelope. (Tr. 112-13) According to Petitioner's understanding, she was not diagnosed as having permanent impairment to her left wrist until after her termination from employment at Double Envelope. (Tr. 112-13) Shortly after her termination from Double Envelope, Petitioner understood from Ramandan Hand Institute that she should not return to the type of work she had been doing at Double Envelope. (Tr. 109) As a result, Petitioner has never applied for employment with an envelope manufacturing company since her termination on July 14, 1989. (Tr. 109) On September 5, 1989, Petitioner filed a timely charge of discrimination with the Florida Commission on Human Relations (FCHR). This charge was signed by Petitioner under oath and, according to Petitioner, was accurate at the time. (Tr. 114, R. Ex 18) In her charge of discrimination, Petitioner referred to her handicap as "permanent damage to my left wrist." Petitioner did not mention her right hand or thumb anywhere in her charge of discrimination. (Tr. 115, R. Ex. 18) In her charge of discrimination, Petitioner asserted under oath that "Ms. Vicki Williams, on July 14, 1989, also wasted four boxes of envelopes on job no. 3327295, but was not reprimanded or terminated." (R. Ex. 18) Ms. Williams testified, without any rebuttal, that she did not run four boxes of defective envelopes on that day or any other day. (Tr. 187) Petitioner stated that in 1989 Mr. Durette allegedly referred to Petitioner and Deborah Turbyfield as "goddam cripples' or "goddam invalids." Mr. Durette denied making such a statement. (Tr. 116-17, 190-91, 234) Double Envelope has several employees who have a physical disability of some type including: John Durette (50% disability in left thumb) Doug Milligan (tips of two fingers missing) Betty Martin (cut finger tip off twice) Len Walton (1 leg; blind in one eye) (Tr. 235, 275) Double Envelope has terminated at least three other employees (Jean Robbins, Gail Montgomery, Ellen Vaughan) in recent years for running bad envelopes, where such other employees did not have any handicap or physical disability of which Double Envelope was aware. (Tr. 275) After investigating this matter, the Interim Executive Director of the FCHR issued a Notice of Determination on October 29, 1990, finding that "there is no reasonable cause to believe that an unlawful employment practice has occurred." (R. Ex. 15) After Petitioner filed a Request for Redetermination and arguments were advanced by both parties, the Interim Executive Director of the FCHR concluded that the "initial determination properly found no reasonable cause to believe that an unlawful employment practice occurred." (R. Ex. 16)
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence contained in the record and the demeanor and credibility of the witnesses, it is RECOMMENDED Petitioner's Petition of Relief from Unlawful Employment Practice should be dismissed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of February 1992. STEPHEN F. DEAN 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 26th day of February 1992. APPENDIX The Respondent filed a Proposed Recommended Order which contained proposed findings of fact. These proposed findings were read and considered. The following states which findings were adopted, and which were rejected and why: Paragraphs 1-16 Adopted. Paragraph 17 Rejected. Contrary to the most credible evidence. Paragraph 18-20 Adopted. Paragraph 21 Rejected. Irrelevant. Paragraph 22-26 Adopted. Paragraph 27 Although true, the warning in Paragraph 28 is the important thing. Paragraph 28-40 Adopted. Paragraph 41 Rewritten. Paragraph 42-54 Adopted. Paragraph 55 Facts added to Paragraph 54. Paragraph 56-79 Adopted. Paragraph 80 Rejected. Contrary to the most credible evidence. Paragraph 81-84 Adopted. COPIES FURNISHED: Alicia A. Hart, pro se 1037 East 222nd Street Bronx, New York 10469 Robert G. Riegel, Jr., Esquire Coffman, Coleman, Andrews & Grogan, P.A. 2065 Herschel Street Jacksonville, Florida 32203 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
Findings Of Fact On May 31, 1990, G.T. Williams applied to the Department of Environmental Regulation (Department) for an air pollution source permit. He sought the permit in order to have authorization to construct a biological waste incinerator in Gadsden County, Florida. The permit application was subsequently amended to provide that the incinerator would be constructed as part of the expansion of an existing biomedical incineration facility in Leon County, Florida. On September 7, 1990, the Department issued its Order of Intent to Issue the air pollution source permit to Mr. Williams. The Order of Intent to Issue provides, in relevant part, as follows: Pursuant to Section 403.815, Florida Statues, and DER Rule 17-103.150, F.A.C., you (the applicant) are required to publish at your own expense the enclosed Notice of Intent to Issue Permit. The notice shall be published one time only within 30 days, in the legal ad section of a newspaper of general circulation in the area affected. For the purpose of this rule, "publication in a newspaper of general circulation in the area affected" means; publi- cation in a newspaper meeting the requirements of Section 50.011 and 50.031, F.S., in the county where the activity is to take place. The applicant shall provide proof of publica- tion to the Department, at the Northwest District, 160 Governmental Center, Pensacola, Florida 32501-5794 within seven days of publication. Failure to publish the notice and provide proof of publication within the allotted time may result in the denial of the permit. (emphasis added). Prior to publication of the Intent to Issue, the Department did not advise the Petitioner which newspaper to publish the notice in and, in fact, neither Chapter 403 nor any of the provisions of Title 17, Florida Administrative Code, grant the Department authority to designate a newspaper for publication use. On October 4, 1990, Bio-Tech published the Department's Notice of Intent to Issue Permit in the Leon County News. On October 17, 1990, the Department approved transfer of the permit from G.T. Williams to Bio-Tech. The Leon County News is a weekly newspaper. It has been continuously published in Leon County, Florida, since 1980. At least 25 percent of the words in the Leon County News are in the English language and it is entered as second class mail at the Woodville Post Office in Leon County, Florida. The Leon County News is available for purchase by the general public by mail subscription. It is also available for sale to the general public at newspaper racks located at the following locations: Gary's IGA, 363 Woodville Highway, Woodville, Florida; Publix Super Market Store #113, 1719 Apalachee Parkway, Tallahassee, Florida; and Publix Super Market Store #2150, 1940 North Monroe Street, Tallahassee, Florida. The general public is encouraged to purchase legal and other advertisements and notices in the Leon County News, and the newspaper regularly contains help wanted ads, ads for services, business advertising, real estate ads, and public service ads. The Leon County News also contains national, state, and local news stories and features as well as nationally syndicated columns of interest to the general public. Its published matter is not characterized by narrowly focused published materials of interest to only an isolated trade group, profession or narrow segment of the public. A number of state and local government agencies, including the Department of Highway Safety and Motor Vehicles, the Department of State, the Department of Agriculture, Division of Forestry, the Department of Professional Regulation, and the Leon County Circuit Court publish statutorily-mandated legal notices in the Leon County News. A review of the editions of the Leon County News from October 4, 1990 (the publication date at issue), through the hearing date indicates that these legal notices include notices of complaints filed against professional licenses, constructive service of process, notices of administration of estates, notices of foreclosure sales, notices of petitions for forfeiture, notices of claims of lien, and notices of fictitious name registrations. Many of the notices published by the courts and these governmental agencies involve notices of actions pending which involve potential loss or forfeiture of valuable property or legal rights. Charlotte James is the Secretary of the Bio-Tech Corporation. On October 4, 1990, she prepared a letter transmitting a copy of the notarized proof of publication of the Notice of Intent to Issue Permit, as well as an October 3, 1990, newspaper article concerning the facility to the Department. This was in order to respond to the admonition contained in the Notice of Intent to Issue Permit directing that proof of publication of the Notice of Intent to Issue be provided the Department within seven days of publication. The envelope containing that transmittal letter, proof of publication, and the accompanying newspaper article was properly addressed and posted and was mailed to Mr. Jack Preece of the Department's Northwest District Office from the U.S. Post Office on Woodward Avenue, located near Florida State University, in Tallahassee, Florida. Ms. James took the letter to that post office, hand delivered it to the postal clerk, watched the postal clerk cancel the letter and place it in a receptacle for mailing to the Department's Northwest District office and Mr. Jack Preece on October 4, 1990. It subsequently developed that the Department's personnel could not locate the proof of publication in the permitting file in the Northwest District office in Pensacola, which had been mailed by Bio-Tech on October 4, 1990. The Department's Office of General Counsel in Tallahassee did receive a copy of the proof of publication sometime before October 25, 1990. The Department's personnel have been unable to determine when the Office of General Counsel actually received the proof of publication. In any event, the Department's Northwest District office received a copy of the proof of publication by telefacsimile on October 25, 1990, prior to the issuance of the Notice of Permit Denial. Thereafter, on the next day, October 26, 1990, the Department issued its Notice of Permit Denial to Bio-Tech on the basis that Bio-Tech allegedly failed to publish the notice of the original intent to grant the permit "in a newspaper of general circulation in the area affected;" and that the applicant failed to provide proof of publication to the Department within seven days of that publication. On November 29, 1990, Bio-Tech filed its petition for formal administrative hearing alleging that the Leon County News is a newspaper of general circulation in the area affected and that proof of publication of the Notice of Intent to Issue was timely provided the Department. Alternatively, Bio-Tech pleads that failure to provide the Department with a copy of the proof of publication within seven days of the date of publication is not a valid basis for permit denial but rather is harmless error.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleading and arguments of the parties it is, therefore, recommended that a final order be entered by the Department of Environmental Regulation granting the application of Bio-Tech Tracking Systems, Inc., for an air pollution source permit. RECOMMENDED in Tallahassee, Leon County, Florida, this 3rd day of April 1991. P. MICHAEL RUFF 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 3rd day of April 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7760 Petitioner's proposed findings of fact: 1-17. Accepted. Respondent's proposed findings of fact: 1-8. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and not proved by the preponderant weight of the evidence. The evidence does not show that the publication was not received by the Department before October 25, 1990, even if one accepts that it did not reach the appropriate office until that date. Accepted, although that does not establish that that was the only copy of the proof of publication ever received by the Department's Northwest District office. Accepted, but immaterial to the findings of fact and conclusions of law made on the proof of publication issue herein. Accepted and, as concluded herein, the proper posting of the proof of publication constituted the provision of proof of publication to the Northwest District office. Accepted. Accepted, but not itself materially dispositive of the issues in dispute. 15-18. Accepted. 19-21. Accepted. Accepted, but immaterial and irrelevant. Accepted, but immaterial and irrelevant. Accepted, but not in itself materially dispositive of the issues in dispute for the reasons asserted in the above findings of fact and conclusions of law. Accepted, but not in itself materially dispositive of the issues in dispute for the reasons asserted in the above findings of fact and conclusions of law. Accepted in terms of this indication of what the Department's Notice of Intended Agency Action was which resulted in the petition which engendered this proceeding. But not in the sense that that notice of intended agency action was based upon found facts in this proceeding. This is a de novo proceeding and no facts were found until the issuance of this recommended order. Accepted. COPIES FURNISHED: William E. Williams, Esquire Robert D. Fingar, Esquire Huey, Guilday, Kursteiner and Tucker, P.A. 106 East College Avenue Suite 900 Post Office Box 1794 Tallahassee, Florida 32302 Michael P. Donaldson, Esquire Carol Forthman, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Room 654 Tallahassee, Florida 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue to be resolved in this proceeding concerns whether the Respondent, Department of Environmental Regulation ("Department", "DER"), is liable to the Petitioner for attorney's fees and costs incurred in an earlier administrative proceeding, in accordance with Section 57.111, Florida Statutes. Specifically, the issue concerns whether the Department's action in denying a permit in that case, under circumstances delineated herein, was "substantially justified".
Findings Of Fact G. T. Williams, as the President of Atlantic and Pacific Medical Waste, Inc., applied to the Department for authorization to construct a biological waste incinerator in Gadsden County, Florida, on May 31, 1990. Subsequently, the proposed location of the incinerator was changed to 1109 Orange Avenue, Tallahassee, Leon County, Florida. After reviewing and considering the application, the Department issued its Order of Intent to Issue the air pollution source permit applied for to Mr. Williams on September 7, 1990. The Order of Intent to Issue provided, in relevant part: Pursuant to Section 403.815, Florida Statutes, and DER Rule 17-103.150, F.A.C., you (the applicant) are required to publish at your own expense the enclosed notice of intent to issue permit. The notice shall be published one time only within thirty (30) days, in the legal ad section of a newspaper of general circulation in the area affected. For the purpose of this rule, `publication in a newspaper of general circulation in the area affected' means publication in a newspaper meeting the requirements of Section 50.011 and 50.031, F.S., in the county where the activity is to take place. The applicant shall provide proof of publication to the department, at the northwest district, 160 Governmental Center, Pensacola, Florida 32501-5794 within seven (7) days of publication. Failure to publish the notice and provide proof of publication within the allotted time may result in the denial of the permit. The Petitioner published the notice of intent to issue permit on October 4, 1990 in a newspaper known as the Leon County News. On October 17, 1990, the Department approved the transfer of the permit to the Petitioner from Mr. Williams. On October 26, 1990, the Department issued a Notice of Permit Denial to the Petitioner on the ground that the applicant had failed to publish the Notice of Intent to Issue the permit in a "newspaper of general circulation in the area affected" and that the Petitioner had failed to provide proof of publication to the Department on a timely basis within seven (7) days of publication. On November 29, 1990, the Petitioner filed its petition for formal administrative hearing alleging that the Leon County News is a "newspaper of general circulation in the area affected" and that proof of publication was timely provided the Department. Alternatively, the Petitioner argued that failure to provide a copy of proof of publication to DER within seven (7) days of publication is not an independent basis for permit denial. The Petitioner asserted that the publication in the Leon County News constituted publication in a newspaper of general circulation because the Leon County News met the various criteria of Section 50.011, Florida Statutes, used for determining whether publication has occurred in a newspaper of general circulation. The Department took the position that the Leon County News is not a "newspaper of general circulation in the area affected" because the newspaper only prints approximately 100 newspapers per week and only sells them at four (4) newspaper racks in Leon County, Florida, as well as offering the newspaper for sale through mail subscription. The Department argued that the Leon County News cannot be a newspaper of general circulation because it interpreted the language in Section 50.011, Florida Statutes, requiring that such a newspaper be "for sale to the public generally" as meaning for sale to the public "widely", which interpretation, the Department believed necessitated an inquiry into the adequacy of circulation or in other words, numbers of subscribers, in the "area affected", that is, Leon County. Since the Leon County News only printed approximately 100 newspapers per week for sale at only four (4) locations, plus by mail subscription, the Department, in issuing its initial agency action, and prior to the Recommended Order entered in that proceeding, argued that the Leon County News could not be a newspaper of general circulation because it was not "for sale to the public generally", as required by Section 50.011, Florida Statutes, because of the manner in which the Department interpreted the word "generally" in terms of sale to the public. In arriving at this interpretation of the statutes and rule at issue, the Department was following a policy that the notification process and its statutes and rules should be followed in a spirit of liberality, so as to insure that adequate notice is provided to the public concerning projects which may affect the interests of the general public. Consequently, the Department interpreted its publication of notice requirements and has consistently done so in the past in a manner designed to maximize actual notice to members of the public affected by projects such as the one involved in this case. Thus, for these reasons, the Department opined in the initial stages of this proceeding, prior to hearing, that the Leon County News is a newspaper of limited circulation within the affected area, Leon County, and is not generally known or available to the general public. It believed that the notice published in the Leon County News did not give affected members of the general public notice of the proposed agency action at issue. Consequently, it issued the notice of permit denial referenced above. The cause came on for hearing before the undersigned Hearing Officer on February 14, 1991. Following that hearing, a Recommended Order was issued determining that the Leon County News met each of the six (6) criteria in Section 50.011, Florida Statutes: It is published weekly; at least 25% of its words are in English; it is qualified to be entered as second-class mail at a post office in the county where published; it is for sale to the general public; it is available to the public for publication of official or other notices; and it contains information of interest to the residents of the county where published or the general public (as opposed to a narrow special interest group). The Hearing Officer also found that the Leon County News meets the additional criteria for a "newspaper of general circulation" imposed by Section 50.031, Florida Statutes: The notice was published for the prescribed period of time; and the newspaper was in existence for at least one year at the time of publication of the notice. The Hearing Officer also found that, pursuant to the Department's September 7, 1990 order, as well as Rule 17-103.150, Florida Administrative Code, the term "in the area affected" has been defined by the Department to mean "the county where the activity is to take place". Accordingly, the Hearing Officer found that the Leon County News met the statutory criteria of Sections 50.011 and 50.031, Florida Statutes, in Leon County, and consequently, is a "newspaper of general circulation in the area affected" within the meaning of the order of intent to issue promulgated by the Department. The Hearing Officer rejected the Department's position that the language "for sale to the public generally" in Section 50.011, Florida Statutes, requires an inquiry into the number of newspapers sold in a given locality or county in order to determine if the newspaper is circulated widely enough. Instead, the Hearing Officer concluded that the plain meaning of that statute is that the newspaper be available for sale to the general public, as opposed to being limited for sale only to a narrow, particular interest group. The Hearing Officer found that the Leon County News satisfies this criterion. The Hearing Officer also found that the express language of Sections 50.011 and 50.031, Florida Statutes, preempted the Department's attempt to impose additional criteria on "newspapers of general circulation" relating to adequacy of circulation. Alternatively, the Hearing Officer found that the Department's Order of Intent to Issue and Rule 17-103.150(1)(c), Florida Administrative Code, state that the term "newspaper of general circulation" is interpreted to have the same meaning as that term in Sections 50.011 and 50.031, Florida Statutes, and is, therefore, governed by the statutory criteria, which do not contain a requirement relating to numerical circulation. Concerning the issue of whether the Petitioner made timely proof of publication to DER, the Hearing Officer found that the Petitioner had properly and timely addressed, stamped and mailed the proof of publication to the Department and that the Department, therefore, is presumed by law to have received it. Although the Department argued that it did not receive the proof of publication until October 25, 1990, after the seven (7) days had elapsed, but before the notice of permit denial, the Department was unable to prove at hearing that, in fact, it did not receive the proof of publication in a timely fashion. Moreover, the Hearing Officer also concluded that an applicant's failure to timely provide proof of publication cannot, in accordance with Rule 17-103.150(4) (6), Florida Administrative Code, serve as an independent basis for permit denial but merely can serve to delay issuance of a permit until the proof of publication requirement is accomplished. Consequently, the Hearing Officer ultimately recommended issuance of the permit. The Department filed exceptions to the Recommended Order arguing that the language "for sale to the public generally" excludes the Leon County News from the definition of "newspaper of general circulation" in Section 50.011, Florida Statutes, because of the newspaper's limited numerical distribution. The Final Order rejected that exception, finding that the consideration of the numerical sufficiency of a newspaper circulation is not authorized by Sections 50.011 and 50.031, Florida Statutes, or by Department rule or policy interpreting those statutes. Thus, the Department's position to the effect that the Leon County News, with only one copy for sale for each 1,301 residents of Leon County, did not meet the requirements of Section 50.011, Florida Statutes, that it be for sale to the public generally, was rejected. On June 11, 1991, the Petitioner filed its petition for attorney's fees and costs, pursuant to Section 57.111, Florida Statutes. Accompanying that petition were itemized statements of fees and costs and supporting affidavits establishing that the fees and costs incurred in the underlying action exceed $15,000.00. The Department does not dispute the reasonableness of the amount of fees and costs nor does it dispute any of the other statutory standards for an award of fees and costs enumerated in Section 57.111, Florida Statutes, except for the criterion concerning substantial justification for the agency's position. The Department maintains in contesting the proposed award of fees and costs, that its action in issuing the notice of permit denial was "substantially justified".
The Issue The issue in this case is whether Respondent's intended award of a contract to Intervenor pursuant to Invitation to Negotiate No. 2011-18 is contrary to Respondent's governing statutes, Respondent's rules and policies, and the specification of the solicitation.
Findings Of Fact The Department issued the ITN, Revised Standards Tutorial, on December 17, 2010. The purpose of the ITN was to contract with one or more vendors "to provide assistance with the state's need to support teachers in the implementation, and students in the mastery of the English Language Arts and Mathematics Common Core State Standards (CCSS) and the Next Generation Sunshine State Science and Civics Standards." The Department sought to purchase, among other things, the following: [T]he development of a new robust web-based system that includes but is not limited to interactive adaptive student practice lessons for each of the Common Core State Standards and Next Generation Sunshine State Science and Social Studies Standards (Science grades 5, 8, Biology 1 and Civics) to address individual student needs and provide a means of individual progress monitoring for students, parents, and teachers; secure mini-interim assessment checks for students; student performance reports for teachers on the mini-interim assessment checks; and programming for parent, student, and teacher log-ins that provide different levels of access to support materials. The ITN required that the system developed would be the property of the Department during and after the contract and stated: All equipment, software and licenses, programming code and language, documentation and content (both instructional and informative) that is developed as part of this project will be the property of the Department during and after the grant period. All such items must be completely transferred to the Department prior to the end of the contract period, including any licenses to the extent that they have not expired. Any proprietary products owned by the Contractor must provide for a perpetual royalty free and non-exclusive license for use by the Department. Vendors were given the opportunity to ask technical questions about the ITN, and the Department posted the questions and the Department's responses on the vendor bid system on December 29, 2010. One vendor submitted the following question: "Will the DOE require a perpetual license to continued use of any content (assessments or lessons) after the end of the four- year contract if those materials are the vendor's proprietary, pre-existing materials that are provided for use in the Standards Tutorial?" The Department gave the following written response, which was included in Addendum No. 1 to the ITN. "All content and applications developed will be the property of the Department. All content, application code and documentation must be turned over to the Department upon deliverable completion." It is clear from the ITN and the first addendum that the Department required the materials developed pursuant to the contract to be the property of the Department. One of the main goals of the Department in issuing the ITN was to have a product that could be sustained after the contract period. When the ITN was developed, the Department was not aware of the variety of arrangements that might be possible in order to meet all of the Department's goals. However, the Department made the choice to go with ownership of the products developed for the contract and a perpetual, royalty-free non- exclusive license for products that were owned by the contractor and provided pursuant to the contract, but were not developed as a result of the contract. The Department could have worded the ITN so that the vendors would provide a solution for the sustainability component of the contract, but it did not do so. The method chosen by the Department to meet its sustainability needs became a requirement of the ITN. Sustainability was a material aspect of the contract, and, because the Department had specified the method to achieve sustainability in the ITN with no leeway for the vendors to propose a different methodology, the ownership of products developed pursuant to the contract became a material requirement of the ITN. Nothing prevented the Department from negotiating different methods of sustainability during negotiation, but in order to determine whether a vendor was responsive, the Department was bound by the ITN, no matter whether it inadequately reflected what the Department was seeking. The remedy to the flawed ITN would have been to change the specifications prior to the replies being submitted. The Department argues in its Proposed Recommended Order that the ITN did not call for ownership of the content or the software. This argument is disingenuous in light of the testimony of the Department's representative that the ITN contemplated complete ownership of the products developed pursuant to the contract. Section 7.1 of the ITN required that the vendor include completion dates for deliverables in its Reply and provided a list of deliverables for each year of the contract. The ITN stated that the Deliverable Completion date contained in the ITN was for "informational purposes only." The actual completion dates were to be negotiated. Section 3 of the ITN provides: "Award will be made to the responsible and responsive vendor that the Department determines will provide the best value to the state." Section 3.3. of the ITN defines a responsive bid as "a Reply submitted by a responsive and responsible vendor which conforms in all material respects to the solicitation." The term "Reply" is defined by the ITN as "the complete response of the Respondent[1/] to the ITN, including properly completed forms and supporting documentation." Section 4.11 of the ITN provides: As in the best interest of the state, the right is reserved to award based on all or none thereof, to a responsive, responsible Respondent. As in the best interest of the state, the right is reserved to reject any and/or all Replies or to waive any minor irregularity in replies received. Conditions which may cause rejection of Replies include, without limitation, evidence of collusion among Respondents, obvious lack of experience or expertise to perform the required work, failure to perform, or meet financial obligations on previous contracts. Section 5.2.2 of the ITN is entitled Mandatory Submittal Documents and requires that the vendors submit, among other things, a transmittal with their replies which contains the following: a statement certifying that the person signing the Reply is authorized to represent the Respondent and bind the Respondent relative to all matters contained in the Respondent's Reply the company's federal tax identification number a statement certifying that the Respondent has read, understands, comply [sic] and agrees to all provision of this ITN a statement that the Respondent is authorized to conduct business in Florida in accordance with the provisions of Chapter 607, F.S. In lieu of such statement, the Respondent alternatively must certify that authorization to do business in Florida will be secured prior to the award of the contract a statement certifying that the Respondent is registered on the MyFloridaMarketPlace website in accordance with the provisions by the state of Florida. In lieu of such statement, the Respondent must alternatively certify that registration authorization will be completed prior to the award of the contract. Once the replies were submitted, the ITN required that the replies be reviewed to determine if they met the mandatory submittal requirements. If it was determined that a reply met the mandatory submittal requirements, the reply would be evaluated by an evaluation committee. Section 8 of the ITN sets out the evaluation and negotiation process and provides: 8.1 REPLY EVALUATION AND NEGOTIATION PROCESS Using the evaluation criteria specified below, in accordance with Section 287.057, F.S., the Department shall evaluate and rank responsive Replies and, at the Department's sole discretion, proceed to negotiate with one or more Respondent(s) . . . : Section 8.2 of the ITN provides: The ITN is designed to assess the most points to the Respondent presenting the best solution for the required services. The Evaluation Committee will consider only those Replies, which are determined to meet the mandatory requirement review (See SECTION 5.2.2) first completed by the Department's Bureau of Contracts, Grants and Procurement Management Services. Each member of the Evaluation Committee will be provided a copy of each Technical Reply. Replies will be evaluated on the criteria established in the section above entitled "Criteria for Evaluation" in order to assure that Replies are uniformly rated. The Evaluation Committee will assign points, utilizing the technical evaluation criteria identified herein and the Procurement Office will complete a technical summary. Oral presentations (or seeking clarification) will be evaluated by the committee based on the criteria established in SECTION 5.2.1 above. During this stage Respondents will be asked to provide any clarifications needed by the evaluation committee to assist in evaluating their Reply. Information received in this stage will be added to the Respondent's Reply and evaluated as a part of the appropriate section above. Section 8.1 of the ITN provides that the evaluation of the prices would be done through a comparison of the prices submitted in the replies: "The maximum points will be awarded to the lowest acceptable Price Reply. Replies with higher costs will receive the fraction of the maximum points proportional to the ratio of the lowest Price Reply to the higher Price Reply." Section 8.1(E) of the ITN provides: In submitting a Reply Respondent agrees to be bound to the terms of this ITN, however, the Department reserves the right to negotiate different terms and related price adjustments if the Department determines that it is in the state's best interest to do so. Four vendors, including Infinity and Microsoft, submitted replies to the ITN by the deadline of January 10, 2011. Microsoft's Reply stated: The information contained in this document [the reply] (a) represents Microsoft's current statement of the features, functions, and capabilities of the products and services described herein, which is subject to change at any time without notice to you, (b) is for your internal evaluation purposes only and should not be interpreted as a binding offer or commitment on the part of Microsoft to provide any product or service described herein; and (c) constitutes Microsoft trade secret information and may not be disclosed to any third party. Any procurement that may result from this information is subject to negotiation and execution of a definitive agreement between [sic] and its chosen authorized Microsoft reseller incorporating applicable Microsoft commercial terms. Microsoft does not guarantee the accuracy of any information presented and assumes no liability arising from your use of the information. MICROSOFT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN THIS DOCUMENT. The transmittal letter submitted by Microsoft stated: "[T]his letter certifies that Microsoft has read and understands the provisions of the ITN." The transmittal letter did not meet the requirements of the ITN that Microsoft certify that it complies and agrees with all provisions of the ITN. The reply submitted by Microsoft did not provide that all materials developed as a result of the contract would become the property of the Department. Microsoft intended to subcontract with Houghton-Mifflin-Harcourt (HMH) to develop the content, which includes the practice lesson plans for the students. Microsoft stated in its Reply: "The Department of Education will have a perpetual license to use these lessons; HMH will retain copyright and ownership of all lessons provided." Microsoft intentionally did not agree to provide complete ownership of the project deliverables to the Department when it submitted its reply. David Gallagher, Microsoft's representative and the person who submitted the reply on behalf of Microsoft, admitted at the final hearing that he did not have authorization to give the Department ownership of the project deliverables when he submitted Microsoft's reply. Section 5.2.3 of the ITN provided that prices were to be submitted on a form that was provided in the ITN. The price form contains the following language: We propose to provide the services being solicited within the specifications of ITN 2011-18. All work shall be performed in accordance with this ITN, which has been reviewed and understood. The below prices are all inclusive. There shall be no additional costs charged for work performed under this ITN. The price form submitted by Microsoft did not contain this language. Taking the evidence as a whole, it is clear that Microsoft did not intend to be bound by its reply and thought that anything that was contrary to the ITN would be worked out in negotiations. The Department appointed an evaluation team that met on January 18, 2011, to score each reply. Some of the evaluators made note in their evaluations that Microsoft's reply did not meet the requirements of the ITN relating to ownership of the project deliverables. The evaluation committee awarded the maximum number of points for price to Microsoft. The two top-scoring vendors, Infinity and Microsoft, were invited into negotiations. The Department submitted questions to both Infinity and Microsoft before the negotiations, and both vendors submitted written responses to those questions. The Department submitted the following question to Microsoft: Your proposal states "HMH will retain copyright and ownership of all lessons provided" (pp.3-25, 3-33). How does this meet the ITN requirement that "All equipment, software and licenses, programming code and language documentation and content (both instructional and informative) that is developed as part of this project will be the property of the Department during and after the grant period. All such items must be completely transferred to the Department prior to the end of the contract period, including any licenses to the extent they have not expired. Any proprietary products owned by the Contractor must provide for a perpetual royalty free and non-exclusive license for use by the Department." (p. 6)? Microsoft responded to the question of ownership, in part, as follows: Developments. Upon payment in full, we assign you joint ownership in all rights in any custom computer code or materials (other than products, fixes or pre-existing work) developed by us (or in collaboration with you) and provided to you in the course of performance of this contract ("developments"). "Joint ownership" means each party has the right to independently exercise any and all rights of ownership now known or hereafter created or recognized, including without limitation the rights to use, reproduce, modify and distribute the developments for any purpose whatsoever, without the need for further authorization to exercise any such rights or any obligation of accounting or payment of royalties, except you agree you will exercise your rights for your internal business operations only, and you will not resell or distribute the developments to any un-affiliated third party. These use restrictions shall survive termination or expiration of this contract. Each party shall be the sole owner of any modifications that it makes based upon the developments. * * * Educational-Digital Content & Assessments. We will grant a perpetual, royalty-free and non-exclusive license (except as set forth below) for all of the content and lesson instruction and assessments created as part of this project to the State of Florida. As such, we will retain copyright and ownership of this created material, while the State of Florida may leverage the material on an exclusive basis in the State of Florida anywhere within its offices, school facilities, and education programs, including use extended to staff, administration, teachers, students and parents. Much of the content, particularly in the Reading, Language Arts/Literature and Civics disciplines is integrated into the lessons from third-party sources. The ownership of material permissioned from outside our team is unavailable to be granted or transferred to the State of Florida. However as part of the sustainability plan for the Student Standards Tutorial, we will ensure that mechanisms are in place to allow for permission renewals as required by contract with third-party content owners for a period encompassing four years from the final delivery of the contract period. Although Microsoft was given an opportunity to clarify its position on ownership of the product deliverables developed for the contract, Microsoft's response was still not responsive to the requirements of the ITN. The Department appointed a negotiation team that met separately with Infinity and Microsoft on February 3, 2011. During the negotiation session, a Microsoft representative stated that it would be "impossible" for Microsoft to provide complete ownership of equipment and software, that there was no way that Microsoft could put in its best and final offer that the Department would have complete ownership, and that Microsoft did not want to be non-responsive but it did not know how to fix the problem. After the negotiation session with Microsoft, Regina Johnson (Ms. Johnson) and Mary Jane Tappen, who were members of the negotiation team, engaged in email communications regarding whether the Department could change the language of the ITN to allow the Department to accept the licensing proposal offered by Microsoft. Ms. Johnson noted that if the ITN language were not changed, Microsoft could be rejected for non-compliance. On February 7, 2011, after the negotiation sessions, Ms. Johnson sent an email to Infinity notifying Infinity that the Department would accept a license or co-ownership proposal, reflecting a change in the ITN specifications. Following negotiations, each vendor was given the opportunity to submit a Best and Final Offer (BAFO) by February 11, 2011. Both vendors submitted BAFOs. On February 16, 2011, the negotiators held an Intent to Award meeting. Following discussion, two negotiators voted for Microsoft, and one voted for Infinity. On March 1, 2011, Chancellor Frances Haithcock sent an Intent to Award memorandum to Commissioner Eric Smith (Commissioner Smith), explaining why Microsoft provides the best value to the state. Commissioner Smith signed that memorandum on March 4, 2011. On March 7, 2011, the Department posted the Intent to Award to Microsoft.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the intended decision to award a contract to Microsoft pursuant to ITN 2011-18 is contrary to section 287.057 and the ITN. DONE AND ENTERED this 7th day of June, 2011, 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 7th day of June, 2011.
