The Issue The issues are whether the Department of Transportation may declare Petitioner non-responsible and ineligible to bid on Department contracts based upon Petitioner's alleged unsatisfactory performance and default on Department contract number E-5G08; and if so, for what period of time should Petitioner be declared non-responsible.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Parties Petitioner is a Florida corporation whose principal business is road and bridge maintenance. Petitioner also does some landscape installation work. Petitioner's president is Charles Welch. Petitioner has received between ten and 20 contracts from the Department since 1993. However, the contract at issue in this proceeding is the first landscape installation project that Petitioner has done for the Department. The Department is the state agency responsible for maintaining and regulating the use of the right-of-way along the state highway system. That responsibility includes overseeing the installation and maintenance of landscaping within the right-of-way. Department Contract No. E-5G08 In November 2001, the Department awarded Petitioner a contract to install landscaping around six interchanges in the central Florida area. The interchanges were identified and prioritized in the bid specifications as follows: (1) I-95/US 192 interchange; (2) I-4/Lake Mary Boulevard interchange; (3) SR 25/SR 200 interchange; (4) SR 482/SR 435 interchange; (5) I-95/SR 518 interchange; and (6) US 441/SR 46 interchange. The SR 482/SR 435 interchange was subsequently deleted from the project, and the I-4/Lake Mary Boulevard interchange was subsequently prioritized ahead of the I-95/US 192 interchange. The Department's contract identification number for the project was E-5G08. The contract required Petitioner to prepare and mulch 66,667 square yards of beds for the landscaping and then to install a total of 63,667 plumbago shrubs and 927 sabal palm trees. The plumbagos were required to be ten to 18 inches in height, and the palm trees were required to be nine to 20 feet in height. Petitioner did not challenge the specifications for the project. Petitioner bid $745,160.90 for the contract, and the Department accepted the bid at that amount. Petitioner's bid amount was calculated by multiplying a unit price for each plant type by the number of plants required under the contract, plus a unit price for the mulching/bed preparation multiplied by the total number of square yards in the beds. No separate amount was bid by Petitioner for "maintenance," and the bid form did not include a separate line for that item. The contract generally described the work to be performed by Petitioner as "furnish[ing] and install[ing] palms, plants and associated landscape materials at various locations." A similar description of the project was provided on the first page of the bid specification package. The contract and the bid specification package incorporated by reference the 2000 edition of the Department's Standard Specifications for Road and Bridge Construction (Standard Specifications). Mr. Welch was generally familiar with the Standard Specifications as a result of the prior contract work that he and Petitioner had done for the Department. He understood that the Standard Specifications were part of each Department construction and maintenance contract. Section 580-10 of the Standard Specifications, entitled "Contractor's Responsibility for Condition of the Plantings," requires the contractor to: [e]nsure that the plants are kept watered, that the staking and guying is adjusted as necessary, that all planting areas and beds are kept free of weeds and undesirable plant growth and that the plants are maintained so that they are healthy, vigorous, and undamaged at the time of acceptance. Section 580-11 of the Standard Specifications, entitled "Plant Establishment Period and Contractor's Warranty," requires the contractor to: [a]ssume responsibility for the proper maintenance, survival and condition of all landscape items for a period of one year after the final acceptance of all work under the Contract in accordance with [Section] 5-11. [The contractor shall also] [p]rovide a Warranty/Maintenance Bond to the Department in the amount of the total sums bid for all landscape items as evidence of warranty during this plant establishment period. The costs of the bond will not be paid separately, but will be included in the costs of other bid items. * * * [The contractor shall] [t]ake responsibility to apply water as necessary during this period and include the cost in the various landscape items. No separate measurement of payment will be made for water during the plant establishment period. Pursuant to Sections 5-10 and 5-11 of the Standard Specifications, "acceptance" of a project does not occur until the Department determines that the contractor has satisfactorily completed all work on the project and informs the contractor in writing that the project is accepted. Sections 5-10.2 and 5-10.3 of the Standard Specifications allow for acceptance of portions of the project, called "partial acceptance." Those provisions do not, however, require the Department to accept projects on a piecemeal basis. At the pre-construction conference held on November 19, 2001, Mr. Welch asked, "if a single location [would] be accepted as it is completed." The Department's project manager, Stephen Bass, replied that he would "check to see if this is possible," and he told Mr. Welch that "[i]n the meantime, as you complete a site, advise me in writing and I will respond " Based upon the subsequent correspondence between the parties, it can be inferred that the Department decided against accepting the project on a site-by-site basis. No partial or final acceptance was ever given for the project or any of the individual sites. The first page of the specification package provided that the contract period was "270 days for installation," and "365 addtl [sic] days after acceptance for establishment." The 365-day, post-acceptance establishment period referred to in the specification package is the same as the one- year period referred to in Section 580-11 of the Standard Specifications. Petitioner's obligations during the establishment period were specifically discussed at the pre-construction conference. At that time, Mr. Bass made it clear to Mr. Welch that the contract included the one-year establishment period, in addition to the 270-day installation period. The installation period began on December 3, 2001, and ended on September 8, 2002. The latter date takes into account the ten "[bad] weather days" added to the installation period under the terms of the contract. Mr. Welch understood the project to be an installation-only contract. That understanding was based upon the reference to a 270-day installation period in the specifications, and the fact that the bid form did not have a separate line-item for maintenance. Mr. Welch did not read the specifications word-for- word prior to bidding on the project, nor did he take into account Section 580-11 of the Standard Specifications or the language on the first page of the specification package which clearly referenced the 365-day, post-acceptance establishment period. Mr. Welch did not understand the contract to require Petitioner to weed or otherwise maintain the beds after the plants were installed. He understood the contract to only require Petitioner to install the plants and then water them through the end of the 270-day installation period. In reaching this conclusion, Mr. Welch did not take into account Section 580-10 of the Standard Specifications, which clearly requires pre-acceptance weeding and which makes the contractor the absolute insurer of the plants until acceptance by the Department. The Department did not in any way contribute to Mr. Welch's misunderstanding of the scope of the contract. The contract documents were clear and unambiguous on the issue and the Department made it clear from the outset that the contract included a one-year establishment period. Petitioner's Performance Under the Contract Petitioner performed its work under the contract in a series of steps. Petitioner first sprayed the areas at each site where the landscaping would be installed with a herbacide to kill any existing vegetation. Two herbacide treatments were done at each site. Petitioner then "mulched" the planting areas at each site by mowing the dead vegetation and marked the locations at each site where the palm trees were to be installed. Petitioner then planted the palm trees at each site. Next, Petitioner installed "weed fabric" at the I-4/Lake Mary Boulevard interchange (hereafter "the Lake Mary site"). The weed fabric has two purposes: it blocks the light that reaches the ground thereby reducing or eliminating weeds, and it also helps prevent erosion. After installing the weed fabric, Petitioner began planting the plumbago shrubs at the Lake Mary site. To do so, Petitioner cut and folded back the weed fabric where each plumbago was to be located and then dug the hole within which the plant was placed. After the plant was placed in the hole, the weed fabric was then re-folded around the base of the plant. After the plumbagos were planted, Petitioner completed its work at the Lake Mary site by spreading pine straw mulch in the landscaped beds. The contract required a four-inch layer of mulch. After completing its work at the Lake Mary site, Petitioner moved to another site and installed the weed fabric, planted the plumbagos, and spread the pine straw mulch at that site. Petitioner continued working on a site-by-site basis in this manner until all of the sites had been completed. In June 2002, the Department expressed concern to Petitioner that it had fallen behind its installation schedule. In response, Petitioner put more people on the job and was able to get back on schedule. Petitioner completed the installation of the plants within the 270 days allotted for installation. Petitioner periodically watered each of the sites as the plants were being installed. Petitioner had two water trucks that it used for watering. The truck used at the Lake Mary site sprayed a stream of water out of a hose at a relatively high flow rate. Because large portions of the landscaped beds at the Lake Mary site were on steep slopes around the interchange, the stream of water from the water truck caused some of the pine straw to wash down the slope. Heavy rains also caused the pine straw to wash down the slope and, in some areas, to wash away completely. As a result, some of the landscaped areas were not covered with the four inches of mulch required by the specifications. Mr. Welch acknowledged the loss of mulch in some areas, and he attributed it to the weed fabric being too "slick" to hold the mulch. Nevertheless, because Mr. Welch considered the replacement of the mulch to be maintenance, which he did not consider to be part of the contract, Petitioner never replaced the pine straw. Petitioner did not consider using a "drip line" or other watering system which would have applied the water at ground level or at a lower rate of flow than the stream of water being sprayed from the water truck. Such an alternative system may have minimized the amount of mulch that washed down the slope from watering, but it may not have affected the mulch that washed away due to heavy rains. Such a system may have also gotten more water to the plants' roots. Despite the watering done by Petitioner, plumbagos and palm trees died at the Lake Mary site, as well as at the other sites. Mr. Welch acknowledged the "loss" of a number of trees and plants, although he testified that fewer plants had died than he had projected at the outset of the project. The precise number of trees and plants which died before Petitioner was declared in default on the contract and told to stop work on the project is not clearly reflected in the record. The loss of the plumbagos at the Lake Mary site may be partially attributable to the weed fabric selected by Petitioner not being permeable enough to allow the water to reach the plant roots, but Petitioner's failure to utilize an alternative watering system to compensate for the "problems" it encountered with the weed fabric also contributed to the loss of the plumbagos. On August 12, 2002, the Department and Petitioner "agreed that substantial completion has been achieved" on each of the sites. That means that all or substantially all of the plants had been installed by that date; it does not mean that the Department had accepted the work, either partially or conditionally. By letter dated August 13, 2002, the Department informed Petitioner that maintenance of the completed sites was necessary. Specifically, the letter informed Petitioner that there were dead palm trees and plumbagos at all of the sites which needed to be replaced, that the pine straw mulch needed to be replaced at most of the sites, and that weeding needed to be done. Petitioner did not perform the weeding or other maintenance directed by the Department. Indeed, the only work that Petitioner did on the project after August 13, 2002, was on August 20, 2002, when it watered two of the sites. By letter dated August 15, 2002, Petitioner responded to the Department's direction that maintenance be commenced at the completed sites. In that letter, Petitioner characterized the maintenance as "extra work" and requested additional compensation for the maintenance work. The Department denied Petitioner's request for additional compensation by letter dated August 15, 2002. That letter informed Petitioner that "a Deficiency Letter would be forthcoming if weed removal operation does not begin immediately." Petitioner did not respond to the letter. By letter dated August 21, 2002, the Department issued a "performance deficiency" based upon Petitioner's failure to maintain the planted areas as required by the contract and as directed by the Department in the letters dated August 13 and 15, 2002. Petitioner did not contest the deficiency within the ten-day period prescribed by the letter. By letter dated August 22, 2002, the Department requested that Petitioner submit the Warranty/Maintenance Bond required by the contract since "substantial completion has been achieved on the . . . project." The letter further advised Petitioner that the one-year establishment period would not commence until the bond was received by the Department. Petitioner did not respond to the letter. By letter dated August 27, 2002, the Department provided Petitioner with a "punch list" of items that required correction before the project could be accepted. The list included the replacement of dead palm trees and dead or under- sized plumbago shrubs at all of the sites; missing pine straw mulch at all of the sites; weeding and general clean-up of all of the sites; and submittal of the Warranty/Maintenance Bond. At the time of the Department's August 27, 2002, letter, 12 days still remained in the installation period. Petitioner did not respond to the letter and it made no effort to complete the punch list items identified by the Department. The Department never accepted the work performed by Petitioner under the contract because of the deficiencies identified above. As a result, the 365-day post-acceptance establishment period never commenced. Petitioner never provided the Department the Warranty/Maintenance Bond required by Section 580-11 of the Standard Specifications, which was incorporated by reference into the contract. The Lake Mary site is highly visible because the adjacent roads are very heavily traveled. The Department received complaints regarding the appearance of the Lake Mary site. The complaints came from Seminole County officials and members of the public. Alternative Weed Fabric Proposed by Petitioner The specifications package for the contract provided general requirements for the weed fabric to be used on the project. It did not, however, specify a specific brand of fabric which must be used. The specifications package provided that "[t]he fabric shall conform to the physical requirements on Roadway and Traffic Design Standards, Index No. 199 according to its application." Index No. 199 refers to the weed fabric as an "erosion mat," and requires it to have an ultra violet (UV) rating of 2,000 hours. Index No. 199 does not prescribe criteria for water permeability for the weed fabric. Petitioner provided the information in the specifications package relating to the weed fabric to its material supplier, who then provided Petitioner a fabric that met the specifications. The Department was not involved in those discussions. As required by the specifications package, Petitioner provided the Department a copy of the product data sheet for the selected fabric so that the Department could confirm that the fabric met the requirements of Index No. 199. The weed fabric which Petitioner selected was called "gold line." It had a UV rating of 2,500 hours, which met the requirements of Index No. 199. It had a water permeability rating of 15 gallons per minute per square foot (gal/min/SF). After encountering the problems described above at the Lake Mary site, Petitioner began looking for an alternative weed fabric which would be more permeable to water. The alternative fabric identified by Petitioner was "Style 125EX" from Linq Industrial Fabrics, Inc. The water permeability rating for that fabric was 150 gal/min/SF, but its UV rating was only 500 hours. Mr. Welch provided the data sheet for the Style 125EX fabric to Mr. Bass and requested that Petitioner be allowed to substitute that fabric for the fabric that it had used at the Lake Mary site. The Style 125EX fabric would have been used on the remaining sites, because the Lake Mary site had been completed with the original weed fabric by that time. That request was denied by the Department because the UV rating for the Style 125EX fabric did not meet the requirements of Index No. 199. The lower UV rating meant that the fabric would not hold up as long and, therefore, could create maintenance problems in the future. After the request to substitute the Style 125EX fabric was denied, Petitioner did not attempt to locate an alternative material which met the UV rating specified in Index No. 199, but was more permeable to water than the gold line fabric. Petitioner's Default and Unsatisfactory Performance Rating Section 8-9.1 of the contract provides that: The following acts or omissions constitute acts of default and . . . the Department will give notice, in writing, to the Contractor and his surety for any delay, neglect or default, if the Contractor: * * * performs the work unsuitably, or neglects or refuses to remove materials or to perform anew such work that the Engineer rejects as unacceptable and unsuitable; discontinues prosecution of the work, or fails to resume discontinued work within a reasonable time after the Engineer notifies the Contractor to do so; * * * (j) for any other cause whatsoever, fails to carry on the work in an acceptable manner, . . . . For a notice based upon reasons stated in subparagraphs (a) through (h) and (j): if the Contractor, within a period of ten calendar days after receiving the notice described above, fails to correct the conditions of which complaint is made, the Department will . . . have full power and authority, without violating the Contract, to take the prosecution of the work out of the hands of the Contractor and to declare the contractor in default. On September 16, 2002, the Department notified Petitioner that it intended to "default" Petitioner under the contract based upon its failure to maintain the planted areas, its failure to replace the dead plumbagos and palms, and its failure to provide the required Maintenance/Warranty Bond. As required by the contract, the letter gave Petitioner 10 days to cure the deficiencies in its performance. Petitioner did not respond to the Department's default letter, nor did it take any action to cure the deficiencies identified by the Department. As a result, on September 30, 2002, the Department formally declared Petitioner in default on the contract and directed Petitioner not to perform any additional work on the project. By letter dated October 22, 2002, the Department advised Petitioner of its "preliminary" field performance rating for the contract. Petitioner received a raw score of 53 (out of 90), which is a scaled score of 59. That is an unsatisfactory rating. Petitioner did not contest its rating within the time allowed by the Department's October 22, 2002, letter. As a result, the preliminary rating became final. Petitioner was not scored in the area of "maintenance of traffic operations." The Department had not received any complaints from the public on that issue, which is the primary consideration upon which that score is based. Had Petitioner received a "satisfactory" grade in that category, Petitioner's total score would have been 60. If Petitioner received a higher grade in that category, its total score could have been as high as 63. In either event, those scores still result in an unsatisfactory rating. By letter dated February 12, 2003, the Department advised Petitioner that it intended to declare Petitioner non-responsible for a period of two years based upon its default and unsatisfactory performance on Department contract number E-5G08. Petitioner timely requested a formal hearing, and this proceeding followed. The Department stipulated at the hearing that its decision to declare Petitioner non-responsible was not based on Petitioner's numerical performance rating (whether it is 59, 60, or 63), but rather on the actual unsatisfactory performance that is described above. Subsequent Department Contract With Vila & Sons After Petitioner's default, the Department contracted with another entity "in order to salvage the Department's investment in this landscaping project, i.e., ensure that the plantings become established, " That contract, entered into in May 2003 between the Department and Vila & Sons Landscaping Corporation, is identified as contract number E-5H09 (Vila & Sons Contract). The contract amount was $112,461.36. The Vila & Sons Contract was for "one-time maintenance" of three of the sites that Petitioner was responsible for under its contract with the Department. The sites were the I-4/Lake Mary Boulevard interchange, the SR 25/SR 200 interchange, and the US 441/SR 46 interchange. The Vila & Sons Contract was only for a 60-day period and consisted of the following landscape maintenance functions: 1) weeding [which includes pruning of existing live shrubs], 2) removal and replacement of dead shrubs, 3) fertilizing [which includes "watering in"], 4) remulching as necessary, 5) watering for plant establishment and/or maintenance. (Brackets in original). The Vila & Sons Contract called for the installation of 3,700 plumbago shrubs. It does not make reference to the removal of dead palm trees, the re-erection of fallen palm trees, or the installation of new palm trees. The bid form for the Vila & Sons Contract included separate line-items for water, mulch pine bark, plumbago shrubs, slow-release fertilizer, and "landscape maintenance (weed removal, manual)." The record does not establish whether the Vila & Sons Contract was satisfactorily performed or whether it was successful in "salvaging" the installation work which had been done by Petitioner. Between the time that Petitioner was declared in default in September 2002 and May 2003 when the Vila & Sons Contract was entered into, the Central Florida area had periods of cold weather. The cold temperatures during those periods may have killed some of the plumbagos and palm trees installed by Petitioner, but the record does not establish how many plants, if any, were killed by the cold weather as compared to the plants that were already dead at the time of Petitioner's default.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order which declares Petitioner non-responsible and ineligible to bid on Department contracts for a period of two years, commencing on the date of the final order. DONE AND ENTERED this 18th day of September, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2003. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Brant Hargrove, Esquire Law Office of Brant Hargrove 2984 Wellington Circle, West Tallahassee, Florida 32308 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The ultimate issue in this proceeding is whether proposed Florida Administrative Code Rule 61G15-21 is an invalid exercise of delegated legislative authority.
Findings Of Fact Florida Administrative Code Rule 61G15-21.004, in relevant part, states: The criteria for determining the minimum score necessary for passing the Engineering Fundamentals Examination shall be developed through the collective judgment of qualified experts appointed by NCEES to set the raw score that represents the minimum amount of knowledge necessary to pass the examination. The judges shall use a Modified Angoff Method in determining the minimally acceptable raw score necessary to pass the Fundamentals of Engineering Examination. Using the above mentioned Modified Angoff Method, the judges will indicate the probability that a minimally knowledgeable Fundamentals of Engineering examinee would answer any specific questions correctly. The probability of a correct response is then assigned to each question. Each judge will then make an estimate of the percentage of minimally knowledgeable examinees who would know the answer to each question. The totals each of the judges is added together and divided by the number of judges to determine the overall estimate of the minimum standards necessary. The minimum number of correct answers required to achieve a passing score will take into account the relative difficulty of each examination through scaling and equating each examination to the base examination. The raw score necessary to show competence shall be deemed to be a 70 on a scale of 100. A passing grade on Part Two of the examination is defined as a grade of 70 or better. The grades are determined by a group of knowledgeable professional engineers, who are familiar with engineering practice and with what is required for an applicable engineering practice and with what is required for an applicable engineering task. These professional engineers will establish a minimum passing score on each individual test item (i.e., examination problem). An Item Specific Scoring Plan (ISSP) will be prepared for each examination item based upon the NCEES standard scoring plan outline form. An ISSP will be developed by persons who are familiar with each discipline including the item author, the item scorer, and other NCEES experts. On a scale of 0-10, six (6) will be a minimum passing standard and scores between six (6) and ten (10) will be considered to be passing scores for each examination item. A score of five (5) or lower will be considered an unsatisfactory score for that item and examinee will be considered to have failed that item. To pass, an examinee must average six (6) or greater on his/her choice of eight (8) exam items, that is, the raw score must be forty- eight (48) or greater based on a scale of eighty (80). This raw score is then converted to a base 100 on which, as is noted above, a passing grade will be seventy (70). The proposed changes to Florida Administrative Code Rule 61G15-21.004, in relevant part, state: The passing grade for the Engineering Fundamentals Examination is 70 or better. The criteria for determining the minimum score necessary for passing the Engineering Fundamentals Examination shall be developed through the collective judgment of qualified experts appointed by NCEES to set the raw score that represents the minimum amount of knowledge necessary to pass the examination. The judges shall use a Modified Angoff Method in determining the minimally acceptable raw score necessary to pass the Fundamentals of Engineering Examination. Using the above mentioned Modified Angoff Method, the judges will indicate the probability that a minimally knowledgeable Fundamentals of Engineering examinee would answer any specific questions correctly. The probability of a correct response is then assigned to each question. Each judge will then make an estimate of the percentage of minimally knowledgeable examinees who would know the answer to each question. The totals each of the judges is added together and divided by the number of judges to determine the overall estimate of the minimum standards necessary. The minimum number of correct answers required to achieve a passing score will take into account the relative difficulty of each examination through scaling and equating each examination to the base examination. The raw score necessary to show competence shall be deemed to be a 70 on a scale of 100. The passing grade for the Principles and Practice Examination is 70 or better. A passing grade on Part Two of the examination is defined as a grade of 70 or better. The grades are determined by a group of knowledgeable professional engineers, who are familiar with engineering practice and with what is required for an applicable engineering practice and with what is required for an applicable engineering task. These professional engineers will establish a minimum passing score on each individual test item (i.e., examination problem). An Item Specific Scoring Plan (ISSP) will be prepared for each examination item based upon the NCEES standard scoring plan outline form. An ISSP will be developed by persons who are familiar with each discipline including the item author, the item scorer, and other NCEES experts. On a scale of 0-10, six (6) will be a minimum passing standard and scores between six (6) and ten (10) will be considered to be passing scores for each examination item. A score of five (5) or lower will be considered an unsatisfactory score for that item and examinee will be considered to have failed that item. To pass, an examinee must average six (6) or greater on his/her choice of eight (8) exam items, that is, the raw score must be forty- eight (48) or greater based on a scale of eighty (80). This raw score is then converted to a base 100 on which, as is noted above, a passing grade will be seventy (70). Petitioner resides in Tampa, Florida. On April 11, 2003, Petitioner took a national examination that Petitioner must pass to be licensed by the state as a professional engineer. On July 1, 2003, Petitioner received a letter from the Board advising Petitioner that he had received a failing grade on the examination. On July 2, 2003, Petitioner unsuccessfully requested the raw scores on his examination from a representative of the National Council of Examiners for Engineering and Surveying (NCEES). The NCEES is the national testing entity that conducts examinations and determines scores for the professional engineer examination required by the state. On July 9, 2003, Petitioner submitted a formal request to the Board for all of the raw scores related to Petitioner "and all past P.E. Exams that the Petitioner had taken." A representative of the Board denied Petitioner's request explaining that the raw scores are kept by the NCEES and "it is not their policy to release them." The Board's representative stated that the Board was in the process of adopting new rules "that were in-line with the policies of the NCEES." On July 31, 2003, Petitioner requested the Board to provide Petitioner with any statute or rule that authorized the Board to deny Petitioner's request for raw scores pursuant to Section 119.07(1)(a), Florida Statutes (2003). On the same day, counsel for the Board explained to Petitioner that the Board is not denying the request. The Board is unable to comply with the request because the Board does not have physical possession of the raw scores. Petitioner and counsel for Respondent engaged in subsequent discussions that are not material to this proceeding. On August 6, 2003, Petitioner requested counsel for Respondent to provide Petitioner with copies of the proposed rule changes that the Board intended to consider on August 8, 2003. On August 27, 2003, Petitioner filed a petition with the Board challenging existing Florida Administrative Code Rule 61G15-21.004. The petition alleged that parts of the existing rule are invalid. Petitioner did not file a challenge to the existing rule with DOAH. The Petition for Hearing states that Petitioner is filing the Petition for Hearing pursuant to Subsections 120.56(1) and (3)(b), Florida Statutes (2003). However, the statement of how Petitioner's substantial interests are affected is limited to the proposed changes to the existing rule. During the hearing conducted on January 29, 2004, Petitioner explained that he does not assert that the existing rule is invalid. Rather, Petitioner argues that the Board deviates from the existing rule by not providing examinees with copies of their raw scores and by failing to use raw scores in the determination of whether an applicant achieved a passing grade on the exam. Petitioner further argues that the existing rule benefits Petitioner by purportedly requiring the Board to use raw scores in the determination of passing grades. The elimination of that requirement in the proposed rule arguably will adversely affect Petitioner's substantial interests. The Petition for Hearing requests several forms of relief. The Petition for Hearing seeks an order granting Petitioner access to raw scores, a determination that Petitioner has met the minimum standards required under the existing rule, and an order that the Board grant a license to Petitioner. The Petition for Hearing does not request an order determining that the proposed rule changes constitute an invalid exercise of delegated legislative authority.
The Issue The issue for consideration in this case is whether Petitioner should receive additional credit for his answers to questions 121 and/or 222 on the civil/sanitary engineer examination administered on April 18 and 19, 1997.
Findings Of Fact At all times pertinent to the issues herein, the Board of Professional Engineers was the state agency in Florida responsible for the licensing of professional engineers in this state and for the regulation of the engineering profession. Petitioner graduated from the University of South Florida in December 1990, with a degree in geo-technical engineering, a sub-specialty of civil engineering. He is not, nor does he claim to be, a structural engineer. He has practiced in the field of geo-technical engineering since his graduation and has taught soil mechanics at the master’s level at the university. He sat for the professional engineer’s examination administered by the Respondent in April 1997. Thereafter, by grade report dated July 29, 1997, the Department’s Bureau of Testing notified Petitioner that he had earned a score of 69.00 on the examination he had taken. Since a passing score for the examination which Petitioner took is 70.00, Petitioner failed the examination. Petitioner requested a formal hearing to challenge the grading of examination questions numbers 121 and 222, on each of which he earned a score of four. The maximum obtainable score on each question is ten. On question 121, the candidate is given a situation involving a sheet-pile wall section, and is asked to (a) sketch and dimension the earth pressure diagram acting on the wall after the proposed dredging has been completed; and (b) determine the factor of safety against the kick-out after the dredging. Scoring of the Petitioner’s examination was done by the National Council of Examiners for Engineering and Surveying (Council). The Council determined that, with regard to requirement (a), Petitioner’s pressure distribution was of the correct form, but the labeling of the distribution had a major error. Petitioner assumed an incorrect factor which was deemed to be a major error calling for, under the approved scoring plan, a minimum four-point deduction. With regard to requirement (b), Petitioner chose not to solve for the factor of safety as he was required to do. This resulted in a minimum reduction of two additional points. This evaluation was concurred by Mr. Adams, the Board’s expert witness, in his testimony at hearing. Mr. Adams noted that where, as here, the engineer is dealing with soil mechanics, the at-rest conditions are one thing. The active and passive (A and P) conditions are the more dynamic, and here, where the problem calls for removal of soil from in front of a retaining wall, A and P pressures should have been used instead of at-rest pressures. Adams also concluded that Petitioner’s cited authority was not valid in this case. This authority used the at-rest pressure coefficient when all the authorities Mr. Adams could find used the A and P pressure coefficient. Petitioner admits that the coefficients utilized in determining earth pressures are A, P and at-rest (O). In this case, the whole problem must be considered. A tie-back system is presented, and in that case the sheet pile and the tie-back are assumed to hold the soil behind the wall in an at-rest condition so long as the sheet-pile wall does not move or deflect. Petitioner contends that Mr. Adams’ determination that removing the soil would destroy stasis and cause the wall to move is erroneous. In fact, he contends, the sheet-pile wall and the anchor system must move before the Board’s argument holds. He cites an authority in support of his position which was also cited to the Council scorer who, at Petitioner’s request, rescored his answer. The Council official who rescored Petitioner’s answer did not have access to Petitioner’s cited authority but rejected the citation as either incorrectly cited or incorrect in itself. Petitioner’s error called for a four-point reduction in score as to (a). Further, as to requirement (b), Petitioner, though asked to solve for the factor of safety against rotation, chose not to do so. This calls for an additional two-point reduction. Independent review of Petitioner’s answer, including an evaluation of his cited authority, and consideration of the other evidence pertinent to this issue, including his testimony, that of his witness, and the rescoring results by the Council, does not satisfy the undersigned that Petitioner’s answer merits additional credit. The score of four, as awarded, is appropriate. Question 222 deals with a cantilevered retaining wall with a wide foundation and piling in two rows, some in front and some in back, to support it. The candidate is required to determine the total lateral thrust per linear foot acting on the wall in issue; to determine the vertical load on a front row pile; and to explain possible ways that the pile foundation can resist the lateral thrust. According to Mr. Adams, Petitioner incorrectly calculated the lateral load by omitting the proper depth of the wall. With regard to the vertical loading, the Petitioner did not get to the proper vertical load on the front pile but received partial credit for other calculations he performed. As for the last requirement, one part of Petitioner’s answer was incorrect in that he did not explain passive pressures properly. What Petitioner mentioned was incorrect, and he did not mention battering of the piles, which was expected to be noted. According to Mr. Adams, Petitioner got two parts of the question correct, each of which is worth two points. Therefore, he received a score of four points. Petitioner contends that the Board and the Council are being too restrictive in their approach to the problem and not taking into account the whole problem. He claims that though he arrived at the wrong figure in calculating the lateral load, that does not justify his receiving no credit for that segment since the method he used for calculating the thrust was correct. He admits to having erroneously neglected the weight of the soil, but contends that his method of determining the solutions to resist lateral thrust is as good as that of the Board and the Council. Petitioner was given only partial credit for his use of the correct equation to calculate the lateral thrust because he used the wrong depth. His answer to the second part was wrong in that he completely neglected the weight of the soil and calculating the pile load, even though he used the correct figure to multiply the load per foot of the wall. His answer to the third requirement, dealing with lateral resistance of the pile, was insufficient to warrant a full award. Taken together, his answer, in the opinion of the Council’s scorer, merited only an award of four points. Petitioner did not show sufficient basis for increasing this award. The evidence presented by the Board clearly established that both questions in issue provided enough information to allow the candidate to answer them correctly, and both are questions that a candidate for licensure should be able to answer. The scoring plan for these questions was not shown to be inappropriate, and there is no evidence that it was not properly utilized.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Professional Engineers enter a Final Order in this matter denying Petitioner additional credit for his answers to Questions 121 and 222 on the April 1997 Civil Engineer Examination. DONE AND ENTERED this 30th day of April, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1998. COPIES FURNISHED: Henri V. Jean 3273 Tanglewood Trail Palm Harbor, Florida 34685 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent, Stucco Drywall Contractors, Inc. ("Respondent"), failed to comply with the coverage requirements of the Workers’ Compensation Law, chapter 440, Florida Statutes; and, if so, whether Petitioner, Department of Financial Services, Division of Workers’ Compensation ("Department"), correctly calculated the penalty assessed against Respondent. Respondent does not contest the Stop-Work Order for Specific Worksite Only ("SWO"). Rather, Respondent asserts that the penalty contained in the 2nd Amended Penalty Assessment inappropriately includes two business entities ("HT Consulting Contractors" and "NDDS Services") that were "independent contractors" performing non-construction work, rather than "subcontractors" for whom Respondent has statutory liability.
Findings Of Fact The Parties The Department is the state agency responsible for enforcing the requirements of chapter 440 that employers in Florida secure the payment of workers’ compensation coverage for the benefit of their employees and corporate officers. Respondent, a Florida for-profit corporation, does stucco and drywall work, and was actively engaged in such business operations in the state of Florida from November 15, 2014, to November 14, 2016, during the two-year audit period. At all times material hereto, Respondent was an "employer" within the meaning of section 440.02(16), and Esperanza Duran and Bernardo Gomez were "corporate officers," as that phrase is defined in section 440.02(9).1/ The Investigation It is the duty of the Department to make random inspections of jobsites and to answer complaints concerning potential violations of workers’ compensation laws. On November 14, 2016, the Department’s investigator, Xotchilth Valdivia, commenced a random workers’ compensation compliance investigation at 12060 Hialeah Gardens Boulevard, Hialeah Gardens, Florida 33018, because she noticed two men doing a plaster job at a commercial construction site. The men said they worked for Plaster Solutions, Inc., adding that Plaster Solutions was a subcontractor for Respondent. The owner of Plaster Solutions, Duval R. Chavez, Sr., came to the worksite and told the investigator he had an exemption from Florida’s workers’ compensation laws, but no coverage for his two employees. Mr. Gomez came to the worksite and told the investigator he requested proof of workers’ compensation insurance when he hired Plastic Solutions, but did not receive it. The investigator searched the Compliance and Coverage Automated System maintained by the Division of Workers’ Compensation and found an exemption for Duval R. Chavez, Sr., but no workers’ compensation insurance for employees of Plaster Solutions. A similar search retrieved an exemption for Mr. Gomez and an employee leasing policy for Respondent. An employee leasing roster provided by Howard Leasing identified 10 employees of Respondent. The two men observed performing plaster work, Gilberto Reyes and Alexis Jeovany Ramos Jiminez, were not on the leasing roster and did not have exemptions from Florida’s workers’ compensation laws. The Department’s investigator contacted her supervisor and received permission to issue SWO 16-367-D5 to Plaster Solutions, Inc., and SWO 16-368-D5 to Respondent. Both orders were personally served on the respective business owners at the worksite. Upon service of the SWO, the investigator personally served Respondent with a Business Records Request ("BRR"), requesting business records sufficient to determine the amount of Respondent’s unsecured payroll for purposes of assessing a penalty pursuant to section 440.107(7)(d)1., for the audit period of November 15, 2014, to November 14, 2016. Penalty Calculation The Department’s penalty auditor, Sarah Beal, initially calculated a penalty in the amount of $117,791.66, based on business records (bank statements, proof of coverage or exemption for subcontractors) provided by Respondent. The auditor assigned National Council on Compensation Insurance ("NCCI") class code 5480, Plastering, based on the investigator’s observations of plastering work on the date of the site visit and records provided, such as the notations on the memo lines of Respondent’s checks. An attorney for the Department, Young Kwon, served the Amended Order of Penalty Assessment upon Respondent’s attorney, by email, on January 5, 2017. The Department issued a 2nd Amended Order of Penalty Assessment on September 7, 2017, reducing the penalty to $74,042.40, based on clarifying information provided by Respondent. The undersigned granted leave to amend the penalty on October 16, 2017. The 2nd Amended Order of Penalty Assessment calculates a penalty of $56,170.68 for HT Consulting Contractors and $12,983.50 for NDDS Services. Respondent concedes it did not secure the payment of workers’ compensation coverage for any of the individuals listed on the penalty worksheet of the 2nd Amended Order of Penalty Assessment during the periods of non-compliance listed on the penalty worksheet. Respondent does not contest the penalties for the following individuals or entities listed on the 2nd Amended Order of Penalty Assessment: Alexis Jeovany Ramoes Jimenez, ANA Services, Inc., DH Drywall Contractors, Esperanza Duran, Gilberto Reyes, and YYM Frames Enterprises. The only penalties disputed by Respondent are those attributable to HT Consulting Contractors and NDDS Services. HT Consulting Contractors Respondent contends that HT Consulting Contractors provided non-construction referral services as an independent contractor, and therefore, no penalty should be attributable to HT Consulting Contractors. However, Respondent failed to present persuasive and credible evidence at hearing that HT Consulting Contractors was an independent contractor performing non- construction referral services. Accordingly, the penalty attributable to HT Consulting Contractors is appropriate. HT Consulting Contractors incorporated on August 10, 2015, and was administratively dissolved on September 23, 2016. Henry Torres Castillo testified that he was the sole owner and employee of HT Consulting Contractors, a business which he operated from his residence for a period of one year up until just a few months before the hearing, when he closed the business. At all times material hereto, Mr. Castillo shared his residence with his wife, Ms. Duran, who is Respondent’s president. Mr. Castillo testified that he is a former construction worker in the areas of roofing, marble, stucco, and drywall, who only researched and found construction jobs for construction businesses, including Respondent, for which he was paid a commission. Mr. Castillo testified that he drove his personal vehicle to construction jobs to generate leads, met clients at restaurants, traveled to different parts of Florida, and performed detailed research related to the cost of materials and labor for his client construction companies. Bernard Gomez is vice-president of Respondent. Mr. Gomez likewise testified that HT Consulting Contractors was a referral company that only provided referral services to Respondent for which it was paid a commission. Both Mr. Castillo and Mr. Gomez denied that HT Consulting Contractors provided any labor or work in the construction industry. No written contracts, statements, receipts, or invoices evidencing any services provided by HT Consulting Contractors to Respondent were presented at hearing. No detailed written description of any of the jobs for which a referral commission was purportedly paid to HT Consulting Contractors was presented at hearing. No documents evidencing any of the purported detailed research by Mr. Torres were presented at hearing. No federal income tax returns or IRS 1099 forms for HT Consulting Contractors were presented at hearing. No business bank account statements for HT Consulting Contractors for the audit period were presented at hearing. Mr. Castillo did not utilize any business cards or marketing materials on behalf of HT Consulting Contractors. Ms. Duran did not testify at hearing. The Department presented numerous checks from Respondent payable to HT Consulting Contractors. These checks were signed by Ms. Duran as president and on behalf of Respondent. Many of the checks, included within the Department’s Composite Exhibit 14, contradict Respondent’s position that it paid HT Consulting Contractors for referral services as an independent contractor performing non-construction work. In fact, the checks support the Department’s position that HT Consulting Contractors was a subcontractor for whom Respondent has statutory liability. For example, on November 21, 2015, Ms. Duran signed check number 1319 made payable to HT Consulting Contractors in the amount of $6,000.00. The memo line of the check reads: "Supervisor." On November 20, 2015, Ms. Duran signed check number 1321 made payable to HT Consulting Contractors in the amount of $3,800.00. The memo line of the check reads: "Supervisor." On March 31, 2016, Ms. Duran signed check number 1417 made payable to HT Consulting Contractors in the amount of $12,000.00. The memo line of the check includes the word "labor." On April 20, 2016, Ms. Duran signed check number 1442 made payable to HT Consulting Contractors in the amount of $10,000.00. The memo line of the check reads: "Pay/employment." On June 1, 2016, Ms. Duran signed check number 1490 made payable to HT Consulting Contractors in the amount of $15,000.00. The memo line of the check reads: "Employment." On July 12, 2016, Ms. Duran signed check number 1501 made payable to HT Consulting Contractors in the amount of $10,000.00. The memo line of the check reads: "Pay Employment." On August 29, 2016, Ms. Duran signed check number 1530 made payable to HT Consulting Contractors in the amount of $11,000.00. The memo line of the check includes the words "sub labor." On September 7, 2016, Ms. Duran signed check number 1534 made payable to HT Consulting Contractors in the amount of $18,000.00. The memo line of the check includes the words "sub labor." On October 21, 2016, Ms. Duran signed check number 1553 made payable to HT Consulting Contractors in the amount of $11,000.00. The memo line of the check includes the words "sub labor." Mr. Castillo could not explain the reasons for the notations of the words "labor," "supervisor," and "employment" on the memo lines of checks signed by his wife. However, Mr. Castillo understands that the phrase "sub labor" "mean[s] a subcontractor provides labor." Mr. Castillo could not recall any details about the jobs that generated checks in the amount of $12,000.00 (check number 1472); $15,000.00 (check number 1490); and $10,000.00 (check number 1501). The undersigned had the distinct opportunity to observe the demeanor of Mr. Castillo and Mr. Gomez when they testified at hearing. Mr. Castillo’s and Mr. Gomez’s testimony that HT Consulting Contractors provided referral services outside the construction industry to Respondent as an independent contractor is rejected as unpersuasive and not credible. In sum, the Department correctly applied NCCI class code 5480 and the penalty attributable to HT Consulting Contractors is appropriate. NDDS Services Respondent contends that NDDS Services provided non- construction referral services as an independent contractor, and therefore, no penalty should be attributable to NDDS Services. However, Respondent failed to present persuasive and credible evidence at hearing that NDDS Services was an independent contractor performing non-construction work. Accordingly, the penalty attributable to NDDS Services is proper. Yyheeling Evans testified that she is the sole owner and member of NDDS Services, LLC, a business which she has operated from her home since its creation in 2013. Ms. Evans testified that NDDS Services researches and finds construction jobs for construction businesses, including Respondent, for which she is paid a commission. Mr. Gomez likewise testified that NDDS Services is a referral company that only provided referral services to Respondent for which it was paid a commission. Both Ms. Evans and Mr. Gomez denied that NDDS Services provided any labor or work in the construction industry. No written contracts, statements, receipts, or invoices evidencing any services provided by NDDS Services to Respondent were presented at hearing. No detailed written description of any of the jobs for which a referral commission was purportedly paid to NDDS Services was presented at hearing. No federal income tax returns or IRS 1099 forms for NDDS Services were presented at hearing. No business bank account statements for NDDS Services for the audit period were presented at hearing. Ms. Evans did not utilize any business cards or marketing materials on behalf of NDDS Services. The Department presented numerous checks from Respondent payable to NDDS Services. These checks were signed by Ms. Duran as president and on behalf of Respondent. Several of the checks, included within the Department’s Composite Exhibit 14, contradict Respondent’s position that it paid NDDS Services for referral services as an independent contractor performing non-construction work. In fact, the checks support the Department’s position that NDDS Services was a subcontractor for whom Respondent has statutory liability. On November 9, 2014, Ms. Duran signed check number 1165 made payable to NDDS Services in the amount of $7,000.00. The memo line of the check reads: "GV 1st Floor." On May 13, 2015, Ms. Duran signed check number 1202 made payable to NDDS Services in the amount of $15,000.00. The memo line of the check reads: "LAN 20550-As of today." On June 29, 2015, Ms. Duran signed check number 1220 made payable to NDDS Services in the amount of $9,450.00. The memo line of the check includes the word "finish." Ms. Evans could not recall any details about the jobs that generated the aforementioned checks. Ms. Evans testified that she holds a non-construction exemption. However, Ms. Evans sought a construction industry exemption for NDDS Services during the applicable audit period and she did not hold a valid exemption during the audit period. The undersigned had the distinct opportunity to observe the demeanor of Ms. Evans and Mr. Gomez when they testified at hearing. Ms. Evans’s and Mr. Gomez’s testimony that NDDS Services provided referral services outside the construction industry to Respondent as an independent contractor is rejected as unpersuasive and not credible. In sum, the Department correctly applied NCCI class code 5480 and the penalty attributable to NDDS Services is appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order assessing a penalty against Respondent in the amount of $74,042.40.3/ DONE AND ENTERED this 1st day of February, 2018, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2018.
Findings Of Fact On June 24, 1985, Respondent Bernardo Duran as qualifying agent for Duran Roofing, Inc., d/b/a A-1 Duran Roofing was issued a Certificate of Competency as a roofing contractor by the Metropolitan Dade County Construction Trades Qualifying Board. By letter dated July 22, 1986, Respondent was notified of five charges brought against him by the Metropolitan Dade County Construction Trades Qualifying Board. On August 14, 1986, Respondent attended a formal hearing before the Metropolitan Dade County Construction Trades Qualifying Board to answer the charges brought against him by the Board. At the conclusion of the hearing Respondent was advised by that Board that the Board had found him guilty of two of those charges and that the Board was taking disciplinary action against him as follows: a reprimand and a fine of $1,000 on one of those charges, and revocation of Respondent's personal and business Certificates of Competency plus a fine of $2,500 on the other charge. The fines totaling $3,500 were to be paid within 60 days. By letter dated August 15, 1986, Respondent was again advised that he was being given a reprimand, that his personal and business Certificates of Competency were revoked, and that he was being fined a total of $3,500 which was required to be paid within 60 days of the date of the formal hearing. On September 11, 1986, Respondent appealed the Order of the Metropolitan Dade County Construction Trades Qualifying Board to the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County. On February 4, 1987, Respondent filed with the Department of Professional Regulation, Construction Industry Licensing Board, his application for registration as a roofing contractor. Respondent attached to that application a copy of his revoked Metropolitan Dade County Construction Trades Qualifying Board Certificate of Competency, thereby indicating that he had met the prerequisites for state registration. Respondent specifically failed to advise that the certificate which he was attaching had been previously revoked. The application which Respondent filed with the Florida Construction Industry Licensing Board specifically asks on the applicant whether the applicant or a corporation for which the applicant is an authorized representative has ever had disciplinary action taken against a contracting license by any state, county or municipality. Respondent answered that question in the negative although he was fully aware that a negative answer was false. Unaware of Respondent's false representations contained within his application for state registration, on February 19, 1987, the Florida Construction Industry Licensing Board issued to Respondent as the qualifying agent for A-1 Duran Roofing a temporary license as a roofing contractor, registration number RC 0052908. Thereafter, the Florida Construction Industry Licensing Board became aware that Respondent's personal and business Certificates of Competency had been previously revoked by his local Board. Accordingly, no permanent license was issued to Respondent. On September 9, 1987, the Circuit Court of the Eleventh Judicial Circuit of Florida, issued its Mandate in Respondent's appeal from the Order of the Metropolitan Dade County Construction Trades Qualifying Board. Contrary to Respondent's assertion at the final hearing in this cause, the Circuit Court did not reverse the revocation of his certificates but rather reversed the final order of the Board and remanded the case for a new hearing to be conducted by that Board. Respondent admitted during the final hearing in this cause that no one had ever advised him that filing an appeal from an order of the Metropolitan Dade County Construction Trades Qualifying Board could stay any disciplinary action taken by that Board. Rather, Respondent admitted that he was specifically advised by that Board that he could only work again as a roofer if any appeal filed by him were successful. When Respondent submitted his application for registration to the Florida Construction Industry Licensing Board, he knew that the Certificate of Competency he attached to it had been revoked and that his denial of previous disciplinary actions was false.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained within the Administrative Complaint filed herein and revoking Respondent's license as a registered roofing contractor. DONE and RECOMMENDED this 28th day of December, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3936 Petitioner's proposed findings of fact numbered 1- 11, 13, and 16 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 12 and 15 have been rejected as being secondary to the ultimate issues involved herein. Petitioner's proposed finding of fact numbered 14 has been rejected as not being supported by the evidence in this cause. Petitioner's proposed findings of fact numbered 17 and 18 have been rejected as not constituting findings of facts but rather as constituting argument of counsel or conclusions of law. Respondent's proposed findings of fact numbered 1- 3 and 5 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4, 6, 7, 9, and 10 have been rejected as being contrary to the evidence in this cause. Respondent's proposed finding of fact numbered 8 has been rejected as being irrelevant. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Richard D. Katz, Esquire 300 Aragon Avenue Suite 330 Coral Gables, Florida 33134 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Department of Transportation's proposed action, the award of the contract in question to WRS Infrastructure and Environment, Inc., is contrary to its governing statutes, its rules or policies, or the proposal specifications.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: In March 1999, the Department issued a request for proposals, RFP-DOT-99/2000-6026DS ("RFP"), requesting that experienced firms submit proposals "for the purpose of providing district-wide contamination assessment and remediation services" in the Department's District VI, which consists of Miami-Dade and Monroe Counties. The RFP solicited proposals for an indefinite quantity contract, with a term of three years and a maximum value of $5 million. The proposals were to be presented in two separate, sealed packages, one containing the proposer's Technical Proposal and the other containing the proposer's Price Proposal. Pursuant to Section 1.16 of the RFP, the Technical Proposal were to be opened and evaluated before the Price Proposals were opened. Section 1.8.2 of the RFP is entitled "Responsiveness of Proposals" and provides: All Proposals must be in writing. A responsive Proposal is an offer to perform the Scope of Services in accordance with all the requirements of this Request for Proposal and receiving a score of seventy (70) points or more on the Technical Proposal. Proposals found to be non- responsive shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A Proposal may be found to be irregular or non-responsive by reasons that include, but are not limited to, failure to utilize or complete prescribed forms, conditional Proposals, incomplete Proposals, indefinite or ambiguous Proposals, and improper or undated signatures. (Emphasis in original.) Eight firms submitted proposals in response to the RFP, including WRS, OHM, and Metcalf & Eddy. A three-member Technical Review Committee was assembled, and the Technical Proposals were submitted to the Technical Review Committee for evaluation; all eight Technical Proposals received a score of 70 points or more. The Price Proposals were then opened and evaluated in accordance with the criteria set forth in the RFP. The Department posted a Notice of Intent to Award on August 26, 1999, in which it stated its intention to award the District VI contract to OHM. OHM was the highest-ranked proposer with a total score of 125.879 points; WRS was the second-highest-ranked proposer with a total score of 125.675 points; and, Metcalf & Eddy was the third-highest-ranked proposer with a total score of 118.569 points. It was noted in the Notice of Intent to Award that all eight proposals were accepted as responsive. On August 31, 1999, WRS filed a notice of its intent to protest the intended award of the District VI contract to OHM, and it filed its Formal Protest and Petition for Formal Administrative Hearing on September 10, 1999. Metcalf & Eddy did not file a protest with regard to the August 26, 1999, Notice of Intent to Award. As a result of information obtained by the Department subsequent to the filing of WRS's protest, OHM's proposal was re-evaluated, and, on October 20, 1999, the Department posted a Notice of Intent to Award (Revised), in which it stated its intention to award the District VI contract to WRS. The scores of WRS and Metcalf & Eddy remained unchanged as a result of the re-evaluation of OHM's proposal, but OHM's score decreased to 124.212 points. As a result, WRS became the highest-ranked proposer, OHM became the second-highest-ranked proposer, and Metcalf & Eddy remained the third-highest-ranked proposer. On October 25, 1999, Metcalf & Eddy filed its Notice of Intent to Protest with the Department, and it filed the Formal Protest of Metcalf & Eddy, Inc., on November 4, 1999. A settlement conference was conducted on November 17, 1999, but the Department and Metcalf & Eddy were unable to resolve the issues raised in Metcalf & Eddy's protest. As a result, the Formal Protest of Metcalf & Eddy, Inc., was referred to the Division of Administrative Hearings on January 28, 1999, and initiated this proceeding. On December 9, 1999, the Department's Awards Committee met to re-consider its decision of October 15, 1999, to award the District VI contract to WRS in light of the issues raised in the protests filed by OHM and Metcalf & Eddy. The Awards Committee decided not to disturb the decision reflected in the October 20, 1999, Notice of Intent to Award (Revised). SPURS Number Section 1 of the RFP provides that the "State of Florida Department of Transportation Request for Proposal Contractual Services Acknowledgement (Pur #7033) . . . will be handed out at the mandatory pre-proposal meeting." The form itself is entitled "State of Florida Request for Proposal, Contractual Services Bidder Acknowledgement" ("Bidder Acknowledgement form"). A box that appears near the top of the Bidder Acknowledgement form is labeled "STATE PURCHASING SUBSYSTEM (SPURS) VENDOR NUMBER."3 The Bidder Acknowledgement form also includes a statement of General Conditions, which provides in pertinent part: Execution of Proposal: Proposal must contain a manual signature of authorized representative in the space provided above. Proposal must be typed or printed in ink. Use of erasable ink is not permitted. All corrections made by proposer to his proposal price must be initialed. The company name and SPURS vendor number shall appear on each page of the bid as required. . . . WRS, OHM, and Metcalf & Eddy included an executed copy of the Bidder Acknowledgement form at the beginning of their proposals. The Bidder Acknowledgement form is not a part of either the Technical Proposal or the Price Proposal. Metcalf & Eddy inserted "042428218-003" in the box reserved for the SPURS number; WRS inserted "P13202"; and OHM inserted "#94-1259053." "042428218-003" is a SPURS number assigned by the Department of Management Services, and Metcalf & Eddy is a vendor registered with that department. "P13202" is not a SPURS number. "#94-1259053" is OHM's federal identification number, and is the number that they commonly use as their SPURS number in the proposals they submit to the Department. Both WRS and OHM are registered as interested vendors with the Department of Management Services, pursuant to Section 287.042(4), Florida Statutes.4 Metcalf & Eddy included its name and its SPURS number on each page of the proposal it submitted in response to the District VI RFP. Neither WRS nor OHM included the name of the company and the SPURS number on each page of their proposals. There is no requirement in the District VI RFP that the name of the company and the SPURS number be included on each page of the proposal. Section 1.8.6 of the RFP is entitled "Waivers" and provides: The Department may waive minor informalities or irregularities in Proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other Proposers. Minor irregularities are defined as those that will not have an adverse effect on the Department's interest and will not affect the price of the Proposal by giving a Proposer an advantage or benefit not enjoyed by other Proposers. Paragraph 6 of the General Conditions set forth on the Bidder Acknowledgement form provides in pertinent part: "AWARDS: As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any minor irregularity or technicality in proposals received. " Nancy Lyons is the Contractual Services Unit Administrator for District VI. Ms. Lyons reviews the proposals to determine if they are responsive and to determine if an irregularity or omission is minor and can be waived under the terms of the RFP. It is Ms. Lyons practice to waive as a minor irregularity the omission of a SPURS number or the inclusion of an incorrect SPURS number to be a minor irregularity because, if a vendor is registered with the Department of Management Services, the SPURS number is readily available to the Department. In addition, the SPURS number does not effect either the technical content of the proposal or the price in the proposal. The WRS and OHM proposals were not rejected by the Department's District VI Contractual Services Unit even though WRS and OHM failed to include their SPURS numbers on the Bidder Acknowledgement form and failed to include the company name and SPURS number on each page of their proposals. Disparate treatment. In 1998, Metcalf & Eddy submitted a proposal in response to a Request for Proposals issued by the Department's District IV. In its Price Proposal, Metcalf & Eddy failed to include a price or a zero in three blanks reserved for the daily rate, weekly rate, and monthly rate for an X-Ray Fluorescence (XRF) Spectrum Analyzer; Metcalf & Eddy included as the "Total" for this item "$0.00." Metcalf & Eddy's District IV proposal was rejected as non-responsive as a result of these omissions. Metcalf & Eddy filed a Formal Written Protest and Request for Formal Administrative Hearing and challenged the decision to reject its proposal as non-responsive. After informal efforts to resolve the issue raised in the protest were unsuccessful, Metcalf & Eddy withdrew its protest; the Department entered a Final Order on August 11, 1998, dismissing the protest. Summary The evidence presented by Metcalf & Eddy is not sufficient to establish that the Department's decision to accept the WRS and OHM proposals as responsive is clearly erroneous, contrary to competition, arbitrary, or capricious. The omission of the SPURS number on the Bidder Acknowledgement form is a minor irregularity that did not give WRS or OHM a substantial advantage over Metcalf & Eddy and was of no consequence to the Department because it has ready access to the SPURS numbers included in the database of interested vendors maintained by the Department of Management Services. Furthermore, WRS and OHM were not required to include their company name and SPURS number on each page of the proposal because this requirement was not included in the specifications in the RFP. Finally, Metcalf & Eddy has failed to present evidence to establish that it is the victim of disparate treatment by the Department; the decision of the Department to reject the proposal it submitted to District IV in 1998 is irrelevant to the issues raised in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order dismissing the Formal Protest of Metcalf & Eddy, Inc. DONE AND ENTERED this 30th day of July, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 30th day of July, 2001.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Second Amended Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Mr. Danforth was licensed by the Board as a professional engineer, having been issued license number PE 44653. On March 5, 1996, Mr. Danforth was issued a Special Inspector license, license number 1103, by the Department of Community Affairs (DCA). Mr. Danforth submitted an application for the Special Inspector's license (Application) to DCA on January 29, 1996, based upon his experience and hours of structural design course work. In his Application, Mr. Danforth represented that, during 1995 through 1996, he had inspected the structural elements of four threshold type buildings. From October 1993 through April 1998, Mr. Danforth was employed by Fraser Engineering & Testing, Inc. (FET). The owner of FET, Alexander Fraser, who, at the times material hereto, was a licensed engineer, testified at hearing. Mr. Fraser's testimony is uncontroverted and found to be credible. FET performed threshold inspections as part of its business, but such inspections comprised a minority part of its business. FET did not engage in any structural design. Mr. Danforth was the most senior geotechnical engineer for FET in charge of foundation investigations. Mr. Fraser was the Special Inspector in charge of and responsible for the projects referred to in Mr. Danforth's Application. According to Mr. Fraser, Mr. Danforth supervised all threshold projects for FET and periodically visited project sites, including the four threshold projects in Mr. Danforth's Application. As to structural engineering special inspections by FET, Mr. Fraser testified that Mr. Danforth supervised FET's inspectors, who performed the day-to-day inspections, and would perform periodic site inspections to make sure that the day-to- day inspections were being properly made by the inspectors. Mr. Fraser further testified that to make certain that the inspectors were performing in accordance with "proper engineering," Mr. Danforth had to be "intimately involved in the inspections" by making on-site visits, discussing the projects with the inspectors when they returned at night, and reviewing the daily reports generated on the sites. If the inspectors who performed the day-to-day inspections had questions or problems, they went to Mr. Danforth. At the time for the final reports, Mr. Danforth would sign the final reports, followed by Mr. Fraser who would sign them as the Special Inspector. Mr. Fraser had complete confidence in Mr. Danforth. The former operations manager of FET, David Alker, who was employed with FET during the time period of the four threshold projects, testified that all structural inspection issues, regarding the projects, were referred to Mr. Danforth. Mr. Alker's testimony is found to be credible. The Board presented the testimony of an expert witness, Jose R. Danon, Ph.D., P.E., who was a structural engineer. Among other things, Mr. Danon reviewed Mr. Danforth's Application to DCA for the Special Inspector's license, documents regarding Mr. Danforth's engineering experience, and Florida Administrative Code Rule 9B-3.043, which was the rule, at the time of Mr. Danforth's Application, setting forth the minimum qualifications for the Special Inspector's license. Mr. Danon testified that Mr. Danforth's Application material did not provide sufficient information for him (Mr. Danon) to make a determination as to whether Mr. Danforth was qualified for a Special Inspector's license; and that the description of Mr. Danforth's engineering experience was insufficient to make a determination as to whether Mr. Danforth had sufficient engineering experience to qualify for a Special Inspector's license. Accordingly, Mr. Danon opined that Mr. Danforth failed to meet the minimum qualifications for a Special Inspector's license. Mr. Danon's opinion is not found to be credible. He is not a Special Inspector and has never applied for or been issued a Special Inspector's license. Mr. Danon essentially testified that, because of the lack of sufficient information, he was unable to make a determination that Mr. Danforth was qualified to be licensed as a Special Inspector. No testimony was presented by Mr. Danon applying the facts, as he knew them from the documents provided to him by the Board, to the minimum qualifications set forth in Florida Administrative Code Rule 9B- 3.043. Mr. Danon had no knowledge as to how DCA interpreted the said Rule. Moreover, Mr. Danon had no knowledge as to what criteria DCA used to issue Mr. Danforth the Special Inspector's license. Mr. Danon did not opine in any way, form or fashion that Mr. Danforth submitted false, fraudulent, or misleading information or negligently submitted information regarding his Application and/or engineering experience. Mr. Danon testified that he had no opinion, that he did not know, as to whether the information was false, fraudulent, or misleading. A finding is made that the evidence fails to show that Mr. Danforth submitted false, fraudulent, or misleading information or negligently submitted information for his Special Inspector's license. Mr. Danon heard the testimony of all the witnesses, including Mr. Danforth. Having heard all of the testimony, Mr. Danon was not called or re-called to testify as to whether his opinion had changed regarding whether Mr. Danforth met the minimum qualifications for a Special Inspector's license in 1996. The evidence does not show that DCA failed to properly apply the minimum criteria of Florida Administrative Code Rule 9B-3.043. Mr. Danforth was also a former employee of Professional Engineering and Inspection Company, Inc. (PEICO). He was one of PEICO's professional engineers and Special Inspectors and had become one of its officers. On January 27, 2003, Mr. Danforth signed and sealed a Threshold Inspection Completion Statement (Completion Statement), as Special Inspector, for a PEICO project, the Jefferson at Camino Real, located in Boca Raton, Florida. The Completion Statement was submitted to the City of Boca Raton Building Department. Mr. Danforth certified in the Completion Statement that "To the best of our knowledge and belief, the construction of all structural load bearing components described in the threshold plan complies with the permitted documents, and the shoring and reshoring conformed with the shoring and reshoring plans submitted to the enforcing agency." Also, on January 27, 2003, Mr. Danforth signed and sealed a Special Inspector Certificate (Certificate), as Special Inspector for the PEICO project. The Certificate was also submitted to the City of Boca Raton Building Department. The certificate provided Mr. Danforth, with certifying that he agreed “to be present on the project at all times when construction activities for which I am Special Inspector, to check the work for compliance with approved drawings and applicable codes and ordinances of the City of Boca Raton, and to submit both periodic reports and the Certificate of Completion . . ." Mr. Danforth was not the original Special Inspector on the PEICO project. Gary H. Elzweig, P. E., was the original Special Inspector for the PEICO project, but he had been fired and was in litigation with PEICO. Mr. Danforth was not on the project as a Special Inspector, so he had not been making periodic on-site inspections, discussing the project with the day-to-day, on-site inspectors, and reviewing reports. Mr. Danforth testified that, prior to signing the Completion Statement and the Certificate, he conferred with the Board and the City of Boca Raton Building Department to determine what were the necessary requirements to change the qualifying Special Inspector on the project and certify the project. He testified that the Board advised him that the requirements of the local jurisdiction, i.e., the City of Boca Raton, controlled. Mr. Danforth further testified that the City of Boca Raton Building Department advised him that the same documents submitted by the original Special Inspector at the beginning of the project must be re-submitted by the new Special Inspector and that the Completion Statement must be submitted by the new Special Inspector. Mr. Danforth's testimony is found to be credible. Furthermore, prior to signing the Completion Statement, Mr. Danforth acted as he thought was "prudent and within the standard duty of care to be able to sign-off" on the project. He reviewed the inspection reports; interviewed all the day-to-day, on-site inspectors to make sure that no remaining issues existed regarding the threshold inspection; and visited the project himself, making an on-site inspection. Mr. Danforth was satisfied that he could execute the Completion Statement. On February 3, 2003, Mr. Danforth submitted to the City of Boca Raton Building Department a revised Completion Statement. He certified that Mr. Elzweig was no longer employed by PEICO and no longer the Special Inspector; that he (Mr. Danforth) was replacing Mr. Elzweig as the Special Inspector; and that "To the best of our knowledge and belief, the construction of all structural load bearing components described in the threshold plan complies with the permitted documents, and the shoring and reshoring conformed with the shoring and reshoring plans submitted to the enforcing agency." Mr. Danon opined that "any qualified Special Inspector (SI) working for the company PEICO could have signed the Certificate of Completion (COC) for their project as long as the SI had reviewed and concurred with the documentation Mr. Elzweig had approved during his working relationship with PEICO." Furthermore, Mr. Danon opined that Mr. Danforth committed no wrongdoing in signing the COC. Mr. Elzweig testified that Mr. Danforth committed no wrongdoing in signing the COC. The signing of the Completion Statement, or the COC, and the revised Completion Statement by Mr. Danforth is found to be in compliance with the requirements of the local jurisdiction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Board of Professional Engineers enter a final order dismissing the Second Amended Administrative Complaint. DONE AND ENTERED this 11th day of April 2005, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 11th day of April, 2005.
