The Issue Whether, in making a preliminary decision to award a contract for the subject services, the Florida Department of Transportation (Respondent) acted contrary to a governing statute, rule, policy, or project specification; and, if so, whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact Respondent is an agency of the State of Florida and is the procuring agency in this proceeding. Petitioner's Notice of Protest and its Amended Petition were timely filed. The services being procured were advertised as the "Continuing Services Contract for Materials Testing and Geotechnical Services Request for Proposals." The procurement sought to secure the services of a prime consultant to support Respondent's District 5 by providing professional services in the fields: soil exploration; geotechnical exploration testing; highway material testing; foundation studies; pavement evaluation; and construction materials sampling, testing, and reporting. Due to the nature of the services to be provided, the RFP contemplated that the prime consultant would have to use sub-consultants for certain services. Each proposer was required to list the sub-consultants it would use and identify the fields of work the sub-consultants would perform. There were no challenges to the specifications of the RFP. Petitioner, Intervenor, and Ellis were the three shortlisted firms and submitted proposals, which included a "Project Related Information Package." All three members of the TEC made an affirmative finding that all three proposers are qualified to perform the required services as the prime consultant. Roger Schmitt, Kathy Gray, and Jeremy Wolcott acted as the TEC, and performed the evaluation and scoring of the technical proposals submitted in response to the RFP. All three are professional engineers. There was no issue as to whether the evaluators were qualified to serve in that capacity. The TEC was charged with evaluating the materials submitted by the three proposers in accordance with the RFP (Joint Exhibit 1) and Procurement Topic 375-030-002-i, styled Acquisition of Professional Services (Joint Exhibit 4). The responses could be awarded a maximum of 100 points. A maximum of 30 points could be awarded under the heading: "Management Plan." A maximum of 15 of those 30 points could be awarded under the subheading: "What is your Management Plan for this Contract." A maximum of 15 of those 30 points could be awarded under the subheading: "Explain your ability to provide services in a timely and effective manner." A maximum of 30 points could be awarded under the heading: "Geotechnical Services." A maximum of five of those 30 points were to be awarded under the subheading: "Describe how you will provide Geotechnical support for Design." A maximum of 25 of those 30 points could be awarded under the subheading: "Describe your approach to providing PDA [pile driver analysis] testing and engineering." A maximum of 40 points could be awarded under the heading: "Construction Materials Testing and Evaluations." A maximum of ten of those 40 points could be awarded under the subheading: "What qualified technicians (including qualified Pre-Stress inspectors) are available for this contract and what Certifications do they currently hold? (See scope of services for qualifications list.)" A maximum of 20 of those 40 points could be awarded under the heading: "What is your plan for staffing, oversight activities, recruitment, and training of VT [verification technician] asphalt plant technicians? How do you plan to manage the program to make sure the asphalt plants are staffed without disruption to construction and to keep costs in check?" A maximum of ten of those 40 points could be awarded under the subheading: "Describe your experience, commitment to turnaround time and internal review process for performing pavement survey evaluations. Describe how you propose to manage the program for Maintenance of Traffic, lane closures, and meeting the Department production for coring." Mr. Barker is a professional engineer and a professional geologist. He is a director and vice president of Petitioner. He was actively involved with preparing the proposal submitted by Petitioner. Mr. Barker is a former employee of Respondent, having served as the District Materials Engineer for Districts 1 and 7 until he moved to Petitioner five years ago. Frank Smith is the consultant project manager for District 5 for Materials Research. Mr. Smith also assigned the performance grade associated with the most recent contract between Petitioner and Respondent for District 5 materials testing. Mr. Smith gave Petitioner a score of 4.7 out of a possible 5 points. Each TEC member scored each proposer pursuant to the terms of the RFP. After the three TEC members scores were compiled, Intervenor had a total score of 263 points (for an average of 87.67), Petitioner had a total score of 262 points (for an average of 87.33), and Ellis had a total score of 257 points (for an average of 85.67). The TEC ranked Intervenor first, Petitioner second, and Ellis third. Respondent's selection committee decided to award the RFP to Intervenor based on the rankings of the TEC. Ms. Gray is a 23-year veteran with Respondent's District 5. She has served on many evaluation committees during her employment with Respondent. She reviewed the RFP before it was issued, and she participated in determining what entities should be shortlisted. Ms. Gray is very familiar with Intervenor and Petitioner. Ms. Gray read all information submitted by the three proposers, with the exception of certain employee resumes, before assigning scores to any response. Her scoring reflects her evaluation of the strength of each response as compared with the other responses. MANAGEMENT PLAN As reflected above, under the subheading "Management Plan for Contract," a proposer could be awarded a maximum of 15 points. For that category, Ms. Gray awarded Intervenor a score of 15, while awarding Petitioner a score of 10. In determining Petitioner's score for "Management Plan for Contract", Ms. Gray made the following notations on the scoring form: Good overall Plan and Project Manager. Since we will only have two CSC Materials and Research contracts in the future, the potential for conflict of interest problems is a bigger concern than in the past. Universal has the highest conflict of interest risk of the three firms. Universal has a preference for maximizing the use of in-house resources even when qualified sub-consultants are available and closer to the job. Their approach would be stronger if the welfare of the project was the highest priority. The Firm only committed to 10% DBE [Disadvantaged Business Enterprise] participation.[3] It was reasonable for Ms. Gray to conclude that Petitioner's response to the RFP stressed its in-house capabilities. Mr. Smith gave advice to the TEC. Prior to the review, Mr. Smith related to the TEC members that Mr. Barker had, in the past, expressed a strong preference on the part of Petitioner to use in-house resources rather than sub-consultants when it could. It was reasonable for Ms. Gray to rely on Mr. Smith's advice, particularly when she was familiar with Petitioner and the way Petitioner operated. It was reasonable for Ms. Gray to consider the three proposers' potential for conflict of interests in scoring their proposals. Petitioner failed to establish that Ms. Gray's scoring for this category, as compared with the other proposals, was arbitrary or capricious. ASSIGNMENT OF SUB-CONSULTANTS The Scope of Services, which is attached to joint exhibit 1 as exhibit A, provides at page nine: The assignment of dynamic pile testing/analyses personnel to projects shall be at the sole discretion of the District Geotechnical Engineer. As noted above, Ms. Gray is the District Geotechnical Engineer. Ms. Gray testified that she has been instructed not to tell prime consultants what sub-consultant to use for any services, including PDA. Mr. Schmitt explained that the foregoing provision is used to provide Respondent the authority to prohibit a prime consultant from using an unqualified sub- consultant. Because of this policy, Ms. Gray could not order the prime consultant to use a sub-consultant instead of using its in-house resources. Mr. Barker testified that Petitioner had been asked by District 5 project managers to use certain sub-consultants for certain work. He further testified that Petitioner has never refused such a request, even if it had to add a sub-consultant to its list of sub-consultants. There was insufficient evidence to establish that Ms. Gray had ever asked Petitioner to use a particular sub-consultant. APPROACH TO PDA As reflected above, under the subheading "Approach to providing PDA testing and engineering," a proposer could be awarded a maximum of 25 points. For that subheading Ms. Gray awarded Petitioner a score of 20 while awarding Intervenor a score of 25. In determining Petitioner's score for "Approach to providing PDA testing and engineering," Ms. Gray made the following notations on the scoring form: Universal has expressed a strong preference for using in-house PDA resources; however, their small in-house staff does not meet all the scope requirements and is not located in the District. They have reluctantly used sub-consultants in the past, but it is not clear how committed they are to using the most qualified and efficient resources available. Some firms are more cooperative in this area. In scoring this subheading, Ms. Gray considered Petitioner's response, which emphasized its in-house capability to do PDA as required by the RFP. Ms. Gray was concerned that Josh Adams, the person Petitioner identified as the employee responsible for the in-house performance of PDA, was not qualified to perform PDA services. After describing its in- house resources for performing PDA, including equipment, Petitioner's response included the following (at page 3 of Joint Exhibit 2): PDA testing field services and all corresponding analyses/recommendations are performed by our in-house staff (Josh Adams) or by our subconsultants [sic] RS&H, CS, GRL, F&GE of AFT. Our subconsultants [sic] can provide additional equipment and have performed PDA for numerous FDOT projects. Ms. Gray was familiar with three of the proposed sub- consultants and considered the three to be qualified. At the time of the technical evaluation and at the time of the formal hearing, Josh Adams did not have the qualifications to conduct the PDA required by the RFP and could not perform the services for Petitioner on an in-house basis. Mr. Adams had recently joined Petitioner's employment to replace an employee who had previously done the PDA work for Petitioner. Petitioner's proposal did not discuss Petitioner's future plans for Mr. Adams or how it intended to develop in-house capability to perform PDA work. Intervenor's response to the PDA inquiry indicated that in addition to one other sub-consultant (URS), which Ms. Gray considered to be qualified, it would use the three qualified sub-consultants to perform the PDA services identified by Petitioner. Intervenor does not have in-house capability to perform the required PDA services. Ms. Gray deducted points from Petitioner under the subheading "Approach to providing PDA testing and engineering" because of its "reluctance" to use sub-consultants and because it failed to include URS as a sub-consultant. Ms. Gray's use of the term "reluctance" was not supported by the evidence. While there was sufficient evidence to establish that Petitioner had a strong preference to use its in-house resources when it could, there was insufficient evidence to establish Petitioner's "reluctance" to use sub-consultants when necessary. Her testimony explained that her concern was Petitioner's strong preference to use in-house resources, when the use of a sub- consultant would better serve the interests of District 5. She was of the opinion that Petitioner's failure to include URS as a sub-consultant signaled that Petitioner was not as committed as the other proposers to using sub-consultants. Petitioner failed to establish that Ms. Gray's scoring for this category, compared with the other proposers, was arbitrary or capricious. CERTIFICATIONS As reflected above, under the subheading "Qualified technicians and what Certifications do they currently hold," a proposer could be awarded a maximum of 10 points. Ms. Gray awarded Petitioner a score of 8 while awarding Intervenor a score of 10. In determining Petitioner's score for that subheading, Ms. Gray made the following notations on the scoring form: Universal has many qualified technicians. However, it is not clear what they will do for Prestress inspectors. Their Qualified Personnel matrix shows one good sub- consultant we are familiar with, but the other two Prestress technicians listed are based outside the District and we have no experience with them. Petitioner failed to establish that Ms. Gray's scoring of this subheading, compared with the other proposals, was arbitrary or capricious. ASPHALT PLANT TECHNICIANS As reflected above, under the subheading "plan for staffing, oversight activities, recruitment, and training of VT asphalt technicians", a proposer could be awarded a maximum of 20 points. Ms. Gray awarded Petitioner a score of 15 while awarding Intervenor a score of 18. In determining Petitioner's score for that subheading, Ms. Gray made the following notations on the scoring form: Universal has a good group of qualified Asphalt VT technicians. However, it appears supervision of the program is planned to be by the general Contract Manager, who is not Plant Certified. Other firms have a stronger Asphalt Plant VT Quality Assurance oversight plan. Although the RFP did not specifically address "Quality Assurance," the term "oversight activities" is sufficiently broad to encompass "Quality Assurance." There is no requirement for the supervisor to be "Plant Certified." Petitioner failed to establish that it was inappropriate for Ms. Gray to consider whether the supervisor was plant certified in comparing proposals. Petitioner failed to establish that Ms. Gray's scoring of this subheading, compared with the other two proposals, was arbitrary or capricious. BIAS There was no evidence that Ms. Gray was biased in favor of or against any proposer. Ms. Gray based her evaluation of Petitioner on the basis of the criteria established by the RFP using her background and experience dealing with the proposers. There was no evidence that the methodology she employed in weighing the merits of the three proposals was improper. Respondent's selection committee acted reasonably in selecting the consultant (Intervenor) that the TEC ranked first.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order that denies Petitioner's bid protest and upholds the award of the procurement to Intervenor. DONE AND ENTERED this 24th day of October, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 24th day of October, 2011. 1 Two members of the TEC (Ms. Gray and Mr. Wolcott) ranked Intervenor in first place. 2 In its Proposed Recommended Order, Respondent explained that the initial petition was dismissed by Respondent because it did not conform to pleading requirements and there was no bond filed. The Order of Dismissal entered by Respondent gave Petitioner a deadline to file an amended petition and a protest bond. Petitioner thereafter met that deadline, Respondent referred Petitioner's Amended Petition to DOAH, and this proceeding followed. 3 Petitioner's Amended Petition did not raise an issue as to DBE participation. COPIES FURNISHED: Deanna Hurt, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Ananth Prasad, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450 Gerald B. Curington, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 C. Denise Johnson, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399 Thomas H. Justice, III, Esquire Thomas H. Justice III, P.A 1435 Lake Baldwin Lane, Suite A Orlando, Florida 32814 Thornton J. Williams, Esquire Williams, McMillian, P. A. 119 South Monroe Street, Suite 200 Tallahassee, Florida 32399
The Issue The issue is whether the proposed award of Contract No. E1G23 to DeAngelo Brothers, Inc. d/b/a DBI Services Corporation (DBI) is contrary to the Department of Transportation’s governing statutes, rules, policies, or the specifications in the Request for Proposals (RFP).
Findings Of Fact On June 18, 2007, the Department issued RFP No. E1G23, which solicited proposals for “ultra asset maintenance” for Interstate 75 (I-75) and interchanges in Broward, Collier, Lee, Charlotte, Manatee, Desoto, and Sarasota Counties. The Department issued three addenda to the RFP. The addenda did not make any material changes that are pertinent to the issues in this proceeding. The Scope of Services for the RFP stated that for all roadways and facilities covered by the contract, the contractor will be responsible for performing all of the maintenance activities that would otherwise have been performed by the Department, including but not limited to, mowing the right-of- way, maintaining guardrails, fixing potholes, maintaining stormwater management facilities, cleaning and maintaining rest areas, tree trimming, and incident response and management. In the asset management industry, this type of contract is known as a comprehensive asset management contract because the contractor is responsible for all maintenance activities within the right-of-way “from fence to fence, including the fence.” The RFP states that the contract will be awarded to the responsive and responsible vendor whose proposal receives the highest total score, which is composed of a price score and a technical score. The price score is weighted 30 percent, and the technical score is weighted 70 percent. The vendor proposing the lowest price received the full 30 points for the price score. The other vendors’ price scores were calculated through a mathematical formula based upon the percentage that the vendor’s price exceeded the lowest price. The technical score was based upon a subjective evaluation of the proposals in four broad categories: administration plan (weighted 20 points); management and technical plan (weighted 30 points); operation plan (weighted 30 points); and compliance plan (weighted 20 points). There are sub-categories in each of those categories, with a specific number of points assigned to each sub-category. Five evaluators independently reviewed the proposals. The evaluators –- Jennifer Perry, Howard Summers, David Holden, Lance Grace, and Robert Mannix -- were Department employees selected based upon their familiarity with the areas and services covered by the contract. All of the evaluators attended the pre-bid conference, which was mandatory for prospective bidders. No questions or concerns were raised at the pre-bid conference or at any point prior to submittal of the proposals regarding the evaluators having experience with the prior I-75 contract or having been involved in the preparation of the RFP. Three companies -- ICA, DBI, and VMS, Inc. (VMS) -- submitted responses to the RFP. ICA is a Tennessee corporation. DBI is a Pennsylvania corporation. Both companies provide asset management services in Florida and around the country, but ICA has more experience than DBI in providing comprehensive asset management services. The price offered by ICA -- $89,200,300.01 -- was the lowest of the three vendors that responded to the RFP; the price offered by DBI -- $92,630,739 -- was approximately 3.8 percent higher. As a result, ICA received a price score of 30 and DBI received a price score of 28.89. Three of the five evaluators -- Ms. Perry, Mr. Summers, and Mr. Golden -- scored DBI’s proposal the highest. Two of the evaluators -- Mr. Grace and Mr. Mannix -- scored ICA’s proposal higher than DBI’s proposal, but they scored VMS's proposal the highest. None of the evaluators scored ICA’s proposal the highest. DBI’s proposal received an average score of 85.40 from the evaluators, and ICA’s proposal received an average score of 82.96. As result, DBI received a technical score of 59.78, and ICA received a technical score of 58.07. When the price scores and the technical scores were combined, DBI received the highest total score of 88.67. ICA was the second-ranked vendor with a total score of 88.07. VMS was the third-ranked vendor with a total score of 86.12.3 On August 21, 2007, the Department posted notice of its intent to award the contract to DBI. The initial posting erroneously identified the winning vendor as “DeAngelo Brothers, Inc. T/A Aguagenix, Inc.” rather than DBI. The contract administrator, Cheryl Sanchious, explained that this was a clerical error caused by the Department’s computer system and that it has been corrected in the system. ICA timely filed a notice of protest and a formal written protest challenging the award to DBI. ICA posted a cashier’s check in the statutorily required amount in lieu of a protest bond. After the protest was filed, the Department entered into temporary emergency asset management contracts for the roadways and facilities covered by contract at issue in this case. ICA was given the contract for Broward and Collier Counties because it was already providing asset management in those counties under the predecessor to the contract at issue in this case, No. BC680. DBI was given the contract for the other counties, Sarasota, Lee, Manatee, Charlotte, and Desoto. It is undisputed that ICA’s proposal was responsive to the RFP in all material respects. The focus of ICA’s protest is four-fold. First, ICA contends that DBI’s proposal is not responsive because it did not affirmatively state that it would grant a first right of refusal to RESPECT of Florida (RESPECT). Second ICA contends that DBI is not a “responsible vendor” and that the Department confused the concepts of “responsiveness” and “responsibility” in its review of the proposals. Third, ICA contends that the evaluation committee failed to prepare a technical summary as required by the RFP, and that its failure to do so was material because it would have brought to light the discrepancies in Ms. Perry's scoring. Fourth, ICA contends that Ms. Perry's scoring was flawed and out of sync with the other evaluators in several respects. Each issue is discussed in turn. Responsiveness / RESPECT First Right of Refusal Section 8.2 of the RFP provides that “[a] responsive proposal shall perform the scope of services called for in this Proposal Requirements [sic] and receive a Technical Proposal score of at least seventy (70) percent of the maximum attainable points established for scoring the Technical Proposal.” Section 17.1 of the RFP provides that “[d]uring the process of evaluation, the District Contracts Office will conduct examinations of Proposals for responsiveness to requirements of the Proposal Solicitation. Those determined to be non-responsive will be automatically rejected.” Section 16.5 of the RFP requires the proposal to “[u]se only statements of what the Proposer will or will not accomplish” rather than “words such as may, might, should, etc.” Section 8.5 of the RFP authorizes the Department to “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.” That section defines “minor irregularities” 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.” The Scope of Services for the RFP requires the contractor to “grant ‘Respect of Florida’ a first right of refusal” to provide maintenance services at rest areas. This was intended by the Department to be a mandatory requirement of the RFP, and was understood as such by ICA and DBI. RESPECT is a not-for-profit organization that employs disabled and disadvantaged individuals. RESPECT employees perform janitorial and grounds maintenance functions at rest areas, including one of the rest areas covered by the RFP. ICA’s proposal expressly states that “ICA will grant Respect of Florida first right of refusal on rest area janitorial work consistent with statewide maintenance practices.” DBI’s proposal does not include an affirmative statement that it will grant RESPECT a first right of refusal. However, DBI stated in its proposal that it “is currently in negotiation with [RESPECT] to expand their existing maintenance responsibilities for rest areas within the project limits” and that “DBI Services believes that expanding [RESPECT’s] responsibilities in the project is the right thing to do.” The absence of an affirmative statement in DBI’s proposal that it will grant RESPECT a first right of refusal was not material to the evaluators. For example, evaluator Robert Mannix testified that he “generally looked for more of the intent to give [RESPECT] the opportunity of making a bid rather than the specific language of right of first refusal.”4 Similarly Ms. Perry testified that she considered granting RESPECT a first right of refusal to be a requirement of the contract whether or not the contractor mentioned it in its proposal. Amy Burlarley-Hyland, director of asset management for DBI, testified that DBI intends to provide a first right of refusal to RESPECT and that, consistent with the statement in DBI’s proposal, DBI is “committed to expanding Respect’s responsibilities on this project.” She explained that she did not include an affirmative statement to that effect in the proposal because it is “a known requirement” that will be part of the contract by virtue of it being in the RFP. Mr. Rader, ICA’s executive vice president, testified that it is more costly to contract with RESPECT to provide maintenance services than to contract with another entity to provide those services. Ms. Hyland disagreed with that testimony, as did Ms. Perry. No documentation was provided to support Mr. Rader’s claim that it is more expensive to contract with RESPECT, and the evidence was not persuasive that DBI received a competitive advantage by not affirmatively stating in its proposal that it will grant a first right of refusal to RESPECT. The RFP does not require the vendor to expressly acknowledge and affirmatively agree to meet each and every mandatory requirement in the RFP. Indeed, if this were the test for responsiveness, ICA’s proposal would be nonresopnsive because it failed to expressly acknowledge and affirmatively agree to meet a number of the mandatory requirements in the RFP. DBI’s proposal complies with the intent of the RFP in regards to RESPECT. Its failure to specifically state that it will grant RESPECT a first right of refusal is, at most, a minor irregularity. Failure to Determine DBI’s Responsibility Responsiveness and responsibility are separate, but related concepts in the competitive procurement context. Section 287.012(24), Florida Statutes, defines “responsible vendor” to mean “a vendor who has the capability in all respects to fully perform the contract requirements and the integrity and reliability that will assure good faith performance.” Section 287.012(26), Florida Statutes, defines “responsive vendor” to mean “a vendor that has submitted a bid, proposal, or reply that conforms in all material respects to the solicitation.” In order to bid on certain Department contracts, a vendor has to be pre-qualified under Florida Administrative Code Rule Chapter 14-22. Pre-qualification serves as an advance determination of the vendor’s responsibility. Pre-qualification is generally not required in order to bid on maintenance contracts; bidders are presumed qualified to bid on such contracts. However, as noted in the Bid Solicitation Notice for the RFP, “certain maintenance contracts will contain specific requirements for maintenance contractor eligibility” if deemed necessary by the Department. This is such a maintenance contract. Section 7.1 of the RFP required the Department to determine whether the proposer is “qualified to perform the services being contracted.” That determination was to be made “based upon the[] Proposal Package demonstrating satisfactory experience and capability in the work area.” The RFP did not specify when or by whom this determination was to be made. The Department and DBI contend that the determination required by Section 7.1 is essentially a determination of whether the bidder is responsible, and that the determination is to be made by the evaluators during their scoring of the proposals. In support of that contention, the Department and DBI refer to Section 17.1 of the RFP, which provides that “[p]roposing firms must receive an average technical proposal score of at least (70) percent of the maximum attainable points established for scoring the Technical Proposal to be considered responsive.” Similar language is included in Section 8.2 of the RFP under the heading “Responsiveness of Proposals.” The interpretation of the RFP advocated by the Department and DBI is reasonable, and DBI’s proposal received an average score from the evaluators of 85.40, which exceeds the 70 percent threshold in Section 17.1 of the RFP. Indeed, each of the evaluators gave DBI more than 70 points for its technical proposal. The preponderance of the evidence presented at the final hearing supports the Department's implicit determination that DBI is “qualified to perform the services being contracted,” as required by Section 7.1 of the RFP. DBI has a 29-year history. It employs approximately 700 employees in 34 offices nationwide; it is the largest vegetation management company in the world; and it is ranked in the top five nationally in Pavement Maintenance Magazine. Even though DBI has less experience in comprehensive asset management contracts than does ICA, DBI has extensive experience in managing comprehensive activities under large contracts. DBI has managed over $400 million in performance- based contracts nationwide, including a $9 million comprehensive asset management contract with the Department in District 4 (US 27/Belle Glade area), and DBI’s director of asset management has extensive experience in highway and facility asset management in the private sector with DBI and VMS and in the public sector with the New York Department of Transportation. In sum, a determination that DBI is a responsible bidder was inherent in the Department’s decision to award the contract to DBI, which was based in large part on the technical score of its proposal by the evaluators, and the evidence presented in this de novo proceeding supports that determination. Therefore, even if, as ICA argues, the Department and DBI are improperly construing the word “responsive” in Section 17.1 of the RFP to mean “responsible,” ICA failed to prove that such error is material to the outcome of this proceeding. Failure to Prepare Technical Summary Section 17.1 of the RFP describes the evaluation process as follows: A Technical Evaluation Committee . . . will be established to review and evaluate each Proposal Package submitted in response to this Proposal Solicitation. The Committee will be comprised of at least five persons with background, experience, and/or professional credentials in relative service areas. The District Contracts Office will distribute to each member of the Committee a copy of each technical proposal. The Committee members will independently evaluate the Proposals on the criteria in the section below entitled “Criteria for Evaluation” in order to ensure that the Proposals are uniformly rated. The Committee will then assign points, utilizing the technical evaluation criteria identified herein and complete a technical summary. . . . . (Emphasis supplied). The District Contracts Office and/or the Project Manager/Technical Evaluation Committee will review and evaluate the price packages and prepare a summary of its price evaluation. Points will be assigned based on price evaluation criteria identified herein. During the process of the evaluation, the District Contracts Office will conduct examinations of Proposals for responsiveness to requirements of the Proposal Solicitation. Those determined to be non- responsive will be rejected. ICA contends that the evaluation committee failed to prepare a “technical summary,” which would have brought to light the scoring issues discussed below concerning Ms. Perry. The RFP does not define “technical summary” nor does it specify the form that the summary must take. The RFP does not specify how the evaluation committee as a whole would assign points to the proposals in light of the independent scoring mandated by Section 17.1 of the RFP. The evaluators did not assign points to the proposals as a committee, but rather independently scored the proposals. The evaluators did not meet as a committee to prepare a “technical summary.” Several of the evaluators testified that they considered the evaluation form that they completed for each proposal to be their “technical summary” for the proposal because the form included the scores assigned in each technical review category and summary comments about the proposal. The evaluators did not collectively discuss their scoring of the proposals after they completed their independent evaluations; they simply submitted their completed evaluation forms to Ms. Sanchious. Ms. Sanchious’ office prepared a spreadsheet summarizing the evaluators’ technical scoring of the proposals. The spreadsheet -– Joint Exhibit 33, titled “Proposal Evaluation/Breakdown Sheet” -- lists the scores awarded by each evaluator in each technical review category; calculates the total points awarded by each evaluator for each proposal; and calculates an “overall score” for each proposal by averaging the five evaluators’ scores for each proposal. This spreadsheet is more akin to a “technical summary” than is Joint Exhibit 21, which DBI and the Department contend is the “technical summary.” Indeed, Joint Exhibit 21 only includes the “overall score” and not the underlying data that was used to calculate that score. It was not unreasonable for the Department to calculate an “overall score” for each proposal by simply averaging the five evaluators’ scores for each proposal, and ICA failed to prove that the averaging being done by Ms. Sanchious’ office (instead of the evaluation committee) was a material deviation from the RFP. Indeed, ICA’s contention that discussion amongst the evaluation committee members to prepare the “technical summary” would have changed Ms. Perry’s scoring of ICA’s or DBI’s proposal is speculative, at best, in light of the findings below. In sum, the evaluation committee’s failure to prepare a “technical summary” as required by Section 17.1 of the RFP does not undermine the proposed award to DBI. Scoring by Jennifer Perry Ms. Perry was one of the five evaluators who reviewed the technical proposals submitted in response to the RFP. Ms. Perry is a licensed professional engineer. She has 10 years of work experience with the Department, and she currently serves as the assistant maintenance engineer for District 1. In that capacity, she is responsible for all forms of maintenance contracting in District 1, including routine maintenance and asset maintenance. Ms. Perry served for a time as the project manager for the existing asset management contract for I-75, which was held by ICA. As a result, she had the occasion to work with ICA employees and become familiar with ICA’s performance under that contract. There is no evidence that Ms. Perry is biased against ICA in any way. Indeed, she credibly testified that she had a good working relationship with ICA; that she had no major issues with ICA’s performance under the existing contract; and that she would have had no hesitation recommending that the contract be awarded to ICA if its proposal had received the highest score. Ms. Perry was heavily involved in the preparation of the RFP as a result of her position as assistant maintenance engineer for District 1. She was also involved in the selection of the evaluators. There is no Department rule or policy that prohibits a person from serving as an evaluator if he or she was involved in the preparation of the RFP. Likewise, the fact that Ms. Perry served as the project manager for the asset management contract held by ICA does not preclude her from serving as an evaluator. Indeed, Section 17.1 of the RFP specifically contemplates that the evaluators will have “background, experience, and/or professional credentials in relative service areas.” Similar language is contained in Section 287.057(17)(a), Florida Statutes. Ms. Perry spent between 10½ and 11 hours reviewing and scoring the proposals. She made detailed notes while she was scoring in order to capture her general impressions of each proposal and to serve as a reminder of issues to address with the vendor who was ultimately awarded the contract. Ms. Perry gave ICA’s proposal a score of 74. She gave DBI’s proposal a score of 86. Ms. Perry double-checked her scores before submitting her completed score sheets. She specifically went back over her scoring of ICA’s proposal after she noticed that she scored ICA lower than DBI and VMS because she thought she may have added wrong or overlooked something. She decided not to make changes to give ICA additional points just because she liked working with ICA. The main difference in Ms. Perry’s scoring of DBI's and ICA's proposals relates to Plan for Compliance with Standards (Plan for Compliance) section. She gave ICA 10 points for that section, and she gave DBI 20 points, which is the maximum available for that section. Each of the other evaluators gave ICA and DBI very similar scores in the Plan for Compliance section. The Plan for Compliance section describes the programs that the proposer intends to implement to ensure compliance with the applicable statutes, rules and Department policies. A proposer’s quality assurance/quality control (QA/QC) program is an important component of its plan for compliance. DBI gave the Plan for Compliance section significant emphasis because of the weight assigned to the section in the RFP. Ms. Burlarly-Hyland rewrote the section to make it more detailed because of her perception of its importance to the Department. ICA did not place as significant of an emphasis on the Plan for Compliance section in its proposal as did DBI. Indeed, ICA’s position in this case is that “a plan for compliance is quite standard and one would expect to see very similar plans and therefore very similar scores among the proposals.” DBI references its QA/QC program several times in the Plan for Compliance section, but the detailed description of the QA/QC program is included in the Management and Technical Plan section of DBI’s proposal. Ms. Perry relied on the description of the QA/QC program in the Management and Technical Plan section of DBI’s proposal in her scoring of the Plan for Compliance section. Similarly, in her scoring of the ICA and VMS proposals Ms. Perry did not limit her scoring of a particular section of the proposal to information presented in that section. Instead, she looked at the proposals in their entirety and “gave them credit . . . in any section that [she] felt it applied to because . . . [i]f they have a good idea, they need credit for it.” Ms. Perry explained that that she scored DBI higher than ICA in the Plan for Compliance section because, even though both proposals discussed their QA/QC program, DBI went into much greater detail about its program and its plan for compliance generally. Ms. Perry viewed the level of detail provided by DBI regarding its QA/QC program and its plan for compliance generally as an indication of the importance of these matters to DBI. Some of the material differences identified by Ms. Perry were DBI’s commitment to do its first QA/QC within the first three months instead of waiting six months as ICA proposed; DBI’s identification of a high-level person, the project manager, as being responsible for compliance; DBI’s commitment to provide its QA/QC reports directly to the Department; DBI’s “corporate culture concept” program that is similar to the Department’s “grassroots” program; DBI’s more detailed description of its training programs; and DBI’s commitment to have all of its herbicide applicators licensed by the state, not just in compliance with state law. Ms. Perry’s rationale for her scoring differences on the Plan for Compliance section is generally consistent with another evaluator’s “overall impression” that “the ICA proposal did not offer a lot of new innovation or continuous quality improvement over the level of performance that we had already experienced and . . . we were hoping to have in reletting the new contract rather than renewing the existing contract ”5 ICA also takes issue with Ms. Perry’s scoring of the ICA and DBI proposals in the DBE/RESPECT/Agency Participation section; the Proposed Facilities Capabilities section; the Routine/Periodic Maintenance Operations section; and the Rest Area Maintenance Operations section. Ms. Perry gave DBI’s proposal five points and ICA’s proposal three points for the DBE/RESPECT/Agency Participation section. She explained that she scored DBI higher than ICA in this section because DBI provided more detail on how it would help develop disadvantaged business subcontractors, including training them on compliance with Department standards and helping them obtain work. She recognized that ICA also had a subcontractor development program, but she was more impressed with DBI's proposal because “DBI really went into a lot more detail in what they were going to do.” Ms. Perry gave DBI’s proposal five points and gave ICA’s proposal three points for the Proposed Facilities Capabilities section. She explained that she scored DBI higher than ICA in this section because of the amount and type of equipment that DBI was going to make available for the contract and because of DBI’s commitment to put an office on the Alligator Alley corridor. Ms. Perry felt that the Alligator office was “very important” because that area is isolated and having an office in the area would make it easier for the contractor to respond quickly to problems. ICA’s proposal did not commit to put an office on the Alligator Alley corridor. Ms. Perry gave DBI’s proposal ten points and gave ICA’s proposal six points for the Routine/Periodic Maintenance Operations section. She explained that she scored DBI higher than ICA in this section because DBI’s proposal included a week- by-week maintenance plan that detailed the specific activities that DBI would be working on each week and it also included detailed charts identifying the efforts that DBI would undertake to meet the requirements of the Department’s maintenance program. The description of the maintenance plan in ICA’s proposal was not nearly as detailed, and Ms. Perry was so impressed with DBI’s maintenance plan that she provided copies of the plan to the other districts’ operation centers as an example of the type of detained planning that she felt the Department should move towards. Ms. Perry scored ICA and DBI the same for the Rest Area Maintenance Operation section. She explained that even though the proposals focused on different aspects of their rest area maintenance plans, the plans were roughly equivalent overall. For example, DBI committed to maintain the rest areas in accordance with the Department’s standard maintenance requirements and, like ICA, DBI will handle customer comment cards from rest areas through its QA/QC program. Ms. Perry scored ICA higher than DBI in areas that she found ICA’s proposal to be better than DBI’s proposal. For example, in the Identification of Key Personnel Section, she gave ICA four points and DBI three points; in the Contractor Experience section, she gave ICA the maximum five points and DBI two points; in the Bridge Inspection section, she gave ICA the maximum 10 points and DBI seven points; in the Incident Response Operations section, she gave ICA nine points and DBI eight points; and in the Bridge Maintenance Operations section, she gave ICA the maximum five points and DBI three points. Ms. Perry’s explanation of her scoring decisions was reasonable and supported by the preponderance of the evidence presented at the final hearing. The evidence fails to establish that Ms. Perry's scoring of the proposals was arbitrary, capricious, or otherwise improper.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order dismissing the Formal Protest Petition filed by ICA, and awarding Contract No. E1G23 to DBI. DONE AND ENTERED this 14th day of December, 2007, 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 14th day of December, 2007.
Findings Of Fact The following findings of fact, stipulated to by the parties (and edited by the undersigned where appropriate to reflect that the facts are common to both Respondents), are hereby accepted: USTC is incorporated under the laws of New York State and has its principal place of business at 1415 Park Avenue, Hoboken, New Jersey. It performs testing and inspection services in most of the states in the continental United States. USTC is registered and qualified to do business in the State of Florida. The primary activities of USTC in the State of Florida are crane training, inspection and certification services, project inspections, quality control, and non- destructive testing inspection performed for utility and petrochemical companies. USTC (trade name) business in Florida is conducted under several trade names including: Crane Inspection & Certification Bureau R&T Supply Company SGS Industrial Services USTC's wholly owned subsidiaries, all of which have or may in the future conduct business in the State of Florida, are: Instrument Marketing Services, Inc. Nationwide Consumer Testing Institute, Inc. Qualitiest, Inc. Examples of Florida public entities for whom USTC has rendered services are: Brevard County Maintenance Department City of Lakeland Florida Department of Transportation Orlando Utilities Company [sic] Orange County Port Everglades Port Authority Tampa Port Authority USTC has a large number of commercial customers who also do business with Florida public entities. In addition to its wholly owned subsidiaries, affiliates of USTC in the United States include the following corporations which are not controlled by USTC, and were not involved with the events leading to the criminal conviction of USTC: CH&A Corporation Commercial Testing & Engineering Co. GAB Business Services, Inc. INS Investigation Bureau, Inc. Intermodal Transportation Services, Inc. SGS Control Services, Inc. SGS Government Programs, Inc. SGS International Certification Services, Inc. SGS North America, Inc. The affiliates have or may in the future do business with Florida public entities or with commercial customers who do business with Florida public entities. Crane Inspection and Certification Bureau, located at 5874 South Semoran Boulevard, Orlando, Florida 32812, is a Division of USTC owned 100 percent by USTC. CICB inspects cranes for a variety of city, county, and state authorities in Florida. Inspection services are performed on an on call basis and pursuant to award of competitive contracts. CICB conducts crane safety training programs for State of Florida, local, county, and state employees. On April 17, 1991, USTC was convicted of the commission of a public entity crime as defined within subparagraph 287.133(1)(g), Florida Statutes. Exhibit A Pursuant to the Plea Agreement and Information attached as Exhibits B and C, USTC pled guilty in United States District Court for the District of New Jersey to one count of making false statements to a federal official in violation of 18 U.S.C. s. 1001. On July 9, 1992, Mr. Richard Posner a former Vice President of USTC, was convicted of a public entity crime as defined within subparagraph 287.133(1)(g), Florida Statutes, pursuant to an Information and Plea agreement. Exhibits D, E, F Mr. Posner pled guilty in United States District Court for the District of New Jersey to one felony count of making false statements to a federal official in violation of 18 U.S.C. s. 1001. The conviction of Mr. Posner was derived from the same investigation that resulted in the conviction of USTC. Mr. Posner entered into an agreement effective upon his conviction, with the U.S. Environmental Protection Agency, which barred him for life from Federal Contracting activities. Exhibit G Mr. Posner was placed on the Florida Convicted Vendor List, by Florida Department of Management Services Order dated May 17, 1993. Exhibit H U.S. Testing, Inc. was suspended from Federal contracting by the U.S. Environmental Protection Agency on April 24, 1990. The suspension was removed April 4, 1991. Exhibit I Pursuant to subparagraphs 287.133(3)(a) and (b), Florida Statutes, USTC made timely notification to DMS and provided details of the convictions. Exhibit J On February 10, 1994, DMS issued a notice of intent pursuant to subparagraph 287.122(3)(e)1, Florida Statutes. Exhibit K On February 28, 1994, pursuant to subparagraph 287.133(3)(e)2, Florida Statutes, USTC and CICB timely filed petitions for formal administrative hearing pursuant to subparagraph 120.57(1), Florida Statutes, to determine whether it is in the public interest for USTC and/or CICB to be placed on the State of Florida Convicted Vendor List. Exhibit L Subparagraph 287.133(3)(e)3, Florida Statutes, establishes factors which, if applicable to a convicted vendor, will mitigate against placement of that vendor upon the convicted vendor list. Subparagraph 287.133(3)(e)3d, Florida Statutes, established "[p]rompt or voluntary payment of any damages or penalty as a result of the conviction" as a factor mitigating against placement on the convicted vendor list. Pursuant to its Plea Agreement, USTC has made restitution to the federal government of all amounts it received under two federal Environmental Protection Agency (EPA) contracts totaling $913,717.74. Exhibit M USTC also paid a fine in the amount of $100,000 and contributed $200 to the crime victims' reimbursement fund. Exhibit M Subparagraph 287.133(3)(e)3e, Florida Statutes, establishes "[c]ooperation with state or federal investigation or prosecution of any public entity crime" as a mitigating factor. (a) In open court the Assistant United States Attorney for the District of New Jersey informed the Court of the cooperation of USTC with the federal investigation. Furthermore, the Assistant United States Attorney wrote to the EPA advising it of the cooperation of USTC. Exhibit I, pp. 18-19 USTC fully cooperated with DMS in connection with its investigation initiated pursuant to Section 287.133, Florida Statutes. Subparagraph 287.133(3)(e)3f, Florida Statutes, establishes "[d]isassociation from any other persons or affiliates convicted of the public entity crime" as a mitigating factor. On July 9, 1992, Richard Posner, former Vice President of the Chemical Services Division of USTC was also convicted in United States District Court for the District of New Jersey on one count of making false statements to a federal official in violation of 18 U.S.C. s. 1001 in connection with events related to the conviction of USTC. See Exhibit D Mr. Posner is the only person thus far charged or convicted of any crimes pertaining to the conviction of USTC. Mr. Posner left the employment of USTC in 1989, before the EPA investigation of USTC commenced. Subparagraph 287.133(3)(e)3g, Florida Statutes, established "[p]rior or future self-policing by the person or affiliate to prevent public entity crimes" as a mitigating factor. (a) USTC has instituted a corporate Code of Business Conduct, a corporate responsibility program and taken other steps to prevent a recurrence of the events resulting in its conviction. Those steps were reviewed in administrative proceedings hereinafter described, and were contributing factors to the decisions therein. Subparagraph 287.133(3)(e)3h, Florida Statutes, establishes "[r]einstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding" as a mitigating factor. On April 23, 1991, the EPA lifted the administrative suspension of USTC. It is now under no constraints whatsoever as a federal contractor. See Exhibit I In December 1991, after an administrative proceeding, the City of New York lifted a debarment from contracting with City agencies which had been imposed because of the EPA suspension. USTC is now under no constraints whatsoever as a contractor with agencies of the City of New York. Exhibit O Subparagraph 287.133(3)(e)3i, Florida Statutes, established "[c]ompliance by the person or affiliate with the notification provisions of paragraph (a) or paragraph (b)" as a mitigating factor. Exhibits J, P This joint stipulation provides a full and complete factual basis for determining whether USTC and/or CICB should be placed on the convicted vendor list.
The Issue Whether the petitioner is entitled to credit for the answers given to the challenged questions in the General Contractor’s examination administered October 18, 1995.
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: The Department of Business and Professional Regulation, Construction Industry Licensing Board, is the state agency with jurisdiction over the examination and regulation of general contractors in the State of Florida. Sections 489.107(4) and .113(1), Florida Statutes. Mr. Simmons sat for the General Contractor examination on October 18, 1995, and received a failing grade of 68.75 percent on the business and financial administration portion of the examination. Even though he passed the other two portions of the examination, Mr. Simmons failed the examination as a result of the failing grade on this portion of the examination. Mr. Simmons subsequently filed a timely challenge to unspecified test questions on the business and financial administration portion of the examination. He presented evidence at the hearing concerning the sufficiency of his answers to questions 13 and 22 of the financial administration section of the examination and claimed that he would have presented evidence relating to questions 18 and 39 of the business administration section but could not because he was not certain that the questions included in the review materials provided to him by the respondent were the same as the questions included in the test booklet he used on October 18, 1995. Question 13 of the financial administration section of the examination is an objective, multiple choice question. The applicant is to choose the correct answer from among four choices. The correct answer to question 13 is “C," but Mr. Simmons incorrectly chose “B.” Question 22 of the financial administration section of the examination is an objective, multiple choice question. The applicant is required to choose the correct answer to the question from among four answers provided and is to choose the correct answer based only on the information included in the question. The correct answer to question 22 is “C," but Mr. Simmons incorrectly chose “A.” Mr. Simmons failed to prove that questions 18 and 39 of the business administration section of the examination included in the review manual provided to him by the respondent were not the same questions included in the test booklet he used on October 18, 1995. Because he failed to present any evidence regarding the sufficiency of his answers to these questions, he is deemed to have abandoned any substantive challenge to them. Question 13 of the business administration section of the examination is clear and unambiguous, and only one correct answer was included among the answer choices. The correct answer is found in the reference material which Mr. Simmons was permitted to use while he was taking the examination. The respondent correctly gave no credit to Mr. Simmons for his answer to this question because it was the wrong answer. Question 22 of the business administration section of the examination is clear and unambiguous, and only one correct answer was included among the answer choices. The method for determining the correct answer from the information provided in the question is contained in the reference materials Mr. Simmons was permitted to use while he was taking the examination. The respondent correctly gave no credit to Mr. Simmons for his answer to this question because it was the wrong answer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, issue a final order dismissing Alfred Simmons’s challenge to the subject examination and that the examination questions and answers provided at the hearing be sealed and not open to public inspection. DONE AND ENTERED this 3rd day of January, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1997. COPIES FURNISHED: Alfred Simmons 7755 West Kismet Street Miramar, Florida 33023 R. Beth Atchison, Assistant General Counsel Department of Business and Professional Regulation Construction Industry Licensing Board Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
The Issue The issue presented for decision herein is whether or not the Petitioner is eligible to sit for the Professional Engineers examination.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. On December 12, 1983, Petitioner, Craig S. Smith, made application to the Florida Board of Professional Engineers to sit for the April, 1984 professional engineering examination. Respondent, Board of Professional Engineers, reviewed Petitioner's application in their meeting on February 19, 1984 and denied his reguest to sit for the April, 1984 examination. The basis for the denial was that Petitioner failed to qualify under the ten-year provision which requires ten years of experience in engineering pursuant to Chapter 471, Florida Statutes, and Rule chapter 21H, Florida Administrative Code. The Board determined that Petitioner did not satisfy the requisite experience in the areas of engineering, responsible charge and engineering design. Specifically, Respondent determined that Petitioner had 82 months of creditable service toward the 120 month requirement and no experience in the area of engineering design. Petitioner's application reveals that he was employed by Florida Testing and Engineering, Inc., 6784 Northwest 17 Avenue, Ft. Lauderdale, Florida from May, 1971 to May, 1973 in the position of a driller crew chief. His professional duties during that period include the following: subsurface investigations for foundation design; securing and classifying subsurface samples in accordance with standard procedures of ASTM and AASHTO; overall responsibility for drilling operations and sampling equipment (standard penetration tests using either split barrel sampler, shelby tube, hollow stem flight auger, steel casing, drilling mud and rock coring, when required). From May, 1973 to January, 1979, Petitioner was employed by the same employer but held the position of laboratory and field engineering technician. His specific job duties include various construction sampling, testing and inspection as follows: ASPHALT asphaltic design mixes conforming to Florida Department of Transportation and FAA criteria; quantitative extraction of bitumen from bitumen paving mixtures; bulk specific gravity of compacted bituminious mixtures; compressive strength of bituminious mixtures; sampling bituminious paving mixtures; sampling bituminious materials; (o) bituminious mixing plant inspections; coating and stripping of bitumen-aggregate; determining degree of particle coating of bituminous-aggregate mixtures: maximum specific gravity of bituminous paving mixtures; specific gravity of solid pitch and asphalt displacement; determining degree of pavement compaction of bituminous paving mixtures; resistance to plastic flow of bituminous mixtures using marshall apparatus; resistance to deformation and cohesion of bituminous mixtures by means of hveem apparatus. CONCRETE compressive strength of cylindrical concrete specimens; making and curing concrete compressive and flexural strength specimens in the field and laboratory; obtaining and testing drilled cores and sawed beams of concrete; flexural strength of concrete (using simple beam with third point loading); slump of Portland cement concrete; weight per cubic foot, yield, and air content (gravimetric) of concrete; (q) sampling fresh concrete; measuring length of drilled concrete cores; air content of freshly mixed concrete by the pressure method; securing, preparing and testing specimens of lightweight insulating concrete; air content of freshly mixed concrete by the volumetric method; checking approximate strength of hardened concrete by the Swiss hammer method; cement content of hardened Portland cement concrete; specific gravity, absorption and voids in hardened concrete; inspection and testing agencies for concrete materials as used in construction. SOILS investigating and sampling soils and rocks for engineering purposes; dry preparation of disturbed soil and soil aggregate samples for test; particle size analysis of soils; determining the liquid limit of soils; determining the plastic limit and plasticity index of soils; determining the field moisture equivalent of soils; moisture-density relations of soils using a 5.5 lb. rammer and a 12 in. drop; specific gravity of soils; moisture-density relations of soil-cement mixture; cement content of soil cement mixture; wet preparation of disturbed soil samples for test; moisture-density relations of soils using a 10 lb. rammer and an 18 in. drop; density of soil in place by the sand-cone method; the California bearing ratio, the line-rock bearing ratio; unconfined compressive strength of cohesive soil; permeability of granular soils (constant head) one-dimensional consolidation properties of soils; repetitive and nonrepetitive static plate load tests of soils and flexible pavement components, for use in evaluation and design of airport and highway pavements; determination of moisture in soils by means of a calcium carbide gas pressure moisture tester; bearing capacity of soil for static load on spread footings; density and moisture content of soil and soil- aggregate in-place by nuclear methods (shallow depth); classification of soils and soil aggregate mixtures for highway construction purposes; determining the Florida bearing ratio test (Florida Department of Transportation) determining the calcium carbonate content for base course materials (Florida Department of Transportation). AGGREGATES sampling stone, slag, gravel, sand, and stone block for use as highway materials; amount of material finer than 0.075 mm sieve in aggregate; unit weight of aggregate; voids in aggregate for concrete; organic impurities in sands for concrete; sieve analysis of fine and coarse aggregates; mechanical analysis of extracted aggregate; sieve analysis of mineral filler; specific gravity and absorption of fine aggregate; specific gravity and absorption of coarse aggregate; resistance to abrasion of small size coarse aggregate by use of the Los Angeles abrasion machine; soundness of aggregate by use of sodium sulfate or magnesium sulfate; clay lumps and friable particles in aggregates; lightweight pieces in aggregate; surface moisture in fine aggregate; reducing field samples of aggregate to testing size; total moisture content of aggregate by drying. MISCELLANEOUS percent of elongation, yield and tensile strength of steel members; compressive strength of hollow load bearing masonry units; inspection tests, including the inspection of pressure grout to insure proper distribution for foundation design; inspection and testing agencies for reinforced concrete culvert, storm drain and sewer pipe as used in construction; inspection and testing amenies for precast and prestress oiling members; From January of 1979 through January of 1982, Respondent held the position of supervisor for the same employer, Florida Testing and Engineering, Inc. During that period, he was in charge or was otherwise overall responsible for field and laboratory operations, prepared engineering reports, analyses, recommendations and design for various construction projects; Fort Lauderdale-Hollywood International Airport-Resurface Requisition No. 14905 and No. 29019 Fort Lauderdale-Hollywood International Airport- ADAP No. 06-12-0025-10 R/W and T/W Improvements and Resurfacing Fort Lauderdale-Hollywood International Airport - ADAP No. 06-12-0025-11 R/W and T/W Improvements and Resurfacing Key West International Airport - ADAP No. 06-12-0037-08 Fort Lauderdale Executive Airport Project No. 7155 City of Fort Lauderdale Parking Garage Project No. 7071 City of Fort Lauderdale 5 Ash Waste Water Treatment Plant Project No. 7642 From January of 1982 to the present time, Respondent formed his own company and holds the position as President of that firm (Eastcoast Testing and Engineering, Inc., 430 Northwest Flagler Drive, Fort Lauderdale, Florida 33301). Respondent is responsible for all phases of construction materials, testing, analysis, inspections, evaluations, quality control and quality assurance. The laboratory personnel and facilities of Eastcoast Testing and Engineering, Inc. has been inspected by the Cement and Concrete Reference Laboratory at the National Bureau of Standards. It is accredited by the Department of Commerce, National Voluntary Laboratory Accreditation Program for selected test methods of freshly mixed field concrete. Eastcoast was awarded the annual testing contract for the City of Fort Lauderdale during its first year of operation. During his tenure as an employee of Florida Testing and Engineering, Inc., Petitioner planned and implemented testing programs for the purpose of developing design criteria; implemented investigation and testing programs for the purpose of determining the cause of failures; prepared reports documenting material test data; and assisted in the preparation of reports for engineering evaluation under the guidance of a professional engineer. (See Petitioner's Exhibit No. 1.) For Petitioner's experience at Florida Testing during the period 1971 to 1973, Respondent determined that "zero time" was credited for that experience based on the Board's determination that Petitioner's work was more a "technician's job than engineering-related job." (Testimony of Board member William B. Bradley, Tr. page 16.) For Petitioner's experience during the period Nay, 1973 to January, 1979, Respondent allotted fifty percent or 34 of the 68 months experience that Petitioner served in that position. The Board determined that the "in-house testing" would have a lot more association with normal engineering procedures than Petitioner's earlier work. (Tr. 17.) The Board considered the technical testing and reporting thereof that took place in the laboratories was more responsible for engineering and, therefore, creditable as opposed to Petitioner's field work. (Tr. 17-18.) Again, for the period 1979 through 1992, Respondent gave Petitioner 59 percent credit for a total of 18 months of the 3 years in question. For the period 1979 through 1982, the Board determined that Petitioner was not essentially doing anything different but, rather, that he was "in charge of people now; he is preparing engineering reports here which I assume Mr. Winterholler signed." For that service, Petitioner was given credit for 18 of those 36 months. From the period of January, 1982 to the present time, the Board gave Petitioner 199 percent credit because, as President of his own firm, he would be more involved and would have more responsibility for the actions of his testing laboratory and, therefore, entitled to full credit for that time. (Testimony of Bradley at Tr. page 21.) Finally, Mr. Bradley determined that be saw no design engineering in the Petitioner's submissions because designing is "actually putting onto paper what's going to be there." (Tr. page 29.)
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 finding Petitioner eligible to sit for the next regularly scheduled Professional Engineers examination based on his compliance with the ten (10) year requirement of Subsection 471.013(1)(a)3., Florida Statutes. DONE and ORDERED this 30th day of October, 1984, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 31st day of October, 1984.
Findings Of Fact The Respondent, at all times material to the Administrative Complaint in this proceeding, was a land surveyor licensed by the State of Florida, having been issued license number 1305. The Respondent is also a licensed professional engineer and a licensed architect. The Petitioner is an agency of the State of Florida charged under Chapter 472, Florida Statutes, and appurtenant rules with the licensure and regulation of licensure status of land surveyors in Florida and the regulation and enforcement of their practice methods and standards. The Board of Land Surveyors published "Minimum Standards for Land Surveyors (Rule 21HH-6) effective September 1, 1951. The Respondent was unaware of the promulgation of those minimum standards. The Respondent had not attended meetings of the "Manasota" Chapter of the Florida Society of Professional Land Surveyors at which those standards were discussed and a checklist for the standards was distributed. On August 24, 1982, the Respondent prepared a land survey of a part of Lot 306, Overbrook Gardens, in Sarasota County. The survey was submitted to the Sarasota County Building Department in connection with an application for a building permit pertaining to that real property, filed on August 26, 1982. The offenses charged are alleged violations of the minimum standards with respect to that survey. The Respondent's client had delivered to him a survey prepared by Lemonde Surveying, Inc., of Port Charlotte, Florida, which was prepared on February 28, 1980. That survey contained a metes and bounds land description. The client engaged the Respondent to survey the same parcel of land with that description and provide a survey drawing to be used in conjunction with an application for the subject building permit. The survey gas not certified by the Respondent in accordance with minimum standards. The Respondent admitted this and it was undisputed that the signature and seal of fixed on the survey complied with the legal requirements enforced before the adoption of the abovementoned minimum standards, of which the Respondent was unaware. The Respondent admitted to failure to refer to all sources of information upon which the survey was predicated. The Respondent used a legal description from a previous survey provided him by Darrell Newell, the contractor who was agent for the owner of the property. The survey the Respondent submitted to the building department only showed the name of the owner. The older survey submitted by the Respondent's client was his only source of information in this regard. The parties stipulated that the allegation regarding failure to show measured distances to the nearest intersection was incorrect and that indeed the Respondent had shown the distance to the nearest intersection. The Respondent failed to show the location of a telephone company underground terminal pedestal and an abandoned wire fence of unstated dimensions which is outside the surveyed property near the north and east boundaries. The fence does not encroach on the surveyed property at all. The telephone terminal pedestal is approximately one foot or less in height, located just inside the northerly boundary of the property, approximately midway between the two northerly corners. The telephone terminal was not visible at the time of the survey due to high grass, weeds, and undergrowth covering the property when the fieldwork was conducted by the Respondent's survey party chief. The triangular parcel of property involved was located with reference to an established, identifiable real property corner. All three corners were monumented prior to the survey by the Respondent, so that the location of boundaries near the abandoned, partial, non-encroaching fence could be established with reasonable certainty. On September 15, 1932, personnel of the county building department charged with the responsibility of issuing the building permit for the property requested advice with regard to the efficacy of Respondent's survey from Mr. Emerson, the County Surveyor, who testified for the Petitioner. Mr. Emerson spoke with the Respondent by phone and mailed him copies of the "minimum standards" and the "Surveyor's Checklist" of the Manasota Chapter of the Florida Society of Professional Land Surveyors, which relates to those minimum standards in the rule cited below. The Respondent then promptly and voluntarily prepared a new survey which fully complied with those minimum standards which he had at that point first become aware of, and the building permit was duly issued to the Respondent's client. The Respondent's client's interests were not shown to be prejudiced and the complaint to the Board of Land Surveyors did not emanate from the Respondent's client, but rather from Mr. Emerson of-the county building department, who did not bother to consult the Respondent or obtain his explanation prior to lodging the complaint with the Board. The survey originally submitted to the Sarasota Count Building Department would have been adequate support for the issuance of the building permit before adoption of the minimum standards. The survey was shown to be totally adequate in terms of its substance and reflection of technical surveying competence, as opposed to the particular format prescribed by the minimum standards. This is the first disciplinary action ever taken against the. Respondent as a land surveyor licensee, and the Respondent's practice of his profession has always been characterized by a high degree of technical competence and professional integrity.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Respondent, William J. Lindh, be accorded the penalty of a private, written reprimand for violation of Rule 21HH-6.03(1) and (6),,Florida Administrative Code, and Section 472.033(1)(g) , Florida Statutes (1951) , and that the Administrative Complaint, in all other respects, be dismissed. DONE ADD ENTERED this 31st day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1983. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles J Cheves, Esquire Cheves & Rapkin 341 West Venice Avenue Venice, Florida 33595 Allen R. Smith, Jr., Executive Director Board of Land Surveyors Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF LAND SURVEYORS DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE NO.: 83-512 vs. LICENSE NO: 1308 WILLIAM J. LINDH, Respondent. /
