The Issue The issues presented for determination at the hearing are as follows: 1/ Whether respondent Department of Transportation (D.O.T.) abused its discretion or acted in bad faith, arbitrarily, capriciously, or under a misconception of law in rejecting all bids received on the subject project on December 21, 1977. Whether the decision of the respondent D.O.T. to reject all bids was made in violation of Florida's Government in the Sunshine Law, F.S. s286.011.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: By a "notice to contractors" dated November 24, 1977, the respondent D.O.T. advertised that it would receive bids on December 21, 1977, from qualified contractors for various construction and maintenance programs. The project which is the subject of this proceeding was contained in this notice, identified as "Gadsden County: Federal Aid Project No. I-10-3(31)157 Contract II (Job No. 50001-3423) SR 8 (I-10)." This project involved the paving of a certain stretch of Interstate Highway 10 in Gadsden County, which stretch was the last remaining unopen portion of I-10. In addition to a short summary of the contents of the project the notice on this project contained the following language which was underlined and capitalized in the notice: NOTE: A PRE-BID CONFERENCE ON THIS PROJECT WILL BE HELD ON WEDNESDAY, DECEMBER 14, 1977, AT 10:00 A.M. IN ROOM 301 OF THE HAYDON BURNS BUILDING, 605 SUWANNEE STREET, TALLAHASSEE, FLORIDA. ALL POTENTIAL BIDDERS WILL BE RE- QUIRED TO ATTEND. NOTE: ON-THE-JOB TRAINING WILL BE REQUIRED FOR THIS PROJECT. Mr. Henry Eugene Cowger, deputy state construction engineer for the D.O.T., made the initial decision to require attendance at a prebid conference for this project, although he himself did not draft the language used in the notice. Cowger felt that a prebid conference would be valuable to bidders and the Department due to the uniqueness of this particular project with regard to the requirements concerning maintenance of traffic and work progress. More specifically, the contract called for a close working relationship and cooperation with the first stage contractor on this stretch of road. The first stage contractor is respondent/intervenor White. Also, it was anticipated that the project would be opened in sections with unusual traffic requirements so that the entire project could be utilized in a limited fashion. Mr. Cowger instructed William F. Ray, the Department's area construction engineer, to arrange for and conduct the prebid conference. No specific instructions were given to Mr. Ray as to which provisions of the contract were to be discussed at the conference. Cowger felt that Ray was knowledgeable with the project and therefore that he needed no instructions. The prebid conference was held as scheduled on December 14, 1977. Representatives of six different construction companies attended, including a representative from respondent White Construction Company. Through neglect or oversight, petitioner Couch did not attend the conference. A memorandum to the file from Mr. Ray indicates that the following occurred at the conference: A statement was made at the beginning of the meeting by W. F. Ray that nothing said by any person at the meeting would change or modify any part of the contract documents. Certain portions of the special Provisions per- taining to maintenance of traffic and limitations of work areas were read and discussed. It was agreed by those present that the intent of these Specials Provisions was clear and under- standable. Mr. McRae of H.D.W. stated that the unknown delay times built into this project would result in much higher than normal bids and his company would probably not enter a bid. After a short discussion of the terms of the contract, the meeting was adjourned. The conference lasted from thirty to forty-five minutes. At the hearing, Mr. Ray related the questions he could remember which were asked by the contractors. It was admitted that virtually all of the provisions and expectations, unique or otherwise, were fully spelled out in the contract documents. Most of the inquiries at the conference related to the absorption of certain maintenance and traffic costs and responsibilities between the contractor and the D.O.T. In each instance, it was disclosed that the D.O.T. would be responsible for these unless the contract specifically provided otherwise. Questions regarding the sequence of operations and the phasing of the work with the first stage contractor were not specifically answered by D.O.T. representatives. Of the three contractors who submitted bids on the subject project on December 21, 1977, only respondent/intervenor White had attended the December 14th rebid conference. Joseph F. Villadsen, petitioner's engineering division vice president, had visited the site of the project and had studied the contract provisions, which appeared clear to him. In numerical order, the bids submitted on December 21, 1977, were as follows: $1,410,730.72 - - petitioner Couch $1,514,272.63 - - respondent/intervenor White $1,579,168.72 - - Contee Sand and Gravel Company, Inc. The respondent has an Awards Committee composed of five executives from the D.O.T. This Committee generally meets once a month to review bids and make a recommendation to respondent's Secretary on the award of contracts for some thirty-five to fifty projects per month. Although Secretary Webb has the authority to make an independent decision and/or to reject the recommendations of the Awards Committee with regard to the acceptance of bids, he could not recall ever having done so. On the afternoon of December 21, 1977, the same day as the bids were received, Mr. Jay Brown, respondent's director of road operations and chairman of the Awards Committee, learned from two representatives of White that the apparent low bidder, petitioner Couch, had not attended the prebid conference. He thereupon called together those members of the Awards Committee who were in the building at that time to discuss what should be done. Brown also counseled with P.E. Carpenter, the division administrator for the Federal Highway Administration, to determine the extent of the federal participation in funding if a bid other than the low bid were accepted. Awards Committee members Brown, Sill Ekey, Peter J. White and Willis Armstrong met on December 21 and 22, 1977. In reaching a determination as to their recommendation to the Secretary, the committee members considered three alternatives -- awarding the contract to Couch as the apparent low bidder, awarding the contract to White as the next lowest bidder and as the only bidder who attended the prebid conference or rejecting all bids received and readvertising for new bids. Each alternative was considered a viable one by the committee members. Although the members felt that the requirement of attendance at a prebid conference was a reasonable requirement due to the uniqueness of the project, no inquiry was made as to what actually transpired at the conference. Nor was any inquiry made as to a reason for petitioner's nonattendance. It was the unanimous decision of those Committee members present that it would best serve the interests of the State to reject all bids and proceed to readvertise. This decision to recommend rejection and readvertisement was based upon several reasons. The prime consideration was that this project involved the last remaining unopen link in Interstate Highway 10 and time was of the essence. It was felt that if the contract were awarded to Couch or to White, there would be litigation causing delay to the completion of Interstate 10. The Committee members were also concerned with the significant amount of difference between the bids of Couch and White. Rejecting all bids appeared to the Committee members to be the "cleaner" way to go. Mr. Brown testified that the D.O.T. does not generally accept the bid where only one bid is received. Here the apparent low bidder and the highest bidder were considered irregular for failure to attend the prebid conference. Thus, the Department was left with only one bid. Through Mr. Brown, Secretary Thomas Webb, Jr., was telephonically notified of the recommendation of the Awards Committee. Mr. Webb concurred with the Committee's recommendation because he was concerned with a possible delay to the project due to litigation were the bid to be awarded to either Couch or to White. Thereafter, the bidders were notified by telegram that all bids on the project had been rejected due to the failure of the low bidder to attend the prebid conference, and that the project would be readvertised. On December 29, 1977, Couch filed a "complaint" with the D.O.T. requesting a hearing pursuant to F.S. s120.57 on the issue of whether the D.O.T. lawfully rejected Couch's bid on the subject project. By Order dated January 9, 1978, Secretary Webb denied Couch's request for a hearing. This denial was appealed by Couch to the District Court of Appeal, First District, and White Construction Company was made a party to that proceeding. After numerous motions were filed and oral argument was had, the District Court, by Order dated February 24, 1978, relinquished jurisdiction for a period of sixty days and remanded the case to the D.O.T. for the purpose of providing Couch a s120.57(1) hearing. The District Court stayed the D.O.T. from awarding the contract for the subject project. Prior to the Orders of the District Court, the D.O.T. readvertised the project, calling for a prebid conference on January 11, 1978, and the receipt of bids on January 12, 1978. This time, attendance at the conference was announced to be "expected," rather than "required." At the hearing, the D.O.T. divulged that attendance at prebid conferences would no longer be required or mandatory in order to avoid the problem inherent in the instant proceeding. Both Couch and White attended the January 11th prebid conference and submitted bids on January 12th. Couch's bid was identical to its December 21, 1977, bid. White submitted a bid approximately $40,000.00 below the bid of Couch. The D.O.T. receives bids on approximately 420 to 550 construction projects a year. During the past ten years, only seven other prebid conferences with required attendance have been held. In those instances, the language contained in the notice was different from the language used in the subject notice. On three occasions the language used was: "ALL PROSPECTIVE BIDDERS MUST ATTEND THIS PRE-BID CONFERENCE AS BIDDING DOCUMENTS WILL NOT BE ISSUED TO CONTRACTORS WHO HAVE NOT BEEN PROPERLY REPRESENTED AT THIS MEETING." On three occasions the language was: "ATTENDANCE WILL BE MANDATORY FOR THOSE INTENDING TO BID ON THIS PROJECT.? On one occasion the language was: "ATTENDANCE WILL BE MANDATORY FOR THOSE INTENDING TO SUBMIT A BID ON THIS PROJECT." The situation where the apparent low bidder has not attended a required prebid conference has never before arisen.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the D.O.T.`s decision to reject all bids and readvertise the subject project be affirmed and upheld. Respectfully submitted and entered this 24th of April, 1978, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact The Parties The Department of Health and Rehabilitative Services (HRS) is an agency of the State of Florida with the responsibility to provide services to certain clients and the authority to contract for the provision of those services. Multi-Resources, Inc., (MRI) is a Florida corporation with an office in Sebring, Florida. The corporation provides behavioral treatment to persons with developmental disabilities referred to its programs by HRS. The corporation currently operates in HRS Districts VI, VII, and IX, including a facility in Orlando, in District VII, which serves residential clients in two homes under contract with HRS. The clients in that facility are the same clients who are to be served under the proposed contract which is the subject of this proceeding. ARA Devcon, Inc., (Devcon) has been incorporated in Florida since 1981. It currently serves 276 developmentally disabled individuals in residential cluster facilities. Eighty-four of these individuals are "dually diagnosed"; that is, they are retarded and also have mental disabilities which require intensive intervention. Devcon provides services to HRS clients through contracts with the agency. Pejus, Inc., (Pejus) is an Indiana corporation organized to provide human services to persons with special needs. It operates programs in northern Indiana and, through a separate Florida corporation, Community Opportunities, Inc., it operates residential group homes under contract with HRS in District IV. These group homes serve persons with dual diagnoses of mental retardation and mental illness with severe behavioral disorders. Wohlfarth Group of Homes, Inc., (Wohlfarth) is in the process of incorporating in the State of Florida, with an office in Deltona, Florida. It currently does business in New Jersey as Developmental Disabilities Association of New Jersey, Inc.. In New Jersey it provides services to developmentally disabled persons, which services include group homes and adult training programs. The Request for Proposals On January 3, 1991, HRS District VII Administrator, Paul Snead, approved the Request for Proposals (RFP) and appointment of a 5-person selection team for RFP #DS-91-01, for specialized group homes for 24 District VII clients who are dually diagnosed or have severe behavior problems. (Joint Exhibit #3, MRI Exhibit F) The deadlines in the RFP provide for release of the RFP on January 18, 1991, a bidders' conference on January 28, 1991, and responses to the RFP to be received by the department by 3:00 p.m. on February 15, 1991. (Joint Exhibit #3) The RFP describes briefly the services to be provided with programmatic and other special requirements. Under "General Information", the RFP provides that the contract will be a fixed-price contract, with a line-item budget to be presented for the contract period of October 1, 1991-September 30, 1992, October 1, 1992-September 30, 1993, and October 1, 1993-September 30, 1994. "All costs will be reviewed to ensure that the costs are allowable and 'reasonable and necessary'". (Joint Exhibit #3, p.5) The instructions in the RFP include the following: How to Submit a Proposal Each copy of the proposal must include a Title Page which contains the following information: RFP number Title of proposal; Bidder's name; Organization to which proposal is submitted; Name, title, phone number and address of person who can respond to inquiries regarding the proposal; and, Name of project director (if known). All proposals should include: (Attachment XI) The project objectives as seen by the bidder; A detailed explanation of how the services will be provided; and, An operational plan which lists the activities to be conducted to accomplish each objective, and completion dates. The proposal should include: (Attachment XI) A table of organization, indicating how the project staff fit into the total agency, and how each member of the project staff relates to the other; A synopsis of corporate qualifications, indicating ability to manage and complete the proposed project; Evaluations of projects similar to the one proposed in the RFP (previous experience is desired but not required); A copy of the most recent financial statement or audit; An explanation outlining the staff who will provide the service, their qualifications and their number; and, Complete the Administrative Assessment of Potential Providers Checklist (Attachment X) and return it with the response to the RFP. The bidder must deliver the proposal packets either by hand or certified mail in a sealed envelope marked "Bid RFP #DS-91-01". In order for the bidder to receive proof of delivery they must request a receipt showing the time and date of delivery or mailing. j. Number of Copies Required The bidder will be required to submit an original and 2 copies of the proposal. At least one copy of the proposal submitted to the department must contain an original signature of an official of the provider agency who is authorized to bind the provider to the proposal. (Joint Exhibit #3, pp. 7, 8) The RFP describes "other required information" to include a Department of General Services acknowledgment form, a "statement of no involvement" form (certifying that the bidder was not involved in developing the RFP and other related matters), and a sworn statement under Section 287.133(3)(a), F.S. on public entity crimes. (Joint Exhibit #3, p. 9). Paragraph B.3.a. of the RFP requires that the proposal include "...a signed statement in response to the RFP indicating acceptance of the terms and conditions of provisions of service as specified in the RFP and contained in the core model contract". (Joint Exhibit #3, p. 10) Paragraph C. of the RFP provides: C. Proposal Evaluation Criteria and Proposal Rating Sheet The criteria by which the response to RFP #DS-91-01 will be selected is found in Attachment IX. The proposal rating sheet is a list of the evaluation criteria and specific indicators used to assess the degree to which the bidder's response meets those criteria. Prior to February 20, 1991, each proposal will be reviewed by the Proposal Selection Team and points awarded for each section based on the responses given. The selection team will evaluate the quality and completeness of the bidder's response. The values awarded for each response will be tabulated and a minimum score established below which proposals will not be considered. (Joint Exhibit #3, pgs. 10, 11) Attachment IX of the RFP, (Joint Exhibit #3) is the proposal rating sheet for RFP #DS-91-01. It has spaces to be filled in for the title of the proposal, the bidder and the reviewer. Total possible points is 646, and a minimum of 323 points is required. Part A of the Proposed Rating Sheet provides: Part A: MINIMUM PROPOSAL REQUIREMENT - FATAL ITEMS (A. "no" in any of the following requirements will automatically remove the proposal from the further consideration.) Circle Appropriate Responses The proposal contains an original YES NO signature by an authorized agency official agreeing to the terms and conditions of the contract and the statement of no involvement. The proposal for a cost-reimbursement YES NO project includes a line-item budget with justification. The proposal for a fixed rate project includes justification for the fixed rate. Is the population to be served YES NO the target population specified in the RFP? Was the District 7 application Packet YES NO used to respond to the RFP? The proposal includes a completed and YES NO signed Public Entity Crime Form, PUR 7068. (Joint Exhibit #3) A total of 6 possible points is allowed for submittal of a bound proposal with required number of copies, all mandatory attachments, and sequentially numbered pages. Two questions on the proposal rating sheet yield a total of 20 possible points for the bidder's understanding of why the project is necessary and what the project is intended to accomplish. (Part C) Six questions yield a total of 300 possible points on the bidder's response to RFP specifications. (Part D) Six questions yield a total of 120 possible points on the bidder's organizational capability. (Part E) Four questions yield a total of 200 possible points for the bidder's budget and financial information. (Part F) (Joint Exhibit #3, Attachment IX) The Review Process Raymond Granston has been employed by the Department of Health and Rehabilitative Services since 1986, as a case manager, and most recently as a human services program specialist in the HRS Developmental Services Program Office. He drafted RFP #DS-91-01, handled the advertisement and solicitation process, and led the 5-person selection team in the evaluation of responses. In addition to Granston, the team included Sandy Pruette, the Residential Services Director; Helen Tasher, a member of Granston's staff; Sandra Browdy, Licensure Specialist; and Paula Bowser, Grants Specialist. Four timely responses to the RFP were received: Pejus, MRI, Devcon and Wohlfarth. After the proposals were opened, Granston gave one copy of each to Paula Bowser. The original and remaining copy of each were retained in Granston's office for his and the other review team members' access. Each member took advantage of that access, and approximately February 26, 1991, the review committee met as a group, with Granston as chairperson. The group spent two or three hours together discussing the proposals and ascribing numbers from the rating sheet. Neither the Pejus, nor Wohlfarth proposals were rated, however, as "fatal" items were found. For the two remaining proposals, Raymond Granston kept notes of scores on a legal pad. The actual rating sheets for MRI and Devcon were not completed until sometime after the notice of intended award was sent, but the scores on Granston's notes were the basis for the notice. Those scores were a total of 534 for MRI (although the rating sheet reflects a computation error and total of 551); and a total of 618 points for Devcon. (Joint Exhibit #11 and 12) As described by the team members, the scoring process was a group effort, rather than the result of averaging individual members' scores for the proposals. Individual score sheets were not used. The Wohlfarth proposal was not scored by the review committee as the committee determined that paragraph A.1., the first "fatal" item, disqualified it from further review. That is, the committee felt that the proposal did not include "...an original signature by an authorized agency official agreeing to the terms and conditions of the contract and the statement of no involvement." (Joint Exhibit #3, Attachment IX) The review committee determined that the Pejus proposal had two "fatal" items: paragraph A.1., described above, and paragraph A.2. requiring justification in the budget. Determination on this latter item was based on lack of narrative pages in the budget. The Pejus proposal also had a couple of typographical errors where the service area was described as District IV, rather than District VII, but those errors were not considered by the committee to be "fatal" to its proposal. The agency maintained deliberative notes for the proposals submitted by MRI, Devcon and Wohlfarth, although these were not produced at hearing or offered into evidence. HRS, as stipulated by counsel, has no records which confirm any evaluation or rejection of the Pejus proposal. (Pejus Exhibit #1) The Bid Protest In a letter dated March 8, 1991, Ross Wingo, Jr., President of MRI, informed Ray Granston of his formal protest of intended contract award in RFP #DS-91-01, and outlined the bases for the protest. Most of MRI's protest involves argument that scores awarded for specific items are improper. For example, Devcon did not include a separate narrative statement for each budget item. Instead, a brief explanation of the cost was included on the face of the budget form. Devcon received a score of 9 out of 10 points; MRI received a full 10 points and included a separate narrative statement. The RFP paragraph E.5. requires a "statement certifying financial capability". Devcon did not include a separate signed statement, but rather provided the following at page 84: ARA Devcon has the financial capability to sustain this project for a minimum of 60 days or until the first reimbursement for services rendered is received from HRS. Further evidence of our financial capability is documented in the attached audit. (Joint Exhibit #2) Devcon received 9 out of 10 possible points for this. MRI received the full 10 points. A separate signed statement is clearly required in the RFP for the "statement of no involvement", but the RFP does not clearly require a separate signed statement of financial capability. Devcon's signature on the proposal itself constitutes acceptance of the entire proposal, including the statement described above. Each of the four proposals is voluminous, with narrative statements and lengthy attachments describing various financial, personnel or direct services aspects of the respective proposed program. Devcon's proposal is approximately 215 pages; MRI's is neatly bound, well- organized and comprises 395 pages. The narrative statements provided by Devcon are much briefer, but still include the essentials required by the RFP. It is obvious that the scores ascribed by HRS' review committee were not based simply on quantity of verbiage. Several of MRI's points on protest relate to the perceived quality of its detail as opposed to the sometimes bare-bones statements by Devcon. Scoring for many items was plainly subjective, but not plainly erroneous. Nor was it error, as contended by MRI for the review team to lack a certified behavior analyst or other expert in the direct delivery of services to developmentally disabled clients. Nothing in the RFP nor the procedural manuals of HRS require such expertise in review team members. HRS Manual 75-2 requires a selection team of at least three employees who have experience and knowledge in the program area and service requirements. (Joint Exhibit #9, p. 5-23) At least three members of the team had that experience and knowledge. One member, Paula Bowser, is a grants specialist for HRS developmental services and concentrated on the financial aspects and budget presentations in the proposals. Another member, Sandra Browdy, has 19 years employment experience with HRS, and as a human services program analyst/licensing representative is familiar with the agency's standards for service delivery and the evaluation and survey of service providers. It is impossible to determine that the review by the Committee was so cursory that the scores ascribed to Multi-Resources and to ARA Devcon's proposals are invalid. It is obvious, however, that the Committee missed certain documents in the Pejus and Wohlfarth proposals or erroneously stated the reason for failure to score those proposals. Joint Exhibit #5 is the exhibit examined by the parties at the hearing and was stipulated in evidence as the Wohlfarth proposal. (transcript p. 380) According to Raymond Granston, the Wohlfarth proposal was rejected for lack of an original signature by an authorized agency official agreeing to the terms and conditions of the contract and the statement of noninvolvement. In response to a specific question from the Hearing Officer, Granston stated the problem was not that there was no original signature, but rather that the statement is not there. (transcript, p. 504) The RFP, as cited in paragraphs #10 and #11, above, actually references two separate statements, although the two are addressed together on the RFP rating sheet. James Casale is identified throughout the Wohlfarth proposal as the Project Director. Marion Wohlfarth, President of Wohlfarth, is identified on the application for funding form as the official authorized to sign the contract. James Casale's name and signature appear on the Department of General Services Request for Proposal Acknowledgment form. That form includes this language "I agree to abide by all conditions of this proposal and certify that I am authorized to sign this proposal for the proposer and that the proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements." (Joint Exhibit #5 - unnumbered pages) James Casale's name and signature as authorized representative appear on the "Statement of No Involvement" form in the Wohlfarth proposal. Attachment V of the RFP is the HRS standard contract. Wohlfarth's proposal includes this contract form, signed by James Casale, Project Director for Wohlfarth Group of Homes, Inc. The required documents are found in the Wohlfarth proposal, but none of the signatures are originals. (Joint Exhibit #5) As admitted by Ray Granston, there is no specific form in the RFP that the proposer was to execute to state it would agree to the terms and conditions of the contract. (transcript, p. 503) By signing the contract itself, Wohlfarth apparently intended to agree to its terms and conditions, but the signature is not that of Marion Wohlfarth, the person authorized to sign the agreement. The Pejus proposal was stipulated into evidence by the parties as Joint Exhibit #4. (transcript, p. 380) This exhibit includes a cover letter signed by Ernest Beal, Jr., President of Pejus, Inc.. It also includes a bound volume, which is the body of the proposal, and a supplement to the proposal that was faxed to Raymond Granston on February 15, 1991. The supplement includes Ernest Beal's signature on the Department of General Services Request for Proposal Acknowledgment Form and a separate "Statement of No Involvement" Form signed by Ernest M. Beal, Jr. (Joint Exhibit #4) None of these are original signatures. There is no evidence of whether the fax was received by the 3:00 p.m. deadline. A follow up mailed version was stamped "received" by the agency on February 18, 1991. (Joint Exhibit #4) The Pejus Proposal was also not evaluated because it lacked budget justification. See paragraph #21, above. The proposal rating sheet does not require a narrative, but rather for a fixed-rate project such as this it requires "justification for the fixed rate". (Joint Exhibits #11 and #12) Pejus' proposal includes a detailed line-item budget on the forms provided in the RFP packet. Explanations, where necessary, are found in the line-item budget. (For example, see Attachment D1, pp. 4.3, 4.13, 4.19, 4.25 and 4.32., Joint Exhibit #4) HRSM 75-2 is the agency manual which provides procedures for HRS' procurement and contract management. It requires that prospective members of the selection team complete a conflict of interest questionnaire (Appendix J) to ensure that no team member has any conflict of interest that would interfere in selection of a contractor. (Joint Exhibit #9, p. 5-23) It does not provide when the form must be completed unless the team member participates in RFP development, in which case the form must be completed prior to that participation. Ray Granston complied with that requirement. Four of the five review committee members completed the questionnaire. (MRI Exhibits A-E) Appendix J, the questionnaire form, was amended effective November 1, 1990, and no longer requires a sworn statement. (Joint Exhibit #9) The manual requires that the selection team evaluate RFP proposals using the weighted evaluation sheet contained in the published RFP. It does not require, as suggested by Multi-Resources, that the evaluation sheets be completed by each reviewer or that the sheets be maintained. Summary of Findings The review process itself was informal and poorly documented, although it substantially complied with the requirements of the RFP and with the agency's procedures manual. From the evidence presented, the ultimate results of the review are appropriate, even though the witnesses were thoroughly confused as to the specifics regarding rejection of the Pejus and Wohlfarth proposals. The unclear requirements of the RFP as to forms and certifications thought missing from the Pejus and Wohlfarth proposals contributed to that confusion. The RFP requirements were not protested, however, and among the four providers who submitted proposals only MRI attended the advertised bidders conference. (Joint Exhibit #8)
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered dismissing Multi-Resources, Inc., petition and awarding the contract in RFP #DS-91-01 to ARA Devcon, Inc. DONE AND RECOMMENDED this 16th day of August, 1991, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1991. APPENDIX TO RECOMMENDED ORDER The following constitute specific treatment of the findings of fact proposed by MRI and Wohlfarth. Although it was substantially late, Wohlfarth's submittal was considered. Its consideration does not alter the outcome of this proceeding. Proposed Findings of Fact Submitted by MRI Adopted in paragraph 2. Adopted in paragraph 1. Adopted in paragraph 7. Adopted in paragraph 18. Adopted in paragraph 6., except that the manual does not require a 5- person team. Rejected as contrary to the weight of evidence. 7.-9. Adopted in paragraph 19. Rejected as contrary to the evidence. Adopted in paragraph 32. Rejected as immaterial. 13.-16. Adopted in summary in paragraph 32. 17.-20. Rejected as immaterial, and, as to the requirements of HRSM 75-2, contrary to the evidence. 21.-23. Addressed in the preliminary statement. 24.-25. Adopted in paragraph 19. Adopted in paragraph 17. Rejected as immaterial. Rejected as contrary to the evidence. Rejected as immaterial. Rejected as contrary to the evidence. Rejected as unnecessary. Rejected as contrary to the evidence. 33.-35. Rejected as immaterial. Adopted in paragraph 19. Rejected as unclear. Adopted in paragraph 19. 39.-42. Rejected as contrary to the evidence. 43. Rejected as unnecessary. 44.-45. Rejected as contrary to the evidence. 46.-47. Rejected as immaterial. 48. Adopted in paragraph 19. 49.-50. Rejected as unnecessary. 51. Adopted in the conclusions of law, in substance. 52.-54. Rejected as contrary to the evidence. 55. Rejected as unnecessary. 56.-59. Rejected as argument or conclusion, rather than findings of fact. Proposed Findings of Fact Submitted by Wohlfarth Adopted in paragraph 7. Adopted in paragraph 18. Adopted in paragraph 17. Rejected as contrary to the evidence. 5.-8. Rejected as immaterial. Rejected as contrary to the evidence. Adopted in paragraph 20. Rejected as contrary to the evidence. Rejected as unsubstantiated by competent evidence. 13.-16. Rejected as argument or conclusions, rather than findings of fact. COPIES FURNISHED: James Sawyer, Jr., Esquire HRS-District 7 Legal Office South Tower, Suite S-827 400 W. Robinson Street Orlando, FL 32801 Ross Wingo, Jr., Esquire Multi-Resources, Inc. 2555 US 27 South Sebring, FL 33870 ARA Devcon, Inc. Attn: Linda Mabile 2121 Killearney Way, Ste. F Tallahassee, FL 32308 Wohlfarth Group of Homes, Inc. Attn: Fred Wohlfarth 2301 Whitehorse Street Deltona, FL 32738 Ernest M. Beal, Jr., Esquire Pejus, Inc. 9025 Coldwater Rd., Ste. 300 Fort Wayne, IN 46825 John Liguori, Esquire P.O. Box 1051 Bartow, FL 33830 John Slye, General Counsel HRS 1323 Winewood Blvd. Tallahassee, FL 32399-0700 R. S. Power, Agency Clerk HRS 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the rejection of Petitioner Compaq Computer Corporation's (Compaq) submission in response to an invitation to negotiate #01/02-31 for the Child Support Enforcement (CSE) Automated Management Systems (CAMS) case management informational technology system is "clearly erroneous, contrary to competition, arbitrary or capricious." Embodied within that general issue are the considerations of whether the proposal by Compaq was responsive and whether the submittal by Compaq of a "Form 7105," with the absence of the vendor certification purportedly required on the front, or first page of that form, and the signature by the representative of Compaq in a signature area designated for an agency representative is a material irregularity.
Findings Of Fact The Petitioner, Compaq, is a Texas Corporation. It is authorized to do business in the State of Florida. The Respondent, DOR is a state agency charged with the responsibility of administering the Child Support Enforcement Program for the State of Florida in accordance with Section 20.21(h), Florida Statutes. The DOR issued an Invitation to Negotiate (ITN) for the CAMS compliance enforcement implementation on February 1, 2002. This procurement is designed to give the DOR a "state of the art system" that will meet all Federal and State regulations and policies for Child Support Enforcement, improve effectiveness of collections of child support and automate enforcement to the greatest extent possible. It will automate data processing and other decision support functions and allow rapid implementation of changes in regulatory requirements resulting from updated Federal and State regulation policies in Florida initiatives, including statutory ones. The ITN provided for a multi-phased process to be followed by negotiations with the selected proposers. The first phase of review consisted of a review of mandatory items. There followed evaluations of key proposal topics, management and technical and cost items. The top scoring proposers would then be invited to make oral presentations which would also be scored and which would then be followed by negotiations. The Department of Management Services has promulgated several forms with the designation "PUR" followed by a numerical reference. The numerical reference corresponds to the procurement methodology being used for the particular procurement at issue. For instance, the PUR 7105 is for invitations to negotiate. The other PUR forms identified in Rule 60A-1.002(7), Florida Administrative Code, are PUR 7028 for invitations to bid for commodities, PUR 7031 for invitations to bid for contractual services, PUR 7051 for requests for proposals for commodities, and PUR 7033 for requests for proposals for contractual services. Section 7.2.1.3 of the ITN advises proposers that the State of Florida invitation to negotiate acknowledgement form, PUR 7105 must be signed and included with the original of a proposer's package. It also notified the proposers that this form would be provided with the ITN on the DMS Vendor Bid System (the internet). "DMS" refers to the State of Florida Department of Management Services which maintains the Vendor Bid System referred to by the ITN. Form PUR 7105 is a purchasing form developed and produced by the Department of Management Services. When downloading the form PUR 7105 from the Vendor Bid System (VBS) on the internet, the first page containing the vendor information, certification and signature space, is not identified as being the first portion of form PUR 7105. The second and third pages, with the title "General Conditions" are the only ones denoted as being part of form PUR 7105. Compaq became aware that the procurement was going to proceed and began assembling a staff in order to be prepared to respond to the procurement and submit a proposal. Michael Angeley was designated project manager of the Global Services Division of Compaq to head the evaluation of the ITN for Compaq and to be in charge of preparation of Compaq's response to the ITN. As indicated above, the availability of the ITN was posted on the internet and made available on the VBS of the DMS. When accessing the ITN by computer, the applicable computer screen, which first becomes available, advises the viewer to "click here to view the bid specifications." If the viewer clicks "here," the first document which comes up on the screen is an unnumbered form, identified by its Universal Resource Locator (URL) line as follows: http://fen.state.fl.us.owa_vbs/owa/vbs_www.boiler_plate.show? boiler_plate_key_str=1129. At the bottom of the unidentified form, is the direction to "click here for additional required files." If the viewer clicks for additional required files at the bottom of the unidentified form, a document identified as "Downloadable Files for ITN-CAMS Compliance Enforcement Implementation" appears on the screen. The "Downloadable Files" screen provides a list of filed documents, and an indication of their type, with a check mark beside each file and a notation at the bottom of the page which states that a check mark "indicates required file." The first file document on the "Downloadable Files" screen is described as "General Conditions," with the "Type" indicated as PUR 7105, and a check mark indicating that it was a required file. If the viewer clicks to download the file designated as PUR 7105, a two-paged document entitled "General Conditions" appears in the Adobe Acrobat format with the statement at the bottom of each page that it is "PUR7105Rev.6/1/98." Michael Angeley, as Project Manager for Compaq, journeyed to Tallahassee to a pre-proposers conference. In response to statements by DOR representatives at the pre- proposers conference, Mr. Angeley went directly to Compaq's office in Tallahassee and downloaded the PUR 7105 form which was identified as such on the list of required files. In doing so, Mr. Angeley followed the procedure set forth in paragraphs 9-13 above. The Petitioner's Exhibit three, which the Respondent asserts is the first page of form PUR 7105, is not part of the "Downloadable Files for ITN-CAMS" which is listed as "required" on the VBS screen. Compaq did not download the first page or include it in its proposal response. Compaq perceived the downloaded document entitled "General Conditions" as the correct form based on its designation as such on the form and from the URL which reads: "http://fcn.state.fl.us/fcn/centers/purchase/vbs/ pur7105.pdf." After downloading the files indicated as required on the VBS, Mr. Angeley placed the entire document in a separate system file on his local network, and thereafter did not have to access the documents through the original process. Mr. Angeley, along with four other Compaq representatives, attended the mandatory pre-proposers conference that was held in Tallahassee on February 13, 2002. At the pre-proposers conference, which was attended by over 100 persons, questions which had been previously asked of DOR in writing, were answered in writing and a hand-out containing the answers was provided to each attendee. No additional questions were permitted at the pre-proposers conference. At that conference a DOR representative (Ms. Phillips) held up a document in front of the audience and advised the attendees that the form, identified by her as PUR 7105, needed to be included in the proposal. The document held up to the audience was not handed out, nor was it clearly visible to all attendees at the pre-proposers conference. Compaq representatives in attendance at the pre-proposers conference understood that form PUR 7105 was required to be included in the proposal package and, therefore, made no further inquiry regarding the form. Compaq's belief was that it was following the directions provided by DOR with regard to form PUR 7105, including those received at the pre-proposers conference and as contained in the ITN and the other computer accessible documents. That belief has been shown to reasonable under the circumstances. Compaq Vice President Kevin French signed the signature line on the only signature line available on the downloaded portion of form PUR 7105 in Compaq's possession. Mr. French had the authority to bind Compaq to the terms and conditions listed on the form. The signature of Mr. French on form PUR 7105 and in three other places in the submittal, including the transmittal letter, was intended by Compaq to and did bind it to the terms and conditions of the ITN. No unfair or competitive advantage was obtained by Compaq by signing the last page of form PUR 7105 by mistake, instead of the first page which it had not downloaded, consisting of the "Acknowledgement Form." The Evaluation Process The evaluation of proposals submitted in response to the ITN was designed to be a multi-stepped process. The evaluation was conducted by a review committee comprised of representatives from DOR's Purchasing Division and from the CSE Division as well as from DMS. The relevant portions of the evaluation process consist of the following steps: 8.1 Evaluation Process Proposers are responsible for thoroughly reviewing all ITN requirements to ensure that the proposal and the proposed approach are fully compliant with ITN requirements and approach are fully compliant with ITN requires and thereby avoid the possibility of being ruled non-compliant. FDOR will evaluate and score proposals with the following methodology that is more fully described in the following subsections. FDOR will: Perform Mandatory Items Compliance Evaluation to validate proposals against the mandatory items listed in Table 8-1. Proposals that do not respond to all mandatory items will be rejected and not considered further. Score Key Proposal Topics to ensure a proposal achieves the minimum acceptable score for these key topics before the effort is expended to fully evaluate it. Proposals that fail to achieve a minimally acceptable score for these key topics will be rejected and not considered further. (Emphasis supplied) The minimum score for the second step of the evaluation process was 150 points out of a possible 230. Section 8.1.1. of the ITN, "Table 8-1 (Selected Mandatory Items) lists 24 separate items in question format, with a reference to the ITN setting forth the location of the requirement. The Steering Committee selected the 24 items listed as mandatory but did not rank the items as to importance because all were considered mandatory. Section 2.3.8 of the ITN states as follows: 2.3.8 Rejection of Proposals FDOR will reject a proposal that FDOR deems to have a material defect. A material defect is any part of the proposed solution that violates a mandatory requirement and results in an unacceptable system or unacceptable risk. FDOR will reject proposals that fail to pass the Mandatory Items Compliance Evaluation (see Section 8.1.1). FDOR will reject proposals that include, in proposal Volume 3 (Contract), contract wording identified as mandatory by the proposer that is unacceptable to FDOR (see Section 7.4.1.2). FDOR will reject proposals that fail to achieve the minimum acceptable score for Key Proposal Topics (see Section 8.1.2). FDOR reserves the right to reject any and all proposals received if FDOR determines such action is in the best interest of the State of Florida or FDOR. Item 12 on Table 8-1 queries, "Did the proposer submit a PUR 7105 form signed by an authorized representative?", with a reference to ITN 7.2.1.3. Section 7.2.1.3 of the ITN states as follows: 7.2.1.3 State of Florida Invitation to Negotiate Acknowledgement Form, PUR 7105 The proposal shall include a form PUR 7105, completed and signed. The form will be provided with the ITN and the DMS Vendor Bid System. The original form PUR 7105 must be included with the Original/Master Copy (copy one) of Volume 1 of the proposal. Ms. Barbara Phillips, a purchasing specialist with DOR who was assigned to duties as an initial evaluator of the proposals, created a check list for the initial screening process and selected items 1, 2, 6, 8, 11, and 12, from the list of 24 "Mandatory Items" on Table 8-1. If a proposal received a negative ranking, indicated by an "N" as to one of the items on the check list, no further evaluation was done on the proposal. Seven proposals were submitted to DOR in response to the ITN. Compaq's proposal was the only proposal rejected as not responsive by DOR. Compaq's proposal was rejected on the basis of Compaq's failure to include a complete form PUR 7105 as part of its proposal and for signing the last page of form PUR 7105 on the line marked for the "Authorized Agency Signature" instead of on the first page. The confusing manner in which the information regarding form PUR 7105 was presented in the VBS substantially contributed to Compaq's inclusion of only two of the three pages of form PUR 7105 in its proposal. Once the decision was made to reject Compaq's proposal on the basis of form PUR 7105, evaluation of the proposal was stopped. Compaq's proposal was not scored in the second step of the evaluation process relating to Key Proposal Topics, therefore, it is not known whether it would have received the minimum score of 150 in order to proceed further in the process. Covansys Corporation submitted a proposal which was deemed responsive by DOR even though only the first unnumbered page of what DOR refers to as an "Acknowledgement Form" was included in its proposal and not the "General Conditions" which are listed as "Required" in the VBS system. Accenture, LLP submitted a proposal which was deemed responsive by DOR even though it made a notation on the Acknowledgement Form: "Subject to Accenture's Exceptions and Reservations in Volume 3, Section 1." The only difference between signing at the end of the two page "General Conditions" document listed in the VBS system as: "PUR FORM 7105" and not signing the "Acknowledgement Form" is that the vendor does not make a representation of non- collusion. However, the agency's representative made it clear that this provision is subject to negotiation and that the signature did not actually bind the vendor to that certification. When Accenture was deemed responsive and moved to the next stage of the evaluation process, the DOR reviewers did not check and did not know how many of the General Conditions were subject to Accenture's exceptions and reservations, nor the extent of the exceptions and reservations. In fact, they did not know whether or not Accenture agreed to any or all of the terms and conditions provided on form PUR 7105. Unisys submitted a proposal which was deemed responsive by DOR even though several Mandatory Items including Volumes 1 and 2 of the electronic copy (CD) of its proposal, as well as the Microsoft Project Plan, were not submitted. TIER submitted a proposal which was deemed responsive by DOR even though the reviewers found that Mandatory Items were not submitted in accordance with the directions in the ITN and despite the reviewers' determination that the documentation submitted from the Secretary of State's Office regarding its corporate status had expired. KPMG submitted a proposal which was deemed responsive by DOR even though the reviewers stated on the evaluation form that KPMG did not comply with certain Mandatory Items listed on Table 8-1.
Recommendation RECOMMENDED that a final order be entered by the State of Florida Department of Revenue deeming Compaq's proposal to be responsive to the Invitation to Negotiate and entitled to proceed to the next step in the evaluation process. DONE AND ENTERED this 23rd day of September, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 23rd day of September, 2002. COPIES FURNISHED: O. Earl Black, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32399-0100 David W. Moye, Esquire Fowler, White, Gillen, Boggs, Villareal, and Banker, P.A. Post Office Box 11240 Tallahassee, Florida 32302 Bruce Hoffman, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 James Zingale, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue Whether Respondent Florida Department of Health and Rehabilitative Services (HRS), acted illegally, dishonestly, fraudulently, arbitrarily or/and capriciously in determining to award the contract for RFP 95-142CM-FAP to Unisys Corporation (Unisys).
Findings Of Fact On November 14, 1994, HRS's Office of Information Systems distributed the RFP, entitled "FLORIDA System --Applications Programming Services." The RFP was designed to procure the programming services required by HRS to complete the software programming of, among other things, the state's federally mandated Child Support Enforcement System, and to maintain and enhance the system upon its completion. Upon selection of the winning proposal, HRS intended to enter into the contract for thirty-six months, renewable upon agreement of the parties for an additional 12 months. The cost proposal rates for the initial three-year term would be binding for any subsequent work on the project. HRS also reserved the right to acquire additional consulting services from the contractor for related activities for up to one year after the termination of the Contract. HRS began developing this RFP in the late spring or early summer of 1994 in anticipation of the expiration of the current contract with Deloitte for provision of applications programming services. Before release to prospective proposers, the RFP was approved by HRS' Office of Contract Services and the Information Technology Resources Procurement Advisory Commission (ITRPAC), a body consisting of various state officials including the head of the Division of Purchasing, which ensures that the RFP complies with state rules. In addition, various federal agencies approved the RFP before its release to prospective proposers. The RFP provided that 60 percent of the proposal scoring would be based on the technical proposals contained in the responses to the RFP, and that the remaining 40 percent of the score would be assigned to the costs as submitted in the proposals. After scoring and weighting of the scores, the weighted scores were to be combined to determine the winning proposal. The breakdown of scoring between technical and cost components is based upon HRS' standard practice and its experience with the format required by other state and federal agencies with whom HRS works. The division of the scores was also intended to ensure that an unqualified vendor did not secure the bid solely on the basis of low cost. The selection of the evaluation criteria and weighting of evaluation points for this RFP were subject to the discretion of the Department at the time the RFP was prepared. On December 12, 1994, HRS held a bidders' conference at which representatives of Deloitte and Unisys were in attendance. EVALUATION OF RESPONSES On January 6, 1995, Deloitte and Unisys submitted the only two proposals in response to the RFP. Both proposals were deemed responsive to the requirements of the RFP. HRS appointed a five member Evaluation Committee to review and evaluate the proposals. HRS provided training to the Evaluation Committee members specifically directed to the proper method for reviewing and scoring proposals submitted in response to the RFP. Each member of the Evaluation Committee was qualified by training, education and experience to review and evaluate the technical merits of each proposal. The RFP defined the criteria by which the proposals would be reviewed, scored and ranked by the Evaluation Committee, and the contract awarded. Included in the RFP were blank cost proposal forms which the proposers were to complete. Those forms did not include any blank spaces to be filled in referencing costs associated with any "renewal" periods or otherwise provide for including information about proposed costs for any renewal periods. The Evaluation Committee members each independently reviewed the technical proposals submitted in response to the RFP over a period of approximately two weeks. Committee members submitted the raw scores from their technical evaluations to Karin Morris, the HRS System Program Administrator. The cost proposals were opened and scored on January 20, 1995 by Ms. Morris. The RFP provided, in Section 6.0, that a comprehensive, fair, and impartial evaluation would be conducted of all proposals received. The RFP also provided for the grouping of evaluation criteria into six categories with points assigned as follows: - Mandatory Requirements 0 points - Management Summary 0 points - Corporate Capabilities 200 points - Project Staff 200 points - Technical Approach 100 points - Project Workplan 100 points - Cost 400 points Section 6.0 of the RFP also contained the following language: Selection of the successful proposer will be based on the proposal that is determined to be in the best interest of the department, taking into consideration cost and other criteria set forth in the RFP. Further, the RFP provided, in Section 6.1, that: An Evaluation Committee will be established to assist the department in selection of the winning contractor(s). All proposals not meeting the mandatory requirements will be rejected. The committee will evaluate the technical approach, corporate capabilities and project staff of all responsive proposals. The committee will rank proposers by the resulting scores and make a recommended award. The committee will summarize their findings and prepare an evaluation report to the Deputy Secretary for Administration. The report will then be presented to the Secretary of HRS. The Secretary will review the final report, pertinent supporting materials and make the determination of the final award, taking into consideration cost and other evaluation criteria set forth in the RFP. The Secretary reserves the right to take any additional administrative steps deemed necessary in determining the final award. (Emphasis added). Most importantly, Section 6.3(D) of the RFP dealing with the evaluation of the cost proposals stated: The points awarded for the three cost evaluation categories will be totaled and added to the points awarded for technical evaluation cate- gories 3 through 6 to determine the winning proposer. (Emphasis added). After reviewing and comparing the weighted scores of both proposals, the Evaluation Committee issued a "Final Report," with recommendations, on January 30, 1995. The weighted technical scores reflected in the Evaluation Committee's Final Report are as follows: DELOITTE UNISYS Corporate Capabilities 200 186.36 Project Staff 200 159.07 Technical Approach 100 76.62 Project Workplan 100 76.73 TOTAL 600 499 The weighted cost scores were: DELOITTE UNISYS Fixed Price Tasks 10.0 2.27 Monthly Price 357.90 380.0 Hourly Price 7.77 10.0 TOTAL 375.67 392.2 Totaling all categories as required by paragraph 6.3(D) of the RFP, the Department's Evaluation Committee arrived at the following final ranking: DELOITTE UNISYS Technical Proposal 600 499 Business Proposal 376 392 TOTAL 976 891 Based upon the Evaluation Committee's scores, Deloitte's demonstrated technical capability is 20 percent higher than that of Unisys. Under the terms of the RFP, there was no discretion involved in scoring the cost portion of the proposals, including the weight to be accorded costs in the final overall scoring to determine the winning bidder. Based upon HRS' inclusion of the specific criteria in the RFP, the cost portion scoring was merely a mechanical calculation. Both of the proposers' cost proposals fall within the agency's budgetary limits for the current year for accomplishing the work requested by the RFP. Four of the five members of the HRS Evaluation Committee recommended award of the contract to Deloitte, in the following language: Deloitte & Touche scored higher in all areas including recommendations. Deloitte and Touche is the incumbent contractor and therefore there are no risks associated with the transition. Deloitte understood the requirements of the RFP and addressed them more completely in their proposal. Therefore, it is our recommendation that the contract should be awarded to Deloitte & Touche. (Emphasis added). One member of the Evaluation Committee recommended the decision be left to the Secretary of HRS. None of the members of the HRS Evaluation Committee recommended award of the contract to Unisys. HRS SECRETARY'S DECISION TO AWARD TO UNISYS On January 27, 1995, prior to preparation of the recommendations contained in, or the issuance of, the Evaluation Committee's Final Report, HRS Secretary James Towey convened a meeting with Deputy Secretary Lowell Clary, John Holland, Bill Belleville and the department's legal counsel to discuss the contract award process, a draft of the Evaluation Committee's Final Report and other matters the Secretary felt relevant to HRS' ultimate decision on the RFP. At the meeting, Towey was informed by Bill Belleville that Deloitte's proposal was the "best." Towey was also informed by John Holland and Bill Belleville that both companies could perform under the contract. However, neither Holland's nor Belleville's assessments were based on responses to the RFP, but rather upon their own experience with the two vendors outside of this RFP process. Belleville conceded that he believed that a proposer was qualified to perform the contract by merely meeting the "mandatory" requirements of the RFP, a category that was accorded zero points in the scoring criteria. Informed that both companies could perform under the contract, Towey "zeroed in" on costs as the major consideration for the award of the contract. At the meeting, he considered a present-value calculation of the payments that the State would make over the course of a contract, if the contract had been for a 48 month term. The calculation had been prepared by Dean Modling, an HRS senior management analyst supervisor, although the RFP had been approved by the Department of Management Services without provision for such an analysis. The RFP not inform proposers that a present-value analysis would be performed and provision for the present-value of a contract was not included in the scoring criteria for the proposals. Present value calculation became an issue when it was raised and discussed at the January 27, 1995 meeting, and subsequently used in the Secretary's decision to award the contract to Unisys. Towey also considered, in deciding to award the contract to Unisys, a calculation of "raw costs," provided after the January 27, 1995 meeting. These "raw costs" were presented on two charts. Both added up the amounts submitted by each proposer for fixed price tasks and monthly costs, over 36 months. Although the RFP did not request, and neither proposer submitted costs for a 48 month contract, the two charts included a calculation for a hypothetical 48 month contract using the same monthly payments submitted for the 36 month contract. In addition, one of the two charts included a 5.8 percent factor for overtime, which was also not addressed by the RFP or by the proposals submitted in response to the RFP. There was no evaluation criteria contained in the RFP which dealt with the issue of "raw costs" over the term of the contract. Prior to the decision to award to Unisys, HRS never performed and Towey never considered a present value analysis for the 36 month contract period provided for in the RFP. Finally, as a result of concern expressed at the January 27, 1995 meeting regarding whether Unisys could handle the immediate tasks required by the contract, including requirements of the Child Support Enforcement and federal certification programs, Towey considered whether there would be any risk of transition if Unisys were unable to hire some of Deloitte's employees and subcontractors should he decide to award the contract to Unisys. Towey specifically requested Deputy Secretary Clary to research this issue. In order to obtain information, Clary had HRS personnel directly contact Deloitte's subcontractors. Clary responded to Towey three days later on January 30, 1995, the day before the decision by Towey to award the contract to Unisys, that Deloitte's subcontractors would not be prohibited from working for Unisys. Consideration of overtime and risk of transition were not criteria contained in the RFP, nor were these elements evaluated and scored by the HRS Evaluation Committee. By way of a January 31, 1995 memorandum to Clary announcing the award of the contract to Unisys, Towey stated: I have now had an opportunity to review the report of the evaluators of this RFP, the recommendations contained therein, the raw data submitted with the proposals, and the RFP. I understand the nature of the project and its importance to the agency. Based upon my review of the information presented to me and my understanding of similar projects in the past, my decision is to award the contract to Unisys as the proposal most advantageous to the state of Florida, taking into consideration the price and other criteria set forth in the RFP. Although I have considered the risk of transition to a new contractor, I find that I am unable to ignore the dollar savings which will result in awarding the contract to Unisys. Since you and your staff have assured me that both companies are technically competent to perform the work, I believe the monetary savings outweigh any risk that might exist in the transition of contractors. Therefore, I have determined that it is in the state's best interest to award the contract to Unisys. Please take whatever steps are necessary to implement this decision. (Emphasis added). By his actions, Towey exercised more than the prerogative conferred by the RFP to "take any additional administrative steps deemed necessary in determining the final award" and actually evaluated criteria other than that contained in the RFP in reaching his decision to award the contract to Unisys. Further, in awarding the contract to Unisys, Towey effectively altered the relative weight of the criteria as specified in the RFP. Towey relied upon the advice of Clary. Illustrative of Clary's perspective is his testimony at the final hearing that he believed the 60/40 weighting contained in the RFP to be inapplicable to decision making by the Secretary of HRS. Neither Bill Belleville nor John Holland reviewed, in detail, the proposals submitted in response to the RFP. Neither performed their own independent analysis of the responses. Further, Clary never reviewed the RFP nor the proposals submitted in response to the RFP. In the course of his decision making process with regard to award of the contract to Unisys, Towey relied on the advice of Clary, Belleville and Holland, referred to by Towey as his "top managers", despite their undisputed lack of familiarity with the Deloitte and Unisys proposals. While his memorandum dated January 31, 1995, states he reviewed the RFP, Towey admitted in his testimony at the final hearing that he had not personally reviewed the document. Further, he never reviewed or performed his own analysis of the two proposals submitted in response to the RFP. The members of the Evaluation Committee members were the only persons to fully and carefully evaluate the two proposals and score them under the criteria contained in the RFP. Since that time, no one else from HRS has attempted to reevaluate or re-score the proposals. Neither Towey nor anyone else involved in the January 27, 1995 meeting disagrees with the analysis and scoring of the proposals by the Evaluation Committee. PRESENT-VALUE ANALYSIS Section 1.2 of the RFP, states, in part: This RFP will result in a thirty-six month contract. Further, Section 4.12(C) of the RFP states, in part: Upon selection of the winning proposal, the department shall enter into a contract for thirty-six (36) months. Although the possibility of renewal of the contract for a maximum of a single, one year term is contained in the RFP, there is no provision in the RFP which requires that HRS renew the contract after 36 months or that the contractor accept a renewal after 36 months for any specific term. By the terms of the RFP, any renewal of the contract for a period beyond the 36 month term is subject to negotiation between the contractor and the department. While proposals submitted by Unisys and Deloitte commit to maintaining the same costs in the event of renewal, negotiation as to the length, price and staffing for any renewal period less than a year, is not excluded by the terms of the RFP. Neither HRS nor the contractor is bound, under the terms of the RFP, to any extension of the contract. HRS' own manual, HRSP 75-3, entitled "Developing a Request for Proposal," states, in the section on contract renewals: If Contract Renewals have been provided for in this RFP, include the following recommended language in the Special Provisions subsection of the RFP: This contract may be renewed on a yearly basis not to exceed two (2) years beyond the initial contract or for a period no longer than the term of the original contract whichever period is longer. Such renewals shall be contingent upon satisfactory performance evaluations as determined by the department and shall be subject to the availability of funds. As specified in the provider's response to the RFP/ITB, the total cost for the contract under the' first year renewal will not exceed $ and the second year renewal will not exceed $ . Each renewal shall be confirmed in writing and shall be subject to the same terms and conditions set forth in the initial contract. (Emphasis added). Another in-house document at HRS is HRS manual, HRSM 75-2 (May 1, 1994 update), entitled "Contract Management System for Contractual Services". Chapter 5 of that document, entitled "Contractual Procurement Requirements," states, in pertinent part: The dollar amount and the manner in which the costs for the . . . renewals will be calculated must be specified in the response to the RFP and in the resulting contract document. By contrast, the RFP contains none of the language specified in either HRS manual regarding renewal. Section 4.12(c) of the RFP merely states: This contract term shall be renewable for a max- imum of a one year term upon the mutual agreement in writing of the contractor and the department. (Emphasis added). Terms of the RFP did not invite proposers to submit a specific cost or any other information for a renewal period or explain how costs for a renewal period would be calculated. Neither did the RFP contain any language that renewals would be conditioned on satisfactory performance by the contractor. Proposers, on blank cost forms, were requested in the RFP to provide HRS with their proposed prices for fixed price items, monthly costs and hourly costs. The forms, contrary to the requirements of HRS manuals applicable in situations where information for a renewal term is requested, did not provide a place for proposers to indicate costs for any renewal term or to demonstrate how those costs were calculated. Both contractors understood that any renewal would be subject to negotiation. The "Standard Contract" contained in the RFP provides only for a term of 36 months and a cost for that specific contract term. Consistent with the terms of the RFP that the contract was for a 36 month term, HRS submitted, on more than one occasion, materials to ITRPAC. In those materials, HRS represented that the proposed budget amounts of $25 million and $28 million for the project were for a three year term contract. The Notice of Award which HRS issued stated that a three year contract was to be awarded. Although the RFP addressed staffing at a maximum of 107 persons, HRS was aware that 100 percent staffing might not always occur. Section 2.l(B)(5) of the RFP permits 90 percent of the maximum staffing level at a given time without the vendor incurring a penalty. At one point in the RFP preparation, a draft of the RFP required 95 percent staffing. Even that level was considered by HRS to be too restrictive and anti-competitive and was amended to 90 percent out of fear that a 95 percent staffing level would discourage submission of competitive proposals. The 90 percent figure was also used in the RFP to account, in part, for projected attrition of contractor employees that HRS had historically experienced on this project. From the standpoint of budgetary allowances by HRS for the project, it is realistic to believe that the job will be staffed at somewhere between 90 percent and 95 percent rather than at the maximum staffing level of 107 employees. Although Section 4.15(D)(5) of the RFP states that the State is not responsible for paying contractor's employees for leave or vacation time, the testimony of Petitioner's financial expert, Dr. Elton Scott, establishes that a reasonable assumption is to assume that each employee is entitled to, and would take, at least two weeks vacation. Such an assumption should also be included when performing a present value analysis, particularly when assuming 100 percent staffing. Depending on budget allocations for this project, it is possible that HRS would only require that the contractor provide as few as 46 employees. The present value calculation performed by HRS indicated that, over 48 months, at 100 percent staffing (107 employees), the monetary cost of awarding the contract to Unisys would be approximately $500,000 less than the cost of awarding the contract to Deloitte, a savings of approximately 1.5 percent over the term of the contract. As demonstrated by HRS' subsequent present value calculation performed at final hearing in this cause, for the 36 month actual contract period, at maximum staffing, HRS would realize a savings of no more than $39,802 by awarding the contract to Unisys, a savings of less than 2/10ths of 1 percent. None of HRS' present value calculations accounted for leave/vacation time or for any staffing levels under 100 percent for any other reasons. Based upon the terms of the RFP, the language of HRS' procurement manuals, and the expert testimony of Dr. Scott, any valid present-value analysis should have included a 36 month term contract. Any such analysis should also have taken into account varying levels of staffing, leave/vacation time, and overtime if staffed at the minimum required. A properly performed present-value analysis indicates that Deloitte's proposal is less expensive than the Unisys proposal in the following amounts over a 36 month contract term, at the staffing levels indicated: Employees Leave/Vacation Time Overtime Deloitte Savings 107 2 weeks none $12,791 96 none none $109,062 96 none 5.8 percent $ 18,327 46 none none $844,473 (Pet. Exh. 15) The only scenario in which the Unisys proposal is less costly than the Deloitte proposal, using the proper present value analysis, would be at 107 employees, with no accounting for leave time. This unlikely future scenario would result in a savings of no more than $47,378, or less than 2/10ths of l percent of the contract amount over 36 months. Because it requires an up-front payment of more than $1,600,000 (as compared to $78,000 for Deloitte), the Unisys proposal places the State of Florida at substantially more financial risk than the Deloitte proposal in the event of nonperformance by Unisys. On February 1, 1995, HRS posted its notice of intent to award the Contract to Unisys. Deloitte filed its timely notice of intent to protest on February 3, 1995, and filed its timely formal protest and request for hearing on February 13, 1995.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which declines the award to Unisys and takes into account the foregoing findings of fact and conclusions of law when deciding the future course of contracting for the services sought by the RFP. DONE and ENTERED this 12th day of May, 1995. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made with regard to purposed findings of fact submitted by the parties. Intervenor's Proposed Findings: Adopted. Adopted as to 1st sentence. Remainder not relevant with exception of last sentence which is adopted. Rejected, subordinate to HO findings. Accepted. Rejected, subordinate to HO findings. 6.-7. Rejected, cumulative. 8. Accepted. 9.-10. Rejected, subordinate to HO findings. Accepted. Rejected, subordinate to HO findings. Accepted. Rejected, cumulative. 15.-17. Rejected, subordinate. 18.-20. Rejected, relevance. 21.-22. Accepted. 23. Rejected, subordinate to HO findings. 24.-25. Accepted. 26.-29. Rejected, subordinate to HO findings. 30. Accepted. 31.-36. Rejected, subordinate. Rejected, weight of the evidence. Rejected, opinion, weight of the evidence. 39.-41. Rejected, subordinate. Respondent's Proposed Findings: 1.-3. Adopted, not verbatim. 1.-6. Adopted by reference. 7. Rejected, relevance. 8.-9. Rejected, cumulative, unnecessary. 10.-12. Accepted. 13. Rejected, cumulative. 14.-16. Accepted. Rejected, weight of the evidence. Rejected, relevance. Rejected, weight of the evidence. 20.-21. Rejected, argument. 22.-23. Rejected, subordinate to HO findings. 24. Rejected, argument. 25.-27. Rejected, subordinate, weight of the evidence. 28.-29. Rejected, relevance. 30.-31. Rejected, subordinate. Rejected, weight of the evidence. Rejected, subordinate, weight of the evidence. Rejected, relevance. 35.-36. Rejected, cumulative. Rejected, weight of the evidence. Accepted. Rejected, argument, weight of the evidence. Rejected, relevance, argument. 41.-42. Rejected, argument. Rejected, subordinate. Rejected, 20 percent difference, improper characterization. Rejected, relevance, argument. Rejected, argument, subordinate. Rejected, redundant, subordinate. Rejected, legal conclusion. Rejected, relevance, argument, lack of credible evidence. Rejected, weight of the evidence. Rejected, subordinate. Rejected, weight of the evidence. Rejected, relevance. Rejected, argumentative, legal conclusion. Rejected, legal conclusion, argument. Rejected, legal conclusion. Petitioner's Proposed Findings Of Fact: 1.-43. Accepted, though not verbatim in some instances. 44. Subordinate to HO findings. 45.-48. Accepted. Subordinate. Accepted. Subordinate. 52.-70. Accepted. COPIES FURNISHED: William E. Williams, Esq. Red D. Ware, Esq. Huey, Guilday & Tucker, P.A. 106 E. College Ave., Ste. 900 Tallahassee, FL 32301 William A. Frieder, Esq. Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 W. Robert Vezina, III Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Dr. Tallahassee, FL 32302 Steven A. Blaske Unisys Corporation 4151 Ashford Dunwoody Rd. Atlanta, GA 30319 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Kim Tucker, Esq. Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
Findings Of Fact Respondent provides services to the residents of Immokalee from office space which it is currently leasing from Sunburst. The lease of the present facilities expires on August 31, 1985. DHRS is in need of more office space than it currently fills in order to meet the growing demand for its services in the Immokalee area. Therefore, DHRS issued an invitation to bid, inviting interested persons to submit bids for its required office space. Three bidders responded: Badcock Furniture Corporation, Sunburst Urethane Systems, Inc., and Chuck Bundschu, Inc. Badcock Furniture Corporation is not a party to these proceedings in that it did not seek an administrative remedy under Section 120.53(5), Florida Statutes. The bid acquisition has been designated by DHRS as Lease No. 590:1590. DHRS formed a bid evaluation committee to evaluate the bids which were submitted. The committee, consisting of William Samford, Residential Service's Director for Development Services, Frank Last, Senior Human Services Program Manager for Economic Services, Frances H. Clendenin, Administrative Services Director, John S. Cato, General Services Manager, and Ed Gauthier, Human Services Program Administrator for the Immokalee programs, visited the three prospective bid sites and evaluated the bid proposals. Each member individually reviewed and rated the bids and recorded his or her ratings on a form entitled Evaluation Criteria (Award Factors). The individual ratings were admitted into evidence as HRS Exhibits 2, 3, 4, 5 and 6. After the individual review, the committee met together for purposes of reaching a consensus evaluation. Based on that consensus, the committee generated a memorandum to the Department of General Services outlining the twelve evaluation criteria used and the points awarded to each bidder. On or about March 7, 1984, DHRS published its notice of intent to award Lease No. 590:1590 to Chuck Bundschu, Inc., as the successful bidder. By stipulation, only four of the evaluation criteria are in dispute as to the points awarded to each bidder. Those criteria resulted in the following ratings: Criteria 1 - Rental rate including projected operating expenses to be paid by lessor. Out of a total rating of 30 points, Sunburst received 30 points because it had the lowest rental rate during the term of the lease and the option years. Chuck Bundschu, Inc., received 27 points based on a formula designed by the committee. Under the formula, the maximum of 30 points was awarded to the low bidder if that bid was below the rent that had been set as the area rate and the other bidders then received points based on a ratio between their bid and the low bidder. Criteria 2 - Conformance of space offered to the specific requirements contained in the invitation to bid. A total of 20 points was available to each bidder in this criteria. Sunburst received 18 points and Chuck Bundschu, Inc., received the entire 20 points. The basis for the lower point award to Sunburst was that some of the proposed office space was in a residential building and the second floor of the two-story building was being and would be used for migrant farm housing. The property of Chuck Bundschu, Inc., was totally suitable and was well located. Criteria 4 - Provision of the aggregate square footage in a single building. Proposal will be considered, but fewer points given, which offer the aggregate square footage in not more than two locations provided the facilities are immediately adjacent to or within 100 yards of each other. Both Sunburst and Chuck Bundschu, Inc. would provide space in not more than two locations. However, Sunburst's buildings did not have a covered walkway connecting the buildings and the Bundschu property did. Therefore, Sunburst received 8 points and Chuck Bundschu, Inc. received the maximum 10 points. Criteria 6 - The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of Departmental operations planned for the requested space. Sunburst received two points and Bundschu received the maximum of five points because the characteristics of the neighborhood and the actual layout of the property was more conducive to the conduct of Departmental operations. Specifically, Sunburst's property had a congested parking lot where many people gathered including some undesirable persons. These people and their activities resulted in a higher crime rate in the area. Further, migrant housing would exist on the floor above the offices that would house valuable food stamps, thereby creating a security threat. Finally, a proposed additional parking site would result in cars traveling across a walkway where clients and employees might be injured. Bundschu's property had none of these drawbacks. The memorandum from the bid evaluation committee to the Department of General Services stated the committee's findings and point award totals for the twelve criteria. That memorandum indicated that Badcock Furniture Corporation received a total of 59 points, Sunburst received 79 points and Chuck Bundschu, Inc., received 93 points. It is undisputed that a clerical error occurred in the memorandum and the totals as reported were incorrect. At hearing, testimony was given that the corrected totals should have been 91 points for Sunburst and 95 points for Chuck Bundschu, Inc. However, even these totals do not agree with simple addition of the points as they are listed separately by criteria. It is found that the correct totals for the separate points awards as stated in the memorandum is 90 points for Sunburst and 95 points for Chuck Bundschu, Inc. Despite the discrepancy in the actual point totals is reported in the memorandum, a review of the individual evaluation forms shows that each evaluator independently awarded Sunburst fewer points than Bundschu. While there was contradictory evidence regarding the actual total points awarded and the method by which the consensus was reached, the clear and convincing evidence is that Bundschu was evaluated to be the best bidder by every evaluator and the evaluators properly applied the criteria. It is undisputed that the property offered by Chuck Bundschu, Inc., is on property partially zoned "VR", and before offices could go into the building, a provisional use variance must be approved by the Board of Zoning Appeals of Collier County. The bid evaluation committee did not consider zoning in evaluating the bids because zoning was not an element specified in the invitations to bid. The invitation to bid does not require the proposed site to be compatibly zoned in order for the bid to be valid and responsive. If the contract is awarded and the successful bidder fails to make the space available as agreed, whether because of zoning or otherwise, the successful bidder shall be liable to DHRS for liquidated damages for each day that the property is unavailable. Zoning is not an element to be considered in the award of the bid.
Recommendation Based upon the foregoing, it is RECOMMENDED that a final order be entered which awards the contract for Lease No. 590:1590 to Chuck Bundschu, Inc., as having submitted the lowest and best bid proposal. DONE and ORDERED this 26th day of July, 1984, in Tallahassee, Florida. DIANE K. KIESLING 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 26th day of July, 1984. COPIES FURNISHED: Robert M. Grguric, Esquire 900 Sixth Avenue South Suite 201 Naples, Florida 33940 Anthony N. DeLuccia, Esquire Post Office Box 06085 Fort Myers, Florida 33906
The Issue Whether Respondent violated Section 760.10(1), Florida Statutes, by terminating Petitioner's employment with Respondent because of her race (African-American) and/or color (Black).
Findings Of Fact Petitioner, Charmaine Lewinson-Evans, was employed by Respondent, Gambro Healthcare, Inc., from November 2001 until June 2002, in the position of center director at the Ocoee, Florida, facility (Ocoee facility). The center director was the highest administrative job at the Ocoee facility. Petitioner was hired as an exempt employee, earning approximately $51,000 per year in salary. Petitioner is an African-American female and a member of a protected class. Respondent is an employer, as defined by the Florida Civil Rights Act (FCRA). Petitioner had been hired by Scott Yerger (Yerger), regional director for Respondent. He was Petitioner's immediate supervisor to whom she reported daily. At the time Yerger hired Petitioner, she had represented through the interview, her resume, and application for employment that she had an extensive nursing background, had functioned as a charge nurse, and had supervised professional and non-professional staff, as well as functioned as a team leader. However, at the time of her hire, Petitioner did not have the requisite management skills to run the Ocoee facility. Michelle Lee (Lee) was also employed by Respondent as a center director. Lee is currently the center director of the Orlando Southwest Clinic. She is also an African-American female and has reported to Yerger for the past several years. Center directors had monthly meetings wherein various matters were discussed, including monthly reports that were due to the regional director. These meetings were conducted by Yerger. Petitioner testified that she does not recall ever discussing monthly reports in the center director meetings. Lee testified that there were routine reports due each month by the center directors and that Yerger always went over the reports at each monthly meeting. Yerger testified that there were monthly meetings and that he went over the monthly reports that the center directors were to have prepared, both prior to April and after April 2002. Petitioner's failure to recall ever discussing the monthly reports at the center director meetings is not credible. Lee's testimony is credible. At the time of Petitioner's hire and for a period of time up to April 2002, all center directors had monthly reports due to Yerger by the 15th of each month. Yerger made it clear to the center directors how important it was to have the monthly reports in by the 15th of each month. The monthly reports prepared by the center directors for the regional director were vital to the operation of the clinic and the company. In April 2002, the monthly reports for the center directors changed in format, and Yerger sent out a template to all center directors for use in preparing the monthly reports. In the April 2002 center director monthly meeting, the template for the new monthly reports, which had been the subject of the e-mail previously sent to all center directors, was discussed. Petitioner testified that these monthly reports were derived from financial information she did not have and that it would take up to two days to prepare the reports. In fact, the monthly reports required of the center directors did not require financial information or a review of payroll records in order to prepare them. Any financial information necessary was already on the reports and had been placed there by Yerger. The only information required was clinical in nature and staffing reports. In fact, Petitioner did have access to financial information, if necessary, as well as instruction by Respondent as to financial information. Petitioner's role was to make certain the reports were due on time. Petitioner was also instructed on the items in the center director's checklist by use of a preceptor method. Petitioner's primary preceptor was Lee. Petitioner was instructed on patient statistics, patient liability reports, staff schedules, and erythropoietin (EPO) survey reports at healthcare plan meetings, and she was taught to close payroll and report statistics at the quarterly Quality Assurance (QA) meeting. Lee mentored Petitioner on how to do the monthly and other reports. Petitioner was trained in the same manner as all of the other center directors on the new monthly report format and how to complete the reports. During the time Petitioner was a center director, there was a total of seven center directors working under the supervision of Yerger. Petitioner was the only center director who turned in her monthly reports late without seeking prior approval to be late and without prior notification. The only center director that had difficulty with preparing the monthly reports was Petitioner. In April 2002, Petitioner received a raise from Respondent at the same time that all annual raises were given to employees. Petitioner had been with Respondent for only four months. She had not been employed long enough to warrant a formal review; as such, she was provided a standard raise of 3.5 percent. On April 10, 2002, Yerger received a letter from Rex Buchanon, M.D., medical director, indicating serious concerns about the direction of the Ocoee facility managed by Petitioner. After receipt of the letter, Yerger spoke with Petitioner about the contents. Improvement was immediately required of the Ocoee facility and Petitioner. Yerger offered to oversee the responsibilities for corrective actions and staff interviews. He directed Petitioner to focus on clinical issues. During this conversation on April 10, 2002, Yerger provided Petitioner with a series of items to complete and perform. These included cleaning and organizing her office in preparation for the visit by the Divisional President Scott Bartos; establishing a patient services committee to deal with patient complaints; completing the paperwork for Suzanne Giordano with Human Resources; locating Susan Bittner's transfer paperwork; and having the staff rounding reports pulled and ready for a Friday meeting with Elpidio Abreu, M.D. Dr. Abreu was coming to the Ocoee facility to specifically address the issues raised in the letter from Dr. Buchanon. Yerger asked Petitioner, the night before the scheduled meeting with Dr. Abreu, to pull the rounding reports and some of the QA information for him and Lee. Lee was subbing for Petitioner, who was not going to be present at the meeting. When Yerger, Lee, and Dr. Abreu arrived for the meeting the following day, no reports had been pulled, and Dr. Abreu had to wait while Lee and Yerger pulled the reports. Following the meeting on April 10, 2002, Petitioner did not clean up her office or remove the post-it notes, boxes, or clutter as requested. Petitioner did not set up the patient services committee as directed by Yerger. Five of the seven items mandated by Yerger were not completed by Petitioner by early May 2002. On May 8, 2002, Yerger held a meeting with Petitioner and went over matters that needed correcting and improving. Yerger considered this a Performance Improvement Plan. Yerger told Petitioner that although she had started out meeting expectations, she was falling behind. Yerger discussed with Petitioner her lack of follow through with tasks and initiatives that Respondent put out; her failure to complete them; her failure to meet the deadlines provided; and her failure to ask for any assistance from Yerger or to notify him of any difficulties with the reports. He also advised her that she continued to have difficulties in interactions with the staff and that she needed to maintain a professional manner with the staff at all times. He also reminded her that her body language was such that she would cross her arms and shake her head while staff were talking or giving their side of the story and, thus, she was not creating an environment for them to discuss issues. He also stated that the corrective actions process was supposed to be productive and that she was creating an opposite effect by her actions. Petitioner was given 30 days to make improvements in the areas outlined in the May 8, 2002, conversation. Contrary to Petitioner's assertions, Yerger did not ask Petitioner during the May 8, 2002, Performance Improvement Plan discussion to change places with Suzanne Giordano (Giordano). Such would have been highly ineffective and counter-productive to flip-flop positions at Ocoee facility like what was described by Petitioner in her testimony. Yerger did inquire in the May 8, 2002, meeting whether Petitioner was happy in her job as center director and whether she wanted to consider a different role in the company, but not in management. Following the Performance Improvement Plan meeting of May 8, 2002, Petitioner did not show improvement in the areas discussed. After the meeting, Petitioner continued to submit late reports, incomplete reports, and wrong reports and did not provide notification in advance of the reports being late. Petitioner acknowledged that her performance in the preparation of reports was not proficient and that she was still submitting the reports late, even after the meeting. After the Performance Improvement Plan discussion of May 8, 2002, Petitioner's attitude deteriorated. She became angry and upset and focused only on Yerger's not thinking she could perform her job. Other workers thought she was rude and abrasive. Yerger personally observed her being rude to other people and co- workers. Even when the reports were coming in late or were incomplete or wrong, Yerger would call Petitioner about this fact. However, no improvement of Petitioner's performance took place. Yerger did not have any difficulties with other center directors over performance, late reports, incomplete reports, or wrong reports. Several of the remaining seven center directors were African-American. Yerger received a written and verbal complaint from Giordano, charge nurse at the Ocoee facility, regarding Petitioner's request for Giordano to back date short-term care plans in violation of Respondent's internal policies. Anyone that is required to correct an entry in the short-term care plans is required to mark through the entry with a single line and note the "error" and put one's initials on the correction with a date. It would be improper and considered a falsification of the records to back date a document or care plan. The care plans required a nurse's signature on them contemporaneous with the date the action was taken, in order for the care plans to be complete. Several of the care plans containing the signature or initials of Petitioner were incomplete and had corrections not properly noted, in violation of Respondent's policy. Petitioner alleged that there had been a discriminatory motive in the assignment of Lee as her roommate for the center director conferences to be held in Nashville, Tennessee, and that Yerger was responsible. However, the evidence established that Yerger had nothing to do with the assignment of roommates at the Nashville conference held in June 2002. The roommate assignments were not racially motivated but were designed to accommodate the buddy system that had existed between Lee and Petitioner. After Petitioner did not show improvement following the 30-day period after May 8, 2002, Yerger, in conjunction with Loretta Castillo (Castillo), divisional human resources manager for the Southeastern Division, via telephone, discussed with Petitioner on June 21, 2002, her lack of improvement. In this conference, Petitioner admitted to Yerger that she had not been performing her job as center director up to Respondent's standards. It was determined that Petitioner would be terminated from her position as center director. During this meeting, Petitioner never complained or raised that any action by Respondent or Yerger was racially motivated. The decision to terminate Petitioner was based on Petitioner's failure to show improvement. The areas of poor performance were noted in the memorandum prepared by Yerger dated June 21, 2002, and executed by Petitioner on June 25, 2002. Petitioner had been informed she needed to have demonstrated improvements in her leadership and management skills. The memorandum outlined that Petitioner failed to demonstrate improvement and that she continued to struggle in providing leadership to employees and patients. Petitioner had recently reacted to an employee-related situation improperly by suspending an employee without further investigation or counseling with Human Resources or Yerger prior to the suspension. Petitioner's decision was based on her belief that the employee had been insubordinate to her, which was not the case. Petitioner had demonstrated poor judgment and failure to make sound decisions. Further, Petitioner had not demonstrated improvement in the areas covered by her Performance Improvement Plan of May 8, 2002. She had been unsuccessful in bridging the professional relationship with the medical doctors and staff. Yerger continued to hear about Petitioner's lack of professionalism. Based on Petitioner's inability to manage the Ocoee facility and to correct outstanding issues identified on May 8, 2002, she was terminated on June 25, 2002. The decision to terminate Petitioner was not based on her race or color, or any other impermissible factor. Petitioner was aware that Respondent had a policy for employees who felt that actions of an employee were racially motivated and for reporting any such complaint. During her employment with Respondent, Petitioner never availed herself of Respondent's policy for complaints regarding discrimination against any employee. Prior to her termination and the filing of the Equal Employment Opportunities Commission (EEOC) and FCHR charge, Petitioner never complained to anyone that any action against her had been the result of any racial animus by Yerger, nor had she expressed any such beliefs to Lee. Petitioner had been offered the opportunity of continuing to work for Respondent, but in a non-management position and not at the Ocoee facility. Petitioner declined such an option. Petitioner presented no evidence of any comparators or other center directors in regards to their treatment, performance, or handling by Respondent or Yerger. Petitioner did not present any evidence of racial motivation by Respondent during her case in chief; nor did Petitioner present any evidence of any comparators who were white who were treated any differently as a result of similar conduct on the part of Petitioner. Giordano was not a valid comparator of Petitioner since she was a charge nurse, a non- management hourly employee. Petitioner had no knowledge nor did she present any evidence of how Yerger treated the other center directors, how well they performed their jobs, how well they prepared the monthly reports, their leadership and management skills, who they may have roomed with during the Nashville conference, or that she was treated differently in regards to being able to hire employees. In fact, Petitioner testified that she had been authorized to hire employees, contrary to her EEOC charge statement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which DENIES Petitioner's Charge of Discrimination and dismisses her complaint. DONE AND ENTERED this 8th day of December, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 2003. COPIES FURNISHED: Charmaine Lewinson-Evans 9165 Pristine Circle Orlando, Florida 32818 John C. Stivarius, Jr., Esquire Epstein, Becker & Green, P.C. Resurgens Plaza, Suite 2700 945 East Paces Ferry Road Atlanta, Georgia 30326-1380 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Genesis of School Board's Minority Business Enterprise (MBE) Program The 1984 Omnibus Education Act, Chapter 86-336 Laws of Florida, did the following: Authorized district school boards to set aside up to 10 percent of their total funds allocated for construction of capital projects and 10 percent or more of the total amount of funds allocated for procurement of personal property and services, for competitive bidding among Minority Business Enterprises (MBE) only. Chapter 84-336, sec. 108, Law of Florida, codified as Section 235.31(1)(b), Florida Statutes (1985) (construction); Chapter 84-336, sec. 109, Laws of Florida, codified as Section 287.094(3), Florida Statutes (1985) (purchasing). Adopted in those newly enacted sections the definition of minority business enterprises which had been enacted in Chapter 82-196, sec. 2, Laws of Florida, codified as Section 287.094, Florida Statutes (1983). That act provided in part: "Minority business enterprise" means any legal entity, other than a joint venture, which is organized to engage in commercial transactions and which is at least 51 percent owned and controlled by minority persons. Required that minority business enterprise set-asides be used only to redress present effects of past discriminatory practices. Chapter 84-336, sec. 108 and 109 Laws of Florida; see also, Exhibit C and Exhibit B at 1 of "Background." Establishment of the Minority Contracting Committee On July 25, 1984, one month after the effective date of the 1984 Omnibus Education Act, the School Board established the Minority Contracting Committee (sometimes referred to as the Minority Business Enterprise Advisory Committee), to assist it in implementing the minority set-aside program authorized under the Act. Hearing Transcript Vol. II at 325; Exhibit A: July 13, 1984 Staff Memorandum re: Item B-35 on the agenda for School Board Meeting of July 25, 1984, and Minutes of July 25, 1984 School Board Meeting at 24; Corrected exhibit EE: Rules 6Gx13-3G-1.01(II)(E) at page 3 of 5, and 6Gx13-3G- 1.04, unnumbered paragraph 2 at page 1 of 6. The School Board has indicated to its staff that it generally intends to adhere to the recommendations of the Minority Contracting Committee. Hearing Transcript, Vol. I at 214-215. The Minority Contracting Committee's membership consists of a representative appointed by each School Board member, and representatives of various minority and majority business interests and as nonvoting members, selected School Board staff. Corrected Exhibit EE at page 3 of 5; Exhibit B at 2 of "Background." The following persons are, and were at all times material to this controversy, among the members of the Minority Contracting Committee: Newall Daughtrey, Co-Chairperson Tony Novo, Co-Chairperson Lourdes San Martin Maria Teresa Cruz Maria Luisa Castellanos Brenda Rivers School Board Staff (Nonvoting) Sam Blank Dr. Tee S. Greer, Jr. Rose Barefield-Cox (Since April, 1986) Calvin Jennings Janie Daniels Id; see also Exhibits E, G and AA. Sam Blank is Executive Assistant Superintendent, Office of Facilities Management and is the individual directly responsible for the School Board's school construction, school renovation, maintenance and plant operations. Hearing Transcript Vol. II at 323, Vol. I at 140. Blank was not an evaluator for the CA Contract. With the exception of the MBE certification process, he coordinated the evaluation of the applicants by Board staff. Hearing Transcript, Vol. I at 188. Dr. Tee S. Greer, Jr. is Associate Superintendent for Governmental Relations and Acting Associate Superintendent for Business Management. Dr. Greer is the individual charged with overall responsibility for School Board construction, renovation and plant maintenance. Dr. Greer is Blank's immediate supervisor. Dr. Greer reports directly to the Superintendent of Schools, who in turn reports directly to the School Board. Hearing Transcript, Vol. I at 139- 40. Dr. Greer was Chairman of the School Board's Capital Improvements Committee and an evaluator for the CA Contract. Hearing Transcript, Vol. I at 179-180; Exhibit JJ at 28, Exhibit V. Rose Barefield-Cox is, and has been since April, 1986, the Coordinator of the School Board's MBE Program. Barefield-Cox coordinated the MBE certification process used in connection with the CA Contract. Hearing Transcript, Vol. II at 545-49. Calvin Jennings is a Manager III in the School Board's MBE Program. Jennings assisted Rose Barefield-Cox in the MBE certification process used in connection with the CA Contract. Hearing Transcript, Vol. II at 563, 571. Lourdes San Martin and Tony Novo are principals of TASC as well as members of the Minority Contracting Committee. The Study Leading to the Implementation of the School Board's MBE Program Pursuant to the 1984 Omnibus Education Act, the School Board engaged the accounting firm of Deloitte Haskins & Sells to conduct a study of MBE participation in School Board contracting and procurement. The Deloitte Haskins & Sells study, Study of Contracting and Purchasing Practice of School Board for Purpose of Assessing the Effects of Such Practices with Minority Business Enterprises, was issued in January, 1985. Exhibit B at 1. In reliance upon the study's finding of disparate participation by MBEs in contracting and procurement activities of the Board, on February 6, 1985, the School Board adopted Resolution No. 85-3, relating to MBE participation in Construction Capital Outlay Projects and Procurement of Personal Property and Services. The resolution directed the Superintendent of Schools to establish an MBE program and adopted, as the School Board's definition of an MBE, the definition found in Section 287.094, Florida Statutes (1983). Exhibit C, page 1, Minutes, pages 2-9; see also paragraph 14b, ante. The School Board's Long Range MBE Goals As a result of the Deloitte Haskins & Sells' finding of disparate MBE participation in procurement by the School Board, the Board adopted on July 10, 1985, in its Rule 6Gx13-3G-1.02, ten-year "minority business percentage participation objectives" (MBE goals) as follows: Black 17 percent Hispanic 17 percent Women 17 percent Other 1 percent Corrected Exhibit EE: Rule 6Gx13-3G-1.02(II)(A) at pages 1-2 of 4. Board Rule 6Gx13-3G-1.02 further provides: Goals should be established to increase MBE participation to levels reasonably proportionate to the availability and capability of the respective MBE groups within Dade County. Corrected Exhibit EE: Rule 6Gx13-3G-1.02(I)(D); Hearing Transcript, Vol. III at 707. Administrative procedures established to implement MBE goals shall include department goals, i.e. goals for construction (capital outlay), commodity purchasing and professional services. Corrected Exhibit EE: Rule 6Gx13-3G-1.02(III) (unnumbered paragraph 3); Hearing Transcript, Vol. I at 175, Vol. III at 706. MBE goals shall be reviewed annually and annual goals adjusted by subtracting each MBE group's percentage of unassisted participation during the previous year from the ten-year goals. Corrected Exhibit EE: Rule 6Gx13-3G- 1.02(II)(B)(3), and (VI) at unnumbered paragraph 2. An MBE certification procedure shall exist to ensure that businesses seeking to participate in the MBE Program are "at least 51 percent legitimately owned, operated and controlled by minorities." Corrected Exhibit EE: Rule 6Gx13-3G-1.02(IV). The School Boards 1985-86 Annual MBE Goals The School Board established MBE goals for 1985-86 as follows: Black 16 percent Hispanic 10 percent Women 8 percent Other 1 percent Corrected Exhibit EE: Rule 6Gx13-3G-1.02(II)(B)(3) at pages 2-3 of 4; Hearing Transcript, Vol. 1 at 159; Exhibit H at 3-4. The reduction of the goals for women represented the judgment of the School Board, based on actual experience, that women had been more successful in securing School Board contracts than blacks and hispanics. Hearing Transcript, Vol. I at 172-73; Vol. II at 485, 566-67, see also Exhibit WW(5) at 29-30. Annual goals remain in effect until modified by School Board rule. Corrected Exhibit EE: Rule 6Gx13-3G-1.02(II)(B)(3); Exhibit H at 15, 25. The Role of the Minority contracting committee in the Development of the School Board's Ongoing MBE Policies The minutes of the January 31, 1985 meeting of the Minority Contracting Committee show that School Board staff distributed a Proposed MBE Program Development Schedule "clearly delineating" the task of the committee relating to development of rules implementing the School Board's MBE policy and establishing a timetable for it to do so. The schedule encompassed the period from January 31, 1985 through July 24, 1985. Exhibit II. The Proposed MBE Program Development Schedule attached to the minutes of the January 31, 1985 meeting of the Minority Contracting Committee provided that the Minority Contracting Committee would begin work on administrative procedures for MBE participation in consultant contracts at the committee meeting to be held on June 13, 1985. It projected that the review process would culminate with the School Board's adoption of a rule on that subject at the School Board's July 24, 1985 meeting. Id. The Minority Contracting Committee did not develop a proposed rule on MBE participation in consultant contracts as scheduled. Exhibit VV at 51-52, 73-74, 77-78, 82-83; Exhibit WW(5) at 18. Rules were adopted by the School Board for construction and purchase of commodities. Corrected Exhibit EE, Rules 6Gx13-1.03 and 6Gx13-1.04. The CA Contract is one of four major consulting contracts for architectural and engineering services which the School Board enters into. The other major contracts are contracts for the engineering projects consultant, architectural projects consultant and uniform building code inspector. These major architectural and engineering services contracts are subcategories of professional service contracts. Hearing Transcript Vol. II, page 479-80. Other professional services the School Board purchases by contract include educational consulting, legal, medical, production and security services. Exhibit VV at 15- 16. By their memorandum dated October 1, 1985, Mr. Blank and Dr. Greer informed the Superintendent of Schools that staff was "currently developing evaluation procedures," including "MBE requirements," for the selection of consultants including architectural and engineering firms. The memorandum further advised: "A proposed revision to the procedures manual, referenced in Board Rule 6Gx13-2C-1.08, [would] be prepared and brought to the Board for approval in the near future." Exhibit GG. Rule 6Gx13-2C-1.08 incorporates a procedures manual which includes forms and instructions for evaluating applicants for consulting services by architects and engineers. Exhibit DD. The committee did not recommend to the School Board rules on MBE participation in architectural and engineering consulting contracts. No rule was adopted by the School Board in the ordinary course of rulemaking prior to the School Board's request for proposals in connection with the major consultant contracts for the period July 1, 1986 through June 30, 1989, among which is the CA contract at issue here. Exhibit JJ at 116. The 1986-89 Consulting Architect Contract is Advertised by the School Board On March 24, 1986, the School Board announced its intention to contract with an architectural-engineering firm for project management and consulting architectural services in the areas of school facility planning and construction for the three- year period July 1, 1986 through June 30, 1989. The School Board initially established April 18, 1986 as the deadline for submitting proposals for the CA Contract. Exhibit D. The consulting architect is a major consultant upon whom the School Board relies "very heavily." Hearing Transcript, Vol. II at 618; Exhibit JJ at Joint ventures are not permitted by School Board policy to compete for the CA Contract for two reasons: (1) it is "very important" that the consulting architect have all the requisite services available in-house, Exhibit JJ at 38; Hearing Transcript, Vol. II at 609.10; and (2) the School Board is concerned that the joint venturers may not have worked together previously, and may not provide a stable team capable of the work, Exhibit JJ at 38, 48-49; Hearing Transcript, Vol. II at 610-11, 618-19. Moreover, the definition of an MBE adopted by School Board Rule 6Gx13-3G-1.01(II)(A)(1), excludes joint ventures from receiving preferential treatment as MBEs. Corrected Exhibit EE. Spillis Candela is currently, and has been for approximately 22 years, the consulting architect to the School Board. Hearing Transcript, Vol. III at 830; Exhibit JJ at 43-44. The Minority Contracting Committee Meeting of March 20, 1986 At the March 20, 1986 meeting of the Minority Contracting Committee, San Martin raised as an item of new business a proposed recommendation that the professional services subcommittee of the Minority Contracting Committee meet to discuss MBE participation in consultants' contracts because "a big chunk of those dollars that wouldn't come up every year are going to be coming up for a selection very soon. And I would hate for us not to have anything in place." Exhibit VV, page 21- 22; Hearing Transcript, Vol. II, page 464, line 17. The only budget information then before the committee was Sam Blank's guess that the four consultant contracts together represent approximately 30 percent of the School Board's architectural and engineering services budget. Exhibit VV at 28, lines 15 and 17; Hearing Transcript, Vol. II at 472-73. At no time thereafter was the committee provided with more precise budget information. Hearing Transcript, Vol. II at 473-74. The committee was not at any time aware of the actual percentage of the School Board's professional services budget attributable to the four major consultant contracts. No study had been undertaken by the committee or by the School Board to determine the percentage of the School Board's overall procurement budget attributable to architectural and engineering services contracts. Hearing Transcript, Vol. II at 571. These four contracts represent a small portion of the School Board's total annual purchases. Hearing Transcript, Vol. I at 169, lines 3-8. The committee did not have at any time statistical data on the MBE composition of the firms which had held or were currently holding the four major consultant contracts. Hearing Transcript, Vol. II at 570, 585. The only information before the committee were the statements of individual committee members, none of whom had in the past or currently held any of the four consultant contracts. Hearing Transcript, Vol. II at 575, 603- 04. The committee did not at any time have statistical data establishing the number of MBEs in Dade County in the architectural and engineering professions. See e.g., Exhibit WW (5) at 34. No full-service black-owned or women-owned architectural-engineering firm having all the services required to perform the CA Contract existed in Dade County prior to the adoption of the emergency rule on MBE participation. Exhibit JJ at 5, 7, 45, 49, 55; Exhibit J at page 2 of 3; Exhibit M at page 2 of 3, unnumbered paragraph 4; Hearing Transcript, Vol. II at 611-12, 622-23; Vol. III at 791. Blank advised the committee during that meeting that the bulk of architectural and engineering services contracts were beyond the scope of any procedures it might develop for evaluation of MBE participation in applicant firms. All of the architectural and engineering services contracts were about to be advertised. Some of the contracts had already been negotiated. Exhibit VV at 26, Hearing Transcript, Vol. II at 467-68. The selection process for the remaining four major consultant contracts was to be concluded within the next month to six weeks. Blank believed that MBE procedures could not be formulated and adopted in time to apply to the selection of the four major consultants. Exhibit VV at 25, Hearing Transcript, Vol. II at 466. San Martin suggested that: Staff recommend that the School Board adopt an emergency rule on MBE participation. Exhibit VV at 29-30, Hearing Transcript, Vol. II at 472; The four major contracts be readvertised and a paragraph inserted in the advertisements stating that consideration will be given to applicants' MBE participation. Exhibit VV at 31, Hearing Transcript, Vol. II at 477; and The existing contracts be extended, if necessary, to accommodate any delay in completion of the selection process. Exhibit VV at 88-89, Hearing Transcript, Vol. II at 507. Novo concurred in the suggestions that the committee request the School Board to take emergency action, Exhibit VV at 50, Hearing Transcript, Vol. II at 481, 483; Exhibit VV at 79, Hearing Transcript, Vol. II at 502, and that the consultant contracts be readvertised, exhibit VV at 79, 84, Hearing Transcript, Vol. II at 502, 505-06. After several motions offered by Novo and San Martin failed, (Exhibit E at unnumbered pages 4-6), the committee decided to hold a special meeting on March 27, 1986, "for the sole purpose of developing a resolution to be presented to the [School] Board concerning the selection process for Professional Services and specifically for those [four (4) consultant contracts] currently being advertised." Id. at 6. No specific MBE proposals existed at that time. Hearing Transcript, Vol. II at 483-84, 510. Minority Contracting Committee Special Meeting of March 27, 1986 Seven of the nine voting members and one of the three nonvoting members who attended the Minority Contracting Committee's March 27, 1986 special meeting were women. Novo did not attend the meeting. Exhibit G. At the March 27, 1986 special meeting, the Minority Contracting Committee adopted a resolution recommending that the School Board: Restart the selection process for the four major consultant contracts; Extend the current consultant contracts beyond their June 30, 1986 deadlines, if necessary; and Modify the Board's selection process for the major consultant contracts by creating a new eighth category on the Professional Services Qualification Form (BC/I) which would allow evaluators to award points for MBE participation. Exhibits G, H at 48, and I. Maria Luisa Castellanos prepared the draft of the resolution. Exhibit H at 2. Castellanos is a registered architect whose license the engineering firm of San Martin Associates, Inc. uses for architectural services. Hearing Transcript, Vol. II at 516. San Martin is president of San Martin Associates, Inc. Hearing Transcript, Vol II. at 513-14; Exhibit WW(1) at 23-25. Castellanos has been an employee of San Martin's firm. Exhibit WW(1) at 25. Castellanos assumed that blacks are discriminated against more than women and Hispanics, and women are discriminated against more than Hispanics, especially with regard to the major consulting contracts, all without the benefit of and statistical evidence. Exhibit H at 8, Hearing Transcript, Vol. II at 525. In explaining how she arrived at her recommended increase in MBE participation goals for women, Castellanos stated: So I looked at [the 1985-86 MBE goals] and I said, well, what would we do to up the Women participation and still try to make it even. So I said well, maybe the Black and Hispanic wouldn't be too mad if we took 2 percent from the Black and we took 2 percent from the Hispanic and we added those to the Women category. We're also looking at the fact that Women are about 50 percent of the work force and in reality we should take half of the Blacks and half of the Hispanics and dump it with the Anglo Women. But I know there was going to be a big uproar about it, so I said we'll -- we'll only take 2 percent from the Black and 2 percent from the Hispanic. So, the annual goals would be 14 percent for Blacks, 8 percent for the Hispanics, and 12 percent for the Women. Exhibit H at 4-5, Hearing Transcript, Vol. II at 521. The Minority Contracting Committee recognized that MBE participation levels are to be reviewed annually and the MBE goals modified to reflect the current unassisted participation levels. Exhibit H at 13, 30. Data on the 1985-86 MBE participation levels was not available to calculate the 1986-87 goals. Exhibit H at 27, 31-32; Hearing Transcript, Vol. II at 566, 569; Exhibit WW(5) at 44, 50. No data establishing the number of black and Hispanic women MBEs exist. Exhibit JJ at 117-18; see also Exhibit H at 27, 32. The committee's March 27, 1986 resolution stated: "The goals established [for 1985-86] are obsolete and the study and statistics are not available to establish goals for 1986-87." Exhibit I. Chairman Newall Daughtrey opined that the 1985-86 MBE participation levels probably are not substantially different from the 1984-85 levels used to establish the 1985-86 goals. Exhibit H at 27-28, Hearing Transcript, Vol. II at 534. Without any data to support changes in the School Board's MBE goals, the Minority Contracting Committee voted to adopt Castellanos' proposal. This proposal modified the School board's MBE goals by subtracting two percentage points from each of the black and Hispanic categories and adding them to the women category to increase the participation goal for women. This change in the goal would apply only to the four major architectural consulting contracts. Exhibit G; Exhibit H at 2-5, Hearing Transcript, Vol. II at 519. San Martin argued in favor of and voted in favor of that proposal. Exhibit G; Exhibit H at 48. The committee members recognized that the School Board did not have sufficient time to promulgate through normal rulemaking procedures a rule changing the 1985-86 goals which would apply to the consulting architect contract. Exhibit H at 23. The committee recommended that "as a temporary measure", the MBE goals for the four major consultant contracts only be modified as follows: Black 14 percent Hispanic 8 percent Women 12 percent Exhibit I at unnumbered page 1, second paragraph of the "resolved" clause; Exhibit H at 2-5, Hearing Transcript, Vol. II at 519. No overall annual MBE goals for professional services or for any other category of procurement have been established for 1986-87 by the School Board. See generally Hearing Transcript Vol. II at 605. In adopting Castellanos' proposal, the Minority Contracting Committee proposed the following new point category for applicants for the four major contracts "certified as 51 percent owned, operated and controlled by Blacks, Hispanics, or Women": Total Potential Category Points Weight Additional Points Black 26 x 5 = 130 Hispanic 15 x 5 = 75 Women 22.5 x 5 = 112.5 The committee recommended that a weight factor of 5 be established for the MBE participation category. Exhibit F at unnumbered page 2, paragraph D. The highest score possible on the point system in effect prior to the adoption of the emergency rule on MBE participation was 180 points per evaluator for a firm which had not done School Board work in the last five years, and 185 points for a firm which had done School Board work recently. A firm should not receive points in both categories 6 and 7 according to the instructions for completing these forms. See Exhibit N at 9- 9b of 11. The largest weight factor used under the previous point system was 4. A weight factor of 4 applies to only category one: "LOCATION OF OFFICE." Exhibit J, attachment B, at page 9 of 20. The intent in adopting the point scoring system was to award sufficient points to black and women MBEs to so that a black-owned or women- owned firm could be selected the number one applicant, even though its scores in the other categories were lower. Exhibits H at 8, 10 and JJ at 118. Professional Services Subcommittee Meeting of April 10, 1986 The Minority Contracting Committee's Professional Services Subcommittee met on April 10, 1986. Exhibit K. Blank and three other School Board staff persons attended, as were the following voting members of the Minority Contracting Committee: Maria Luisa Castellanos Maria Teresa Cruz Lourdes San Martin Exhibit K. Maria Teresa Cruz is an engineer with whom San Martin consults and co- ventures. Exhibit WW(1) at 61-62. Blank expressed concern with the recommendations the Minority Contracting Committee had adopted in the resolution of March 27, 1986 for two reasons: (1) the committee had recommended that the MBE goals be modified when no data existed to support the change, and (2) the committee had proposed a point scoring system which allowed more points for MBE participation than for other factors such as experience and capability. Exhibits J and M at page 1 of 3, at numbered paragraphs 1 and 2; Hearing Transcript, Vol. II at 595-96, 598, 599-600, 605-06. Blank presented to the subcommittee the following modification of the Minority Contracting Committee's recommended scoring system for certified MBE owned, operated and controlled firms: Category Points Weight Potential Black 10 x 5 = 50 Hispanic 2 x 5 = 10 Women 10 x 5 = 50 Exhibit J at page 2 of 3, paragraphs 8(A) and (D); Hearing Transcript, Vol. II at 602. Exhibit K at unnumbered paragraph 1; Hearing Transcript, Vol. II at 345, 597. The committee's March 27, 1986 resolution allocated more points to blacks and women than to Hispanics. Blank's modified point scoring system also allocated more points to blacks and women than to Hispanics. Blank developed the modifications without the benefit of any studies or statistical data. Exhibit JJ at 6-7. Castellanos, Cruz and San Martin requested that an emergency meeting of the entire Minority Contracting Committee has convened on either April 14 or April 15 to discuss the full committee's final position on the recommendation regarding MBE participation in the major consultant contracts. The recommendation was scheduled to be presented to the School Board on April 16, 1986. Exhibit K at unnumbered paragraph 2. Minority Contracting Committee Emergency Executive Committee Meeting of April 14, 1986 The Minority contracting Committee held an emergency meeting on April 14, 1986. The emergency meeting was convened as an executive committee meeting. Exhibits L and JJ. The committee adopted Blank's proposed modification of the MBE point scoring system and recommended to the School Board that MBE bonus points be awarded as follows: Blacks 10 Hispanics 2 Women 10 With the exception of Cruz, who did not believe the proposal went far enough, all members present, including San Martin, voted in favor of the recommendation. Exhibits L, JJ at 118-119, 127-30. When the committee asked the basis of the numbers under his modified point scoring system, Blank stated: "There is really no basis". Exhibits JJ at 7. The modified point scoring system increased the recommended disparity between points allocated to Hispanics and points allocated to women from 37.5 percent to 40 percent. Hearing Transcript, Vol. II at 602. San Martin moved to amend the Minority Contracting Committee's resolution to include a provision that the consulting architect be permitted to subcontract. Cruz seconded the motion. Exhibit L at 2. Sandra Riggs, Maria Louisa Castellanos, Lourdes San Martin and Maria Teresa Cruz voted for the amendment. Exhibit L at 2. The motion failed on a tie vote. Id. Blank advised the Minority Contracting Committee that, pursuant to state law in order to take effect immediately and to have a duration of 90 days, the committee's recommendation to the School Board would have to be adopted as an emergency rule, rather than adopted merely as a Board resolution. Accordingly, the Minority Contracting Committee's modified resolution was submitted to the School Board as a recommendation for the adoption of an emergency rule. See Exhibit M. No statistical study of the current level of MBE participation in the consultant contracts or any professional services or other contracts existed at the time the Minority Contracting Committee adopted its March 27, 1986 resolution and April 14, 1986 modified resolution. Exhibit WW(5) at 19; See Exhibit M at page 1 of 3, numbered paragraph 1, Hearing Transcript, Vol. I at 153-54, 164, 177; Vol. II at 596-97, 603- 04. San Martin did not, at any time prior to or during the vote on the March 27, 1986 resolution or the April 14, 1986 modified resolution, publicly announce an intent to form an ostensibly women-owned firm to compete for the consulting architect contract and did not file with the secretary of the Minority Contracting Committee within fifteen days of the vote, a memorandum of her intent to do so. This is so because at that time she had no such intent. Exhibit WW(1) at 5-6, 77. See also Finding of Fact 90, post. The School Board Meeting of April 16, 1986 Blank prepared the April 11, 1986 memorandum transmitting the Minority Contracting Committee's proposed emergency rule to the School Board. Exhibit M, Hearing Transcript, Vol. II at 595-98. Blank expressed "two major concerns the [School] Board should consider: The affirmative action goals of the MBE program have been established by Board rule at 16 percent for Blacks, 10 percent for Hispanics, 8 percent for Women and 1 percent for other MBEs. A change in these goals at this time, with no new data regarding participation levels, does not appear to be advisable. The proposed Minority Contracting Committee revisions to the selection process point system are not considered to be in the best interests of the Board. The Committee's proposed system would provide significantly more points for being a minority firm than for previous experience of the firm, or background, experience and capabilities of the firm, or past performance on similar projects. Emphasis is placed on the minority composition to the extent that it could overcompensate for deficiencies in the technical areas, which are so critical to satisfactory performance of these consulting services. It also should be noted that subcontracting of the four services in question is not advisable, and has not been allowed in past contracts. The use of joint ventures in lieu of subcontracting is allowed, with the exception of the Consulting Architect's contract, and is treated affirmatively in staff's recommendation. The Consulting Architect contract requires that all services be available in-house from a single firm." Exhibit M at page 1 of 3. Blank further stated: The proposed MBE points system is based on the fact that participation in these four contracts has historically been dominated by a Hispanic firm, with no Black or Female participation. It is also unlikely that a single Black or Woman owned firm will meet the minimum qualifications for these contracts; therefore, the emphasis on joint ventures. Id. at page 2 of 3. Despite these reservations, the Board staff recommended adoption of the emergency Rule "applicable only to the four consulting contracts currently being processed." Id. at page 2 of 3. On April 16, 1986, the School Board adopted Agenda Item 5-38, entitled "Emergency Rule 6Gx13 ER 85-86 No. 6: Selection of Consulting Architect, Engineering Projects Consultants, Architectural Projects Consultants and Uniform Building Code Inspector, AMENDED procedures manual to revise the Professional Services Qualification Form BC-I, which provides additional points for various levels of MBE involvement, applicable only to the four contracts." This emergency rule amended a part of the Procedures Manual - Building Committee Procedures for Selection of Architects, Engineers, Construction Managers, Land Surveyors and Other Consultants or Professional Services Required for Design or Construction of School Facilities, incorporated by reference in Rule 6Gx13-2C- 1.08, to include an eighth category on MBE participation. School Board Exhibit 3, Minutes of the April 16, 1986 School Board Meeting at 4; Exhibit CC. The School Board adopted the following specific reason for emergency rulemaking: SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO PUBLIC HEALTH, SAFETY AND WELFARE: This situation requires immediate action to prevent undue delay in the selection of the major consultants utilized to implement the Board's construction program. Such a delay would have a substantial adverse impact on the public health, safety, and welfare by delaying the delivery of new schools and improvements required to relieve overcrowding and renovations affecting the health, safety, and welfare of students and staff. Exhibit M at unnumbered page 4; School Board Exhibit 3. The School Board expressly provided that the emergency rule was to apply only to the four consultant contracts. Id. Peter Spillis is the principal of Spillis Candela responsible to service the CA Contract. Hearing Transcript, Vol. III at 829. Spillis received a copy of replacement item B-38 on the agenda for the School Board's April 16, 1986 meeting relating to the emergency rule. Hearing Transcript, Vol. II at 879. Spillis was present at the April 16, 1986 School Board meeting when the emergency rule was adopted. Hearing Transcript, Vol. III at 874. The consulting architect is required to attend all School Board meetings. Hearing Transcript, Vol. III at 832. Peter Spillis did not address the School Board during the Board's April 16, 1986 meeting on the proposed emergency rule on MBE participation. Spillis Candela did not at any time prior to the adoption of the emergency rule, or any time prior to submitting its application for the CA Contract, advise the School Board that it objected to the rule. Hearing Transcript, Vol. III at 880- 81. Peter Spillis was not aware of the Minority Contracting Committee or the School Board's MBE Program prior to the emergency rule. Hearing Transcript, Vol. III at 878-79. The School Board's staff did not advise Spillis of the existence of the Minority Contracting Committee and did not solicit his input in the development of the MBE Program or the emergency rule. Hearing Transcript, Vol. III at 880. Spillis Candela has never previously requested the School Board grant it a hearing under Sections 120.54 or 120.56, Florida Statutes, or any School Board rule. Cf. Hearing Transcript Vol. III at 887. Peter Spillis was concerned about the impact the emergency rule might have on Spillis Candela and expressed those concerns to Blank. Blank assured him that the rule would not affect Spillis Candela because there were no black- owned or women-owned full-service architectural and engineering firms which could take advantage of the emergency rule in competing for the consulting architect contract. Hearing Transcript, Vol. III at 687-88, 733. The Consulting Architect Selection Process The emergency rule took effect immediately on April 16, 1986. Exhibit HH; Section 120.54(9)(d), Florida Statutes (1985). The availability of the consulting architect contract was readvertised and the deadline for submitting applications was extended to May 9, 1986. The readvertisement stated: The selection process has been amended to include an affirmative action provision for minority firms. This provision will provide additional points in the screening instrument. (50 points maximum). Exhibit P. The maximum score possible under the emergency rule was 50 points for each of the nine evaluators, for a total of 450. See Exhibit M, attachment C, page 9b of 11, paragraph 8. On or before the May 9, 1986 deadline for submitting applications, the School Board received a number of applications for the CA Contract. Among them was a joint venture application composed, in part, of TASC principals Lemuel Ramos, Tony Novo and Jorge S. Azze. They subsequently withdrew that application from consideration. Exhibit WW(3) at 20; Hearing Transcript, Vol. I at 243-44; see also Exhibit WW(4) at 10. Ramos withdrew the joint venture application from consideration because he was advised that joint ventures could not be considered for the consulting architect contract. Exhibit WW(3) at 19, Hearing Transcript Vol. I at 264-65. After the CA Contract was readvertised with the provision for affirmative action, Ramos decided to submit a second application. Exhibit WW(3) at 19, 21. Ramos was permitted to physically remove the joint venture application from the School Board offices. Exhibit WW(3) at 20-21; Hearing Transcript, Vol. I at 243-44. TASC Ramos decided to submit the new application as one from a woman-owned company after he learned of the new School Board rule in the latter part of April, about April 22. Exhibit WW(3) at 18-25. As a result he amended the old joint-venture application with the former joint venturers and added two women as principals, Vivian Salaga, an architect and San Martin, an engineer. Id. at 20- 30, Hearing Transcript Vol. I at 243. On May 9, 1986, TASC submitted an application for the CA Contract. Exhibit Q. In its application, TASC characterizes itself as a "collaborative" of architects and engineers experienced in working with educational facilities. Exhibit Q at unnumbered page 33, paragraph 10 of Standard Form 255. Portions of the Ramos-Novo-Azze joint venture application were used in TASC's application. Hearing Transcript, Vol. I at 261-62; 243. TASC was incorporated by the Secretary of State on May 9, 1986. Exhibit R. Ramos organized TASC as a corporate entity and was its sole subscriber. Hearing Transcript, Vol. I at 245, Exhibit WW(3) at 18; Exhibit WW(2) at 29; Exhibit R; Exhibit VV at page 3 of Articles of Incorporation. Ramos formed TASC because joint ventures are not permitted for the consulting architect contract. Hearing Transcript, Vol. I at 265, 274; Exhibit WW(3) at 23. TASC consists of the following principals, who also comprise its board of directors: Vivian Salaga, President Lemuel Ramos, Executive Vice President Lourdes San Martin, Vice President Tony Novo, Treasurer Jorge S. Azze, Secretary Exhibit T at page 1, paragraph 5. The principals of TASC acting as its board of directors control TASC. Hearing Transcript, Vol. III at 943. A majority of TASC's board of directors are white Hispanic males. Exhibit S at unnumbered page 3. San Martin and Salaga each own 26 percent of the stock of TASC. Ramos, Novo and Azze own equal percentages of the remaining stock. Hearing Transcript, Vol. III at 903-04, 926-27; Exhibit S at unnumbered page 3. The principals of TASC have no agreements to make capital contributions based upon their stock ownership. They have simply been putting money into TASC on an as-needed basis. Hearing Transcript, Vol. I at 267; Exhibits WW(3) at 49-52, WW(4) at 42. San Martin and Salaga had never met each other until approximately two weeks prior to May 9, 1986. Ramos introduced them to each other at the second organizational meeting of TASC. Hearing Transcript, Vol. III at 902, 928-29. Ramos also: Proposed, and the other TASC principals agreed, that San Martin and Salaga be allocated more than 51 percent of TASC's stock to take advantage of the MBE emergency rule, Hearing Transcript, Vol. I at 293-94; Vol. III at 937- 38; Exhibit WW(3) at 23, 25-27; Provided a temporary address and telephone number for TASC, Hearing Transcript, Vol. I at 246, 254; Exhibit WW(2) at 28-29; Selected the persons who would form TASC, Hearing Transcript, Vol. I at 245, 247, 275; Selected TASC's attorneys, Exhibit WW(2) at 29- 30; and Coordinated the preparation of TASC's application for the CA Contract, Hearing Transcript, Vol. I at 245. Prior to May 9, 1986, the principals of TASC had never worked together as a group on any architectural and engineering or other project. Hearing Transcript, Vol. I at 242, 262, Vol. III at 932-33, Exhibit WW(5) at 14. Each of the principals of TASC is also a principal of a separate firm: Salaga is a registered architect, a full-time professor of architecture at Florida International University and the sole owner of Atelier Architects. Exhibit WW(2) at 3; Hearing Transcript, Vol. III at 896-97, 964. At the time of her deposition in this matter, Salaga described her duties for TASC as less defined than the duties of the other principals. Exhibit WW(2) at 25. Ramos is a registered architect and owner of Lemuel Ramos & Associates, Inc. Exhibit WW(3) at 3; Hearing Transcript, Vol. I at 240. San Martin is a registered structural engineer and owner of San Martin Associates, Inc. Exhibit WW(1) at 3-4; Hearing Transcript, Vol. II at 513-14. Novo is a registered mechanical and electrical engineer and owner of Professional Associated Consulting Engineers, Inc. ("PACE"). Exhibit WW(5) at 4. Azze is a registered architect and owner of Jorge S. Azze, Architect, P.A. Azze is also part of a joint venture known as Professional Engineering Specialty Team ("PEST"). Exhibit WW(4) at 3-4. With the possible exception of Azze, the principals of TASC intend to continue to operate their respective firms, notwithstanding the formation of TASC. Exhibits WW(3) at 42; WW(4) at 36; Hearing Transcript, Vol. I at 252-53, 291; Vol. III at 906-07, 944, 974-75. The principals of TASC agreed to use the services of each of their separate firms to the extent necessary to service the CA Contract. Exhibits WW(2) at 33-34, 37; WW(3) at 48; WW(4) at 39; WW(5) at 75-76; Hearing Transcript Vol. I at 290-91, 304-306, Vol. III at 973. This agreement was not disclosed in TASC's application for the CA Contract. TASC did not disclose that the 47 employees listed in its application included the employees of each of the five principals' individual firms and that the principals intended to keep them separately employed by their individual firms, although some employees ultimately might be employed by TASC. Hearing Transcript, Vol. I at 264-65, 307-08; see Exhibit WW(1) at 35-36. The School Board requires that any persons or firms not providing full-time services be listed in the application as consultants. Hearing Transcript, Vol. III at 799- 800. The five TASC principals claim to employ the following numbers of personnel: Salaga (Atelier Architects) has between 4 and 6 employees, Exhibit XX(5) at 3, 11; Hearing Transcript, Vol. III at 897; Lemuel Ramos & Associates, Inc., has between 15 and 17 employees, Exhibit WW(3) at 4; San Martin Associates, Inc., has 7 employees, Exhibit WW(1) at 43; Novo (PACE) has 14 employees, Exhibit WW(5) at 4; and Jorge S. Azze, Architect, P.A., has 3 employees, Exhibit WW(4) at 5. The five principals of TASC employ through their separate firms, between 43 and 47 people. Not all are full-time employees. It is not possible to determine what employees TASC had at the time it submitted its application for the CA Contract. The principals of TASC gave different accounts of the number of persons actually employed by TASC on that date: Salaga maintained TASC had 47 employees. Hearing Transcript, Vol. III at 921, 972-73. Ramos testified in deposition that TASC had between 15 and 20 employees, Exhibit WW(3) at 48. Ramos testified at the hearing that he did not count the number of employees TASC had, but that he believed it was 47. Hearing Transcript, Vol. I at 254. San Martin maintained TASC has 8 employees. Exhibit WW(1) at 15. Novo maintained TASC has no employees other than the employees of the principals' separate firms. Exhibit WW(5) at 79. Novo stated that TASC hoped to employ between 15 and 20 full-time employees. Exhibit WW(5) at 78; see also Finding of Fact 98d, post. Azze maintained TASC employs only the principals, but has interviewed three people it hopes to hire. Exhibit WW(4) at 43. TASC claims in its application (Exhibit Q) that the following persons are among its employees; yet each testified he has no employment agreement with TASC: John L. Tennison is an architect in Tampa, Florida. He has no employment agreement with TASC. Salaga only discussed with him doing administrative work for TASC, but did not discuss specifically the nature of the administrative work. Exhibit XX(1) at 9. Miguel A. Manteiga is not employed by TASC. He is employed by Lemuel Ramos & Associates, Inc. Exhibit XX(2) at 9. Thomas T. Cooper is not employed by TASC. His future employment with TASC depends upon whether TASC is awarded the CA Contract and what type of profit-sharing arrangement and benefits TASC will offer. Exhibit XX(3) at 17, 14-15. Guillermo Gonzalez is an employee of PACE. He does not have an employment agreement with TASC, but has been told by Novo that if TASC is awarded the consulting architect contract, he will work for TASC. Exhibit XX(4) at 3, 7, 12. Edmond M. Maurice is an employee of Atelier Architects. Whether he would be employed by TASC was not discussed the first time he met with the principals of TASC: "It was understood." Maurice has agreed to work for TASC at a salary of $50,000 per year as soon as it gets work for him to do. Exhibit XX(8) at 3, 8-9, 12. Lester F. Clayton is a part-time employee of Lemuel Ramos & Associates, Inc. Clayton made "a verbal commitment to be an employee" of TASC in June, 1986. The agreement was not in effect when TASC's application was submitted to the School Board on May 9, 1986 listing him as "Manager of Consultant Services." Exhibit XX(6) at 3, 13. TASC has never paid any employee a salary. Hearing Transcript, Vol. I at 254, Vol. III at 916, 946-47; Exhibit WW(4) at 42. TASC lists in its application the prior experience of the 47 employees it claims in support of its contention that it has had substantial school-related experience. At least a part of the experience listed consists of projects performed by persons who have no employment relationship with TASC. Hearing Transcript, Vol. II at 649-651. See Finding of Fact 98, ante. The definition of "employee" utilized by TASC in claiming 47 employees is not a definition which is accepted by the School Board staff. Had TASC disclosed the true nature of its relationship with the employees it listed, the School Board staff should have rejected the application as it did the other applications of the firms which disclosed consulting or joint venture relationships. Hearing Transcript, Vol. III at 986-87, 802-03. Finding of Fact 22, post. Although it had a valid corporate charter, TASC functions like a joint venture, not as a single, integrated architectural-engineering firm. TASC stated in its application that it had no consultants. Hearing Transcript, Vol. III at 923; Exhibit Q, SF 255, paragraph 6 at 4. The principals of TASC have an oral agreement that each of them will be paid an equal salary based upon the amount of money TASC makes, plus an equal hourly rate for time expended. Exhibit RR at page 1, paragraph 6; Exhibits WW. The oral agreement regarding compensation to principals was not disclosed in TASC's MBE Certification Statement, nor was it otherwise communicated to the School Board. Exhibit S at unnumbered page 5, paragraph (b); Hearing Transcript, Vol. II at 551-60. The existence of an oral agreement to divide salaries equally should have been disclosed in the MBE Certification Statement since such an agreement bears on whether the applicant is actually owned and controlled by minorities. Hearing Transcript, Vol. II at 552-53. TASC did not have its own office when it filed its application on May 9, 1986. Exhibit WW(3) at 58; Hearing Transcript, Vol. I at 254; Vol. III at 911. TASC also did not have a lease for office space. TASC has since entered into negotiations for lease of 3,000 square feet of office space, but does not have an executed written lease agreement. Exhibit WW(3) at 59; Hearing Transcript, Vol. I at 255-56, Vol. III at 978-979. TASC has also considered purchasing 15,000 square feet of office space to be allocated as follows: TASC 5,000 Atelier Architects (Salaga) 1,000 Lemuel Ramos & Associates, Inc. 3,000 San Martin Associates, Inc. 2,000 PACE (Novo) 3,000 Jorge S. Azze, Architect, P.A. 1,000 The office will be on the same floor so that the companies can work together. Hearing Transcript, Vol. I at 289-90; Exhibit WW(4) at 49. The square footage allocated to TASC is not sufficient to accommodate 47 employees and the School Board's as-built drawings, which the consulting architect is required to store. Hearing Transcript, Vol. III at 982. At the time it submitted its application for the consulting architect contract, TASC did not have a telephone listed in its name, but used the telephone number of Ramos & Associates, Inc. Exhibit WW(3) at 57. Hearing Transcript, Vol. III at 911-12. Four of the principals of TASC, Ramos, Novo, Azze and San Martin have provided substantial professional services to the School Board through their separate corporate entities during the preceding five years. Exhibit Q. TASC was not licensed and did not have a certificate of authorization to practice or to offer to practice architecture on May 9, 1986. Hearing Transcript, Vol. I at 267- 68. TASC did not so advise the School Board. Hearing Transcript, Vol. I at 269-70. TASC's submission of a letter of interest and an application for the CA Contract was an "offer" to provide architectural services. Cf. Hearing Transcript, Vol. I at 269. On June 20, 1986, TASC submitted to the Board of Architecture, Department of Professional Services, an application for certification to practice architecture. Exhibit T. MBE Certification On June 11, 1986, TASC submitted a sworn MBE Certification Statement to the School Board as part of the application process for the CA Contract. Exhibit S. The School Board's MBE staff certified TASC as an MBE owned and controlled at least 51 percent by women. Hearing Transcript, Vol. II at 549. Minority status is determined by a two-part test of ownership and control. Hearing Transcript, Vol. II at 550-51. The MBE staff relied upon the information TASC submitted in its certification statement and accepted the information as true. Hearing Transcript, Vol. II at 547-49. It conducted no independent investigation to determine whether TASC was in fact a legal entity other than a joint venture legitimately owned and controlled by women. Hearing Transcript, Vol. II at 560- 62. The same certification procedures were applied to all MBE applicants, including Spillis Candela. Hearing Transcript, Vol. II at 560. TASC was the only allegedly black-owned or women- owned entity to apply for the CA Contract. See Exhibit V: BC/I evaluation forms. TASC received the highest possible score of 450 in category 8 for MBE participation. See Exhibit U at unnumbered page 2. On June 11, 1986, Spillis Candela submitted a sworn MBE Certification Statement to the School Board as part of the application process for the consulting architect contract. Exhibit PP. Spillis Candela was certified as an Hispanic MBE and received the maximum 90 points available to an Hispanic firm in category 8 for MBE participation. See Hearing Transcript, Vol. II at 562; Vol. III at 721-22; Exhibit U at unnumbered page 2. Evaluation of the Applications by the Capital Improvements Committee School Board staff reviewed the applications for the CA Contract and determined that some applicants disclosed on their applications that they did not have the required full-time architectural and engineering employees in- house. Those applicants were eliminated from consideration. Hearing Transcript, Vol. II at 620-623. The Capital Improvements Committee reviewed and rated applications on the eight categories listed in Form BC/I and then conducted interviews of the top five applicants for the CA Contract using form BC/II to rate performance at the interview. The Capital Improvement Committee assumed the validity and accuracy of all of the information provided by TASC and undertook no independent investigation of it. Hearing Transcript, Vol. I at 183-84, 187, 644-45. TASC received identical scores from each of the nine evaluators in the following categories: Factor Rating Weight Score 1. Location of Office 10 4 40 2. Years Firm/Individual 6. Recent Projects with School Board Firm/Individual 0 10 3 0 30 8. MBE Participation 10 5 50 See Exhibit U at unnumbered page 2. 125. TASC received a total of 360 points in category 1 for having a Dade County office. (40 points x 9 evaluators) Exhibit U at unnumbered page 2. It should not have received those points, for TASC did not have a Dade County office of its own on the date it filed its application. Findings of Fact 106- 108, ante. Hearing Transcript, Vol. II at 651-52. TASC received 309 points in category 3 for the collective experience of the persons listed as employees in its application. The experience for which TASC received credit is attributable to persons with whom TASC had no employment relationship. Hearing Transcript, Vol. II at 650. TASC received more points than it should have received in category 3, but it is not possible to determine, on the basis of the record, how many fewer points should have been given. TASC received 134 points in category 4 for staff background and experience, and having all requisite expertise in- house. TASC did not have the staff described in its application on the date it submitted its application, and was not entitled to the points it received in category 4. Hearing Transcript, Vol. II at 645-649. TASC received 309 points in category 3 for the substantial school- related work claimed by its principals and "employees," including a substantial amount of work done for the School Board in the preceding five years. In category 6, TASC, as an entity, received 270 points for not having done any School Board work in the preceding five years, which is inconsistent. Exhibit U, unnumbered page 2. On July 8, 1986, School Board staff notified the Capital Improvements Committee that the evaluation of CA candidates was completed. Spillis Candela was listed number two with a total score of 3193. TASC scored only twenty-two more total points than Spillis Candela. Exhibit U. This determination was erroneous for TASC received 360 points it was not entitled to in category 1, and excessive points in categories 3, 4 and 6. The rankings were as follows: 1. TASC 3215 Spillis Candela 3193 Wolfberg, Alvarez & Associates 3085 4. Harper/Buzinec/Carreno 3073 5. Smith Korach Hayet Haynie Partnership 2732 Staff recommended that the Capital Improvement Committee (1) confirm the rankings at its regular meeting on July 14, 1986, (2) negotiate the consulting architect contract with TASC and (3) make a recommendation to the School Board to approve the contract at its July 23, 1986 meeting. Id. Blank explained to the Minority Contracting Committee at its July 24, 1986 meeting, that he felt the point scoring system had overcompensated firms for MBE participation. After scoring the applicants using Board form BC/I (the first phase of the selection process), MBEs were listed as number one for all four major contracts. Hearing Transcript, Vol. II at 695-96. Novo and San Martin did not, as members of the Minority Contracting Committee, at any time prior to their forming TASC or at any time thereafter, file a public disclosure statement in connection with their application for the CA Contract. The School Board did not, and has not, at any time voted to exempt Novo and San Martin from the conflict of interest provisions of Sections 112.313(3) and 112.313(7), in connection with the CA Contract. The School Board did not provide the notice of its intended decision to enter into negotiations with TASC for the CA Contract, in the form required under Section 120.53(5)(a), Florida Statutes (1985) to Spillis Candela or any other applicant for that contract. Subsequent School Board Action On July 9, 1986, the School Board directed staff to allow Emergency Rule 6Gx13-ER 85-86 No. 6 on MBE participation to expire, and to hold the selection of a consulting architect in abeyance pending the adoption of a new rule on MBE participation, which would treat all minorities equally. Exhibit W at 4, Item D-3. On July 10, 1986, the Board of Architecture, Department of Professional Regulation, issued TASC a Certificate of Authorization to practice architecture. Exhibit X. On July 15, 1986, the emergency rule expired by its own terms. See Section 120.54(9)(c), Florida Statutes (1985); Exhibit O. On July 23, 1986, the School Board rescinded its July 9, 1986 action and directed staff to continue the selection process for the consulting architect as established under the expired emergency rule. Exhibit Z at 4, Item 5-72. The School Board has stayed negotiating the consulting architect contract with TASC. See Section 120.53(5)(c), Florida Statutes (1985). The School Board has also stayed the selection process for the other three consultant contracts which were the subject of the emergency rule. Hearing Transcript, Vol. III at 697-98.
Recommendation It is RECOMMENDED that the School Board of Dade County: Enter a Final Order upholding the formal written protest filed by Spillis Candela and Partners, Inc. and Negotiate pursuant to the provisions of the Consultants' Competitive Negotiations Act with Spillis Candela as the most highly qualified applicant to receive the consulting architect contract. DONE AND ORDERED this 15th day of December, 1986, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 15th day of December, 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-3002BID The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings of Proposed Findings of Fact Submitted by Petitioner (Spillis Candela & Partners, Inc.) The proposed findings of fact for Spillis Candela & Partners, Inc., have generally been accepted in the Recommended Order. Rulings on Proposed Findings of Fact Submitted by Respondent (The School Board of Dade County) 1-3. Rejected as statements of law. Covered in Finding of Fact 16. Covered in Finding of Fact 123. Rejected as unnecessary. Covered in Findings of Fact 16 and 123. Rejected as unnecessary. Rejected as unnecessary. Generally rejected as unnecessary. Footnote 1 is rejected on the grounds that the existence of TASC's corporate charter does not control whether it should be treated as a joint venture given the findings of fact made in paragraphs 89-111. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected for the reasons stated in Conclusions of Law section V. Rejected as unnecessary. Rejected for the reasons stated in Conclusions of Law section III. Covered in Findings of Fact 6, 20 and 67. Rejected as unnecessary. Rejected as unnecessary. Rejected as irrelevant. Rulings on Proposed Findings of Fact Submitted by Intervenor (The Association of School Consultants) 1-4. Rejected as Conclusions of Law. Rejected as unnecessary and covered in Finding of Fact 7. Covered in Finding of Fact 7b. Covered in Finding of Fact 8. Covered in Findings of Fact 16 and 64. Rejected as a restatement of law. Rejected as unnecessary. Covered in Findings of Fact 6-8. Covered in Findings of Fact 1 and 64. Covered in Finding of Fact 64. Covered in Finding of Fact 20. Rejected as unnecessary and inherent in Finding of Fact 20. Covered in Finding of Fact 18. Rejected as unnecessary. Covered in Finding of Fact 20. Covered in Finding of Fact 67. Rejected as unnecessary. 21-22. Rejected for lack of transcript citation. See Rule 22I- 6.13(3), F.A.C. Covered in Findings of Fact 68 and 77. Rejected as unnecessary. Covered in Finding of Fact 81. Covered in Finding of Fact 81. Rejected as irrelevant. Covered in Finding of Fact 150. Rejected as irrelevant. Covered in Finding of Fact 153. Rejected for lack of record support. Covered in Finding of Fact 136. Rejected as unnecessary. Rejected as unnecessary. Covered in Finding of Fact 93. Covered in Finding of Fact 103. 37-40. Rejected as statements of law. Covered in Finding of Fact 149. Rejected as a statement of law. 43 Covered in Finding of Fact 103. Rejected as irrelevant. Rejected as irrelevant. Rejected as unnecessary. Rejected as unnecessary. Rejected as a conclusion of law. Rejected for the reasons stated in Finding of Fact 111. Covered in Findings of Fact 105 and 106. Rejected as unnecessary. Covered in Findings of Fact 45-60. 53 Covered in Finding of Fact 45. Rejected as unnecessary. Covered in Finding of Fact 17. Covered in Finding of Fact 27. Covered in Findings of Fact 67-77. Rejected as a statement of law. Rejected as unnecessary. Rejected as unnecessary. Rejected for the reasons stated in Finding of Fact 53. Accepted in Findings of Fact 74 and 90. 63-66. Rejected as conclusions of law. 67-73. Rejected as unnecessary. 74. Rejected for the reasons stated in Findings of Fact 108- 113. 75-80. Rejected as conclusions of law. 81-84. Rejected as irrelevant. Covered in Finding of Fact 148. Sentence 1 covered in Finding of Fact 147, sentence 2 rejected as lacking record basis. Covered in Finding of Fact 75-77. Rejected as irrelevant. Rejected as a conclusion of law. Covered in Finding of Fact 131. Rejected as unnecessary. Covered in Finding of Fact 75 to the extent relevant. 93-95. Rejected as unnecessary. 96. Covered in Finding of Fact 136. 97-98. Rejected as unnecessary. Rulings on Proposed Findings of Fact Submitted by Intervenor (Wolfberg-Alvarez & Associates) No findings of fact were submitted by Wolfberg-Alvarez & Associates. COPIES FURNISHED: Eugene D. Stearns, Esquire STEARNS, WEAVER, MILLER, WEISSLER, ALHADEFF & SITTERSON, P.A. One Biscayne Tower 2 South Biscayne Boulevard Miami, Florida 33131 Phyllis O. Douglas, Esquire School Board of Dade County, Florida Suite 301 1450 N.E. Second Avenue Miami, Florida 33132 Bernard S Mandler, Esquire SMITH & MANDLER 1111 Lincoln Road Miami Beach, Florida Gerhardt A. Schreiber, Esquire SCHREIBER, RODON-ALVAREZ, P.A. 430 South Dixie Highway Suite 10 Coral Gables, Florida 33146 Dr. Leonard Britton School Board of Dade County, Florida Suite 301 1450 N.E. Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
The Issue The issues are whether the intended contract awarded to Intervenor, The Henry and Rilla White Foundation, Inc. (Intervenor or White), pursuant to Request for Proposals #P2062 (RFP) for an Intensive Delinquency Diversion Services (IDDS) program in Palm Beach County, Florida (Circuit 15), is contrary to Respondent’s governing statutes, policies and rules, and the RFP. Petitioner, Juvenile Services Program, Inc. (Petitioner or JSP), timely challenged the intended award, and alleged that the award to Intervenor was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Respondent is an agency of the State of Florida and is the procuring agency for this proceeding. Petitioner is a not-for-profit corporation duly organized under the laws of the State of Florida. Intervenor is a not-for-profit corporation duly organized under the laws of the State of Florida. On November 23, 2009, Respondent issued the RFP to select a provider to operate IDDS programs in multiple counties, multiple circuits, within Florida. Petitioner did not protest the specifications of the RFP within 72 hours of the issuance of the RFP. Petitioner and White submitted timely responses to the RFP. Both sought the award for Circuit 15. On or about March 5, 2010, the Department posted its NOAA and informed all parties of its intent to award the contract at issue to Intervenor. The NOAA ranked White, first, with 1549.78 points; JSP, second, with 1451.34 points; and Urban League of Palm Beach, Inc., third, with 862.58 points. Petitioner filed a formal protest of the intended award to White on March 15, 2010. Thereafter, representatives from Petitioner and Respondent met to attempt resolution of the protest, but were unsuccessful. As the case moved forward to trial, White petitioned to intervene as the first ranked proposer. It is uncontested that White and JSP have standing in this matter. Throughout these proceedings, Petitioner maintained that Respondent scored the proposals contrary to the specifications of the RFP. Additionally, Petitioner claimed that the persons appointed to evaluate the proposals for the award did not have the requisite experience and knowledge in the program areas, and service requirements sufficient to score the proposals. Under the RFP, three components were to be scored by the evaluators: a technical section; a financial section; and a past performance section. A team of three evaluators independently scored the proposals submitted. Department program area managers selected the evaluators, who were then approved by the Department’s Deputy Secretary. All evaluators were trained in the evaluation process. In order to assure that appropriate employees are selected to serve as evaluators, Amy Johnson, Respondent’s chief of contracts, created a spreadsheet to identify those employees who are qualified to evaluate different types of procurements. The spreadsheet notes which program service area each employee is approved to serve. All of the evaluators in this case were chosen and deemed credentialed by Respondent to evaluate the subject RFP. In this case Karen McNeal, Jeffrey Balliet, and Cheryl Surls were selected and approved to evaluate the responses to the RFP. Ms. Johnson insured that the evaluators were trained to perform their duties. In this regard, Ms. Johnson reviewed the rules of the evaluation process and a generic evaluation with each of the evaluators. Training for the evaluators included how to score, along with sample scoring sheets. Although Ms. McNeal had not served as an evaluator prior to this case, she was appropriately trained and instructed in the methodology and guidelines for scoring proposals. Further, her job training and experience assured that she was familiar with IDDS program services. Mr. Balliet has served as an evaluator for proposals for approximately ten years. Mr. Balliet was appropriately trained and instructed in the scoring process. Additionally, Mr. Balliet’s work experience also qualified him to evaluate the IDDS proposals encompassed within the RFP responses. Finally, Ms. Surls has been familiar with the programs and services of IDDS for several years. She also completed RFP evaluation training prior to being placed on the spreadsheet list of potential evaluators. On January 11, 2010, Elaine Atwood, the procurement officer for the instant RFP, conducted a conference call with the evaluators for this case. All of the evaluators were familiar with the IDDS program and were provided an opportunity to ask Paul Hatcher, the author of the scope of services for this RFP, any program question regarding IDDS and/or the RFP. The Evaluation Team Ground Rules and Instruction specified that the evaluators were to read, evaluate, and score the proposals based upon the scoring sheet matrix. The evaluators were directed not to speak to other evaluators, nor to consider any information from any source other than the information provided within the proposal itself. If any evaluators were to require assistance, he or she was instructed to contact Ms. Atwood. All scoring was to be done based upon the solicitation document and the proposal submitted. The matrix for scoring assigned a score from 0 to 5 depending upon how well the proposal addressed the specification requirement. A score of 5 constituted the highest rating, and only those proposals that exceeded all technical specifications and requirements for the service component specified, with innovative, comprehensive, and complete detail were to receive that score. A score of 0 would be assigned when the proposal did not address the service component specified, or the evaluator could not locate the information in the proposal necessary to use another rating number. Petitioner maintained that one evaluator, Ms. McNeal, failed to follow the directions related to changes to scoring. It is concluded that Ms. McNeal adequately marked the score sheet, such that there was no confusion as to the score awarded, or the time of its entry. Contemporaneous with an initial score of “5” for the category “Management Capability,” Ms. McNeal re-marked the JSP score to a “4.” Similarly, Ms. McNeal re-marked the JSP score for the category “Consideration 1" from “5” to “4.” Any “change” occurred in the matter of moments that it took for Ms. McNeal to re-mark the score sheet, and did not indicate a reflection or after-thought of “change.” If anything, the “change” was to correct an error of marking. Ms. McNeal’s testimony as to the marking of the score sheet and her rationale for re-marking it has been deemed credible. Any deviation from the instructions as to a requirement that “change” must be documented is deemed minor or insignificant. Documenting a “change” is deemed minor and insignificant in this case, because the notation for the score of “4” was contemporaneous with the initial mark and not a later after- thought. Petitioner also challenged Ms. Surls’ award of the score “3” to all of JSP’s categories. Petitioner maintained that such an award demonstrated a lack of understanding regarding the subject matter addressed. To the contrary, Ms. Surls also awarded the score of “3” to White. The only category that exceeded “3” on Ms. Surls scoring of White was "Behavioral Management," for which Intervenor received a “4.” Ms. Surls was consistent and thorough in her review of the proposals and commented appropriately as to the basis for each score. The Technical Proposal narrative submitted by White did not exceed sixty pages. Petitioner did not contest scoring where an evaluator increased JSP’s score without comment. None of the alleged “changes” to scoring gave any proposal an unfair advantage. All proposals were given the same consideration and thoughtful review. The Department has used RFPs to cover multiple circuits in numerous instances. Petitioner did not timely challenge the process of providing for proposals for multiple circuits. Moreover, no evidence supports a finding that the process of covering multiple circuits within one RFP is inherently flawed or contrary to law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Petition filed by Juvenile Service Program. DONE AND ENTERED this 14th day of March, 2011, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 14th day of March, 2011. COPIES FURNISHED: Tonja White Mathews, Esquire Department of Juvenile Justice The Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Andrea V. Nelson, Esquire Walter Kelly, Esquire The Nelson Law Firm, PLC 1020 East Lafayette Street, Suite 214 Tallahassee, Florida 32301 Maureen McCarthy Daughton, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Secretary Department of Juvenile Justice The Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-1300 Jennifer Parker, General Counsel Department of Juvenile Justice The Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-1300
The Issue Whether Respondent's rejection of all bids submitted in response to ITB-05-23-12, relating to a contract for annual elevator maintenance and repair services, is illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact Respondent Florida School for the Deaf and the Blind is a state-supported residential public school for hearing-impaired and visually-impaired students in preschool through 12th grade. Access to the School is restricted for the protection of the students that are enrolled there. Visitors to the School campus must obtain credentials through a visitor identification badging system maintained by the Campus Police Department before they are permitted to enter. There are only two locations from which access badges may be obtained. The first is the Campus Police Department Communications Center and the second is the Campus Police Department Guardhouse at the Genoply Street gate. There are no off-campus locations from which badges may be obtained. Petitioner Traveler is a corporation registered with the Department of Business and Professional Regulation under the provisions of chapter 399, Florida Statutes, to construct, install, inspect, maintain, and repair elevators. Mr. Mark DeWitt is an owner of Traveler. Otis was the incumbent contractor providing service to the School's elevators, a position it had held for the last three years. On May 23, 2012, in Invitation to Bid 05-23-12 (the ITB), the School solicited competitive bids for the award of a contract to provide elevator maintenance, inspection, and repair services for elevators at various locations on the School campus (contract). The ITB was a one page document which stated: The Florida School for the Deaf and the Blind, 207 N. San Marco Avenue, St. Augustine, FL 32084 will receive bids in the Purchasing Department June 14, 2012, until 2:00 p.m. for the purpose of selecting an Elevator contractor for supplying all labor, material, and ancillary services required for the scope listed below. Scope of Project: The purpose and intent of this invitation to bid is to select Elevator contractor who is OEM certified and OEM trained to provide preventative maintenance (PM) services to elevators on a monthly schedule at various campus locations and who will deliver and install parts and provide emergency repair service for a period of (1) year with the option to renew additional years contingent upon availability of funding and satisfactory performance by the contractor. Licensing Requirements: All contractors must possess any applicable licenses required for this type of work per the State of Florida Department of Business and Professional Regulation. Mandatory Pre Bid Conference: A mandatory pre bid conference will be held at The Florida School for the Deaf and the Blind, 207 N. San Marco Avenue, St. Augustine, FL 32084, Hogel Building #27, Conference Room on June 7, 2012 at 10:00 a.m. All attendees will be checked through Campus Security, so allow ample time. Attendance at this pre bid conference is mandatory in order for all potential bidders to receive the benefit of answers to theirs and other's technical questions first hand. It is imperative that all the information be disseminated in a public forum with all potential bidders present to minimize confusion or misunderstandings. Additions or changes to the original bid documents resulting from this conference of a material nature will be documented in the form of written addenda and distributed to all attendees. Please note that if you are late to this mandatory pre bid conference you will not be eligible to sign the attendance roster and therefore may not submit a bid. Any person with a qualified disability requiring special accommodations at the pre bid conference and/or bid opening shall contact the Purchasing Office at 904-827- 2356 at least (5) working days prior to this event. If you are hearing or speech impaired, please contact this office by using the Florida Relay Services which can be reached at 1-800-955-8772. The Florida School for the Deaf and the Blind reserves the right to reject any and all bids and accept minor irregularities in the best interest of the State of Florida. Neither Traveler nor any other bidder filed a notice of protest to the terms, conditions, or specifications contained in the solicitation within 72 hours of the posting of this solicitation. As provided in the ITB, a pre-bid conference was held regarding the contract at 10:00 a.m. on June 7, 2012, in the Hogel Maintenance Building Conference Room. Mr. DeWitt and Mr. Jim Halstead, another owner of Traveler, arrived at the conference room about 9:40 a.m. They had taken about two minutes to pass through the security gate at the front of the campus, and about ten minutes more to then navigate the speed bumps, stop signs, and crosswalks to arrive at the Hogel Maintenance Building area and make their way to the conference room. Prior to 10:00 a.m. two cars, containing Mr. Joe Ramos and Mr. Max Stanley of Kone Elevators and Mr. David Baskin of Otis, were at the Campus Police Department Communications Center attempting to get access badges. Security Officer Victoria Cannon attempted to scan their identification cards to process them through the electronic visitor identification manager software, but the program was "frozen" on her computer screen and she was unable to do so. She attempted to "tinker" with the computer to get it to work, but was unsuccessful. She instead checked the visitors' identification and prepared the old handwritten badges that had been used prior to the electronic scan system. These were self-adhesive badges with a red background that the occupants of the vehicles put on their clothes. The old badges had not been used for about seven years, because the School had put in the electronic system to enhance security. A stock of the old badges had been maintained to use as a temporary backup if the electronic system went down. Officer Cannon testified that the men were "delayed a little" but provided no more specific estimate as to the length of time. When the three men left the Campus Police Department Communications Center, Officer Cannon then communicated with Security Officer Bruce Hardy in the guardhouse to let him know that the visitors had been approved for entry onto the campus, so they would not have to be run through the system at the guardhouse. Campus Police Chief Jerry Chandlee was at the police guardhouse on Genoply Avenue with Officer Hardy when the call to Officer Hardy from Officer Cannon came in. When the first vehicle arrived, Chief Chandlee saw the red temporary visitor ID badge. It was about 9:55 a.m. He decided that he wanted to issue the standard electronic visitor ID badge so that identification information would be collected electronically, as the system had been set up to do. The electronic information allows a check with the Florida Crime Information System and the National Crime Information System. Chief Chandlee then called Officer Cannon to find out why the men had been given the old red manual badges and learned that her computer had not been working correctly. The second vehicle arrived at the gate about 9:58 a.m. Chief Chandlee directed Officer Hardy to request driver's licenses again from all three men and to process them through the electronic system. Chief Chandlee said it only took about a minute to process each electronic identification card. Chief Chandlee learned when talking with the occupants of the second vehicle that the men were seeking entry to the campus to attend the pre-bid conference. Chief Chandlee was requested to make a courtesy call to the location of the bid meeting informing them that the men had been detained by security and might be late. Chief Chandlee apologized for the delay and asked Officer Hardy to make the call. When Officer Hardy called Administrative Assistant Donna Thompson to explain that bidders had been held up by the Campus Police Department, she replied, "Well, it's ten o'clock. So they need to hustle." Ms. Thompson was sitting inside her office. She did not immediately inform Ms. Laura Bowden, who was in charge of the pre-bid conference and was already inside the conference room with the door closed. Ms. Thompson decided to go to the building entrance to make sure that the men found the building without a problem. At about 10:00 a.m., the pre-bid conference was convened by Ms. Laura Bowden. She began by reading the contract. Also present at this time, in addition to Ms. Bowden, Mr. DeWitt, and Mr. Halstead, were several others: Mr. Harper Smith, representing ThyssenKrupp Elevators; Mr. Cliff Vaughn, Representing First Coast Elevators; Mr. Noel Fossette, representing Schindler Elevator; Mr. Jerry Arsenault, Facilities Superintendent for the School; and Mr. Dennis Baker, a Project Manager for the School. At the conference, bidders were provided a copy of a "pre-bid packet" containing additional information about the elevator contract. When the three men arrived at the Hogel Maintenance Building, Ms. Thompson was waiting for them. She opened up the building entrance door and waved, because they were about to pass by it, brought them inside the building, and escorted them over to the conference room door. Ms. Thompson then returned to her office. Ms. Bowden had read a couple of pages of the contract, when Mr. Ramos, Mr. Stanley, and Mr. Baskin came into the meeting. Ms. Bowden said, "You're late." As soon as she did so, Mr. Arsenault instinctively looked at the clock on the wall. He testified that it read 10:07 a.m. Mr. Baker also testified that it was seven or eight minutes past 10:00 when the men arrived. One of the men responded to Ms. Bowden's comment with the statement that police security had already called the secretary. Ms. Bowden left the conference room and went to Ms. Thompson's office. Ms. Bowden asked Ms. Thompson if she knew why the bidders had been late. Ms. Thompson explained that she had received a call from Officer Hardy, stating that the Campus Police had held them up there. Ms. Bowden thanked her and returned to the conference room. Once back in the conference room, Ms. Bowden restarted the meeting. She began reading the contract again from the beginning. No questions had been asked before the late arrivals, and there was no information that had been given earlier that was not repeated when the meeting was restarted. The late-bidders were allowed to sign the attendance roster. No one protested that late-bidders were allowed to attend the meeting, that the meeting was restarted, or that the late- bidders were allowed to sign the attendance roster. Ms. Bowden was aware that the ITB stated that any bidder late to the pre-bid conference would not be eligible to sign the attendance roster and could not submit a bid. However, based on the information she had from Ms. Thompson, Ms. Bowden decided that it had been the School's fault, and not their own, that the late bidders had not arrived at the conference room on time. She allowed the late-bidders from Kone and Otis to attend the pre-bid conference because under the circumstances she thought their late arrival was a minor irregularity. As indicated in the ITB, attendance at the pre-bid conference was mandatory to allow all potential bidders to receive the benefit of answers to their own and others' technical questions firsthand. Ms. Bowden had received no questions prior to the entry of the Kone and Otis representatives, and she started the meeting over to ensure that all bidders received the same information. On June 14, there was a public bid opening, which was attended by Mr. DeWitt of Traveler as well as Mr. Baskin and another representative of Otis, among others. Traveler could hear who the bidders were, and was aware that Otis had been allowed to submit a bid. At that time, Traveler made no objection that Otis had been permitted to bid. The School applied the same criterion to all bids when evaluating them. Rankings in various categories were combined pursuant to a weighted formula to arrive at a total weight for each bidder. In the overall ranking of the bids, Otis ranked first, while Traveler came in second. On June 18, 2012, at 9:30 a.m., the Bid Tabulation and Notice of Award Recommendation was posted. The School prepared and disseminated it to each of the bidders. It indicated that the School was recommending that the contract be awarded to Otis as the lowest responsive bidder. Traveler was listed as the second lowest bidder. Traveler e-mailed a Notice of Protest in response to the School's recommendation about 10:49 a.m. on June 18, 2012, followed the same day by a formal protest. As grounds for its protest, Traveler contended that Otis had been late to the pre- bid conference, and pursuant to the procedures set forth in the ITB should not have been allowed to sign the attendance roster or submit a bid. Ms. Bowden still believed the late arrival of Otis was a minor irregularity, but she could not know if an administrative law judge would necessarily agree. Traveler was contesting that conclusion, claiming that the failure of Otis was a material deviation from the explicit bid specifications and that the School was required to reject the Otis bid and award the contract to Traveler. She testified that if she had determined that the late arrival to the pre-bid conference by Otis had been a material deviation, and awarded the contract to Traveler, that she believed that Otis would surely have protested. After careful consideration and discussions with counsel, Ms. Bowden decided to reject all bids. On June 21, 2012, the School notified Traveler and the other bidders that it was exercising its right to reject all bids and re-bid the contract, at a yet undetermined date in the future. On June 22, 2012, Traveler e-mailed the School, objecting to FSDB's rejection of all bids and requesting that the matter be referred to the Division of Administrative Hearings. On July 10, 2012, Respondent filed a Notice of Compliance with Paragraphs 2 and 3 of the Order of Pre-Hearing Instructions, indicating that it had notified all bidders that if they wished to intervene they must file a Petition to Intervene at the earliest practicable date. No Petition to Intervene was received from any person prior to hearing. At hearing on July 26, 2012, Mr. Cliff Vaughn appeared and asked that he be allowed to participate, or in the alternative that a continuance be granted. Mr. Vaughn was a corporate officer of First Coast Elevator, the third-place bidder. Mr. Vaughn stated he supported the School's action in rejecting all bids. Mr. Vaughn admitted that he had received the notice requiring him to file a Petition if he wished to Intervene. No Petition had been filed by Mr. Vaughn and his appearance at hearing was the first time either party was aware of his interest. He was not eligible to represent his corporation in a "pro se" capacity. Given the statutory policy in favor of expedited hearings in bid protests, the granting of a continuance after the hearing had begun would not serve the public interest and would be unfair to the parties. His requests were denied. The School's rejection of all bids does not have the purpose or effect of defeating the object and integrity of the competitive bidding process and does not give an unfair competitive advantage to any bidder. The School's rejection of all bids is not illegal, arbitrary, dishonest, or fraudulent.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida School for the Deaf and the Blind enter a final order finding that the rejection of all bids submitted in response to Invitation to Bid 05-23-12 is not illegal, arbitrary, dishonest, or fraudulent, and dismissing Petitioner's protest. DONE AND ENTERED this 14th day of September, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 14th day of September, 2012. COPIES FURNISHED: Frank Damon Kitchen, Esquire Constangy, Brooks and Smith, LLC Suite 1700 200 West Forsyth Street Jacksonville, Florida 32202 dkitchen@constangy.com William David Talbert, Esquire Talbert Law Firm, P.A. Suite 202 1930 San Marco Boulevard Jacksonville, Florida 32207 talbertlawfirm@bellsouth.net Dr. Jeanne G. Prickett President of Florida School For the Deaf and Blind 207 San Marco Avenue St. Augustine, Florida 32084
Findings Of Fact Agreed Facts: The Department of Health and Rehabilitative Services (hereinafter "HRS") is the affected agency and is responsible for agency action concerning certificates of need in Florida. FCC is a Florida corporation located at 345 South Magnolia Drive, Suite E-21, Tallahassee, Florida 32301. FCC applied for a CON to construct a 120-bed nursing home in Dade County, Florida, in January 1984. HRS denied that application on March 2, 1984, and FCC timely requested an administrative hearing. During the course of this first round of administrative litigation, HRS resolved its dispute with FCC and issued to FCC CON No. 3024 to construct a 120- bed nursing home in Dade County, Florida. HRS required 24 of the 120 beds to be dedicated to Medicaid patients. HRS issued the CON to FCC on February 4, 1985, but did not issue its final order in the first round of litigation until July 1, 1985. In October 1985, St. Francis Hospital challenged FCC's CON No. 3024. This litigation was independent of the initial first round of litigation concerning this CON. The St. Francis case was resolved in December 1985, and HRS tolled the time for FCC to commence construction. HRS stated that the new starting date for the project was December 4, 1985, and that the project must be under continuous construction by December 3, 1986. On November 14, 1986, FCC requested a six-month extension of the one- year validity period for CON No. 3024. HRS granted that request on February 5, 1987, and established June 3, 1987, as the new termination date for CON No. 3024. HRS does not dispute that FCC properly obtained this six-month extension. On December 1, 1986, however Forum Group initiated new litigation challenging FCC's CON pursuant to the opinion of the First District Court of Appeal in Gulf Court Nursing Center v. Department of Health and Rehabilitative Services, 483 So.2d 700 (Fla. 1st Dist. 1985). This third round of litigation concluded when Forum Group voluntarily dismissed its appeal before the District Court of Appeal, and the District Court issued its order closing the case on July 28, 1987. Based on this third round of litigation, HRS established January 26, 1988, as the new termination date for CON No. 3024. On October 23, 1987, FCC filed an interim cost report for this project showing an expenditure of $84,000. On January 7, 1988, HRS issued a letter to FCC permitting FCC to lay the foundation for CON project No. 3024. On January 19, 1988, HRS approved the entire construction plans for CON No. 3024, and through its contractor, FCC promptly obtained a local building permit, No. 0788, on January 22, 1988. At 11:15 a.m. on January 27, 1988, the day after the termination date for this CON, HRS conducted a site visit. By letter dated January 29, 1988, HRS stated that the CON was null and void and requested FCC to return the original CON. FCC received that letter on February 8, 1988. FCC timely petitioned for a formal administrative hearing under Section 120.57(1), Florida Statutes (1987), on February 12, 1988. HRS referred the petition to DOAH to conduct a formal hearing. The only grounds stated by HRS as the basis for voiding CON No. 3024 is that the project was not "under physical and continuous construction beyond site preparation" by January 26, 1988. Prior to January 26, 1988, FCC completed the following activities with regard to CON No. 3024: Obtained land for the project; Procured a building permit from the local building authorities; Obtained a foundation permit from HRS; Obtained HRS' approval of the actual construction documents for the construction of the entire 120-bed nursing home, pursuant to a letter from Mr. Richard Rosenvold, HRS, dated January 19, 1988 (authorizing the construction of the entire project beyond the foundation). On or before January 26, 1988, FCC undertook the foundation forming of the nursing home authorized CON No. 3024 by installing steel and placing concrete on its site in Dade County, Florida, in accordance with HRS-approved construction documents. HRS agrees that, if FCC prevails in this case, FCC will have twelve months from the rendition of the Final Order within which to recommence construction pursuant to CON No. 3024. Disputed Facts: Interruptions in the Validity Period The purpose of the validity period of a CON is to provide an uninterrupted space of time for the CON holder to commence construction. During this period the holder of the CON must get architectural plans approved by HRS, obtain land and proper zoning, obtain a building permit, obtain financing, and begin constructing the project. The CON validity period is twelve months. HRS may authorize one six- month extension, for a maximum validity period of eighteen months. The validity period for CON No. 3024 was unique, in that the CON was twice subjected to legal challenges which threatened the validity of the CON long after the CON was issued by final agency action. Because HRS recognizes the significance of legal challenges which threaten the validity of a CON, HRS tolls the validity period throughout the duration of such challenges. HRS twice tolled the validity period for FCC's CON No. 3024, first, because of the challenge brought by St. Francis Hospital and, second, because of Forum Group's Gulf Court challenge As a result of this stop-and-go process, FCC did not have an uninterrupted eighteen months, to commence construction of CON No. 3024. The significance to FCC of the interruptions to the validity period for CON No. 3024 were: FCC could not obtain project financing during legal challenges to the CON or during the time periods after the challenges were concluded but before HRS issued its letter recommencing the validity period. Because of the Forum Group challenge, FCC could not close on its contract to purchase land for the project and lost the first site it had selected for construction of its nursing home. FCC incurred increased costs for zoning in that it lost the sums it had expended to obtain appropriate zoning approval from the local zoning authority for the first site. The St. Francis and Forum Group legal challenges delayed the commencement of construction for CON No. 3024 between three and four months. This delay is in addition to the time lost during the pendency of the litigation when FCC could make no additional expenditures to develop the project. FCC did not make expenditures toward commencing construction of CON No. 3024 during the pendency of any litigation challenging the validity of that CON because to do so is commercially unreasonable. However, FCC did not wait for HRS' notification that the validity period for this CON had recommenced before contracting to purchase an additional site. After investigating five other locations, FCC contracted to purchase land located at 16100 Northwest 2nd Avenue, Miami, Dade County, Florida, on September 4, 1987. Retroactive Notices By statute, HRS is responsible for notifying CON holders of the commencement tolling, and recommencement of the CON validity period. Without notification from HRS about the duration, commencement, tolling, and recommencement of the validity period for a CON, the CON holder cannot make appropriate plans to commence construction of a CON project. Without clear notification from HRS about the duration of the CON validity period, lenders will not finance CON projects. HRS twice provided tardy notice to FCC about the recommencement of the validity period for CON No. 3024: The St. Francis Hospital litigation was settled favorably for FCC in December 1985. Nonetheless, HRS did not notify FCC that its validity period had recommenced as of the date of the December 1985 final order until its letter dated February 10, 1986. Forum Group dismissed its appeal and the First District Court of Appeal issued an order of dismissal on July 27, 1987. Nevertheless, HRS did not notify FCC that the validity period for CON No. 3024 would recommence as of July 27, 1987, until its letter dated September 28, 1987. Even though FCC did not complain about the January 26, 1988, termination date which HRS established for CON No. 3024 by letter dated September 28, 1987, until HRS initiated this action, FCC's failure to complain does not rectify HRS' retroactive notifications. Forum group initiated its challenge with two days then remaining for the validity period for CON No. 3024. HRS then tolled the validity period for this CON throughout the legal challenge. HRS approved FCC's request for the six-month extension by letter dated February 5, 1987, while the validity period continued to be tolled. When the Forum Group litigation was dismissed, HRS extended FCC's validity period for this CON to January 26, 1988, which is a total of six months and two days (182 days) from the date of the July 27, 1987, order of dismissal. Tree Permit There were no trees where the foundation for CON No. 3024 was to be located, and there were no protected species of trees on the site for this project. Accordingly, the local authority for Dade County did not require a tree permit for this site. Zoning and Other Approvals FCC, through its Vice President of Development and Project Architect William T. Searcy, an expert in architecture and in the evaluation of construction costs, applied for zoning for the second project site for CON No. 3024. Prior to commencing construction before the termination date of the CON, the local zoning authority unanimously approved FCC's application for a 120-bed nursing home with a screened fence between the nursing home and its adjoining neighbors. FCC obtained a waiver of the requirement to plat its site for CON No. 3024 from the local authorities for Dade County on January 22, 1988. FCC did preliminary worth with local utility companies to insure all utility service would be available to the nursing home, prior to the January 26, 1988, termination date for CON No. 3024. Construction Contract In late January 1988, FCC, through its owner, James McCarver, verbally agreed to engage Anthony Estevez and Project Advisors Corporation as general contractor to construct the nursing home authorized by CON No. 3024. FCC ordered Estevez to proceed to construct CON No. 3024, and FCC agreed to pay the contractor's time and materials plus 15 percent for overhead and profit. These terms would later be reduced to a written contract, but this action by HRS intervened. Estevez obtained the building permit for CON No. 3024 from the local building authority for Dade County, Florida, only after this verbal construction contract was entered into between FCC and Estevez. Construction Activities FCC hired a soils testing laboratory on October 21, 1987, to do a soil investigation report on the second site for CON No. 3024; adapted its construction plans to fit the new site; hired a building permit specialist familiar with the Dade County building authorities; and hired a civil engineer for the project. The soil testing laboratory, Wingerter Laboratories, Inc., issued its report on October 30, 1987. The project general contractor followed the soil engineer's recommendation in the Wingerter soils report in constructing the footer for the southeast corner of the nursing home authorized by CON No. 3024, and the site was properly prepared. FCC's general contractor, Anthony Estevez, is an expert in general contracting and in the design, construction, and management of health care facilities. On or before the January 26, 1988, termination date, the project's general contractor for CON No. 3024: Had the surveyor, J. F. Lopez, stake out the corners of the building and the footings the contractor planned to pour. Performed all work on the site in accordance with HRS-approved construction documents. Had Vallero Trucking clear the site to good soil where the footer was to be poured. Several thousand square feet were cleared for the footer. The contractor was clearing additional portions of the site when HRS inspected on January 27, 1988. Filled the pad where the footer would be poured. Vibro-compacted the soil under the footer in layers. Used limerock to make a very supportive base for the footer. Set reinforcing steel where the footer was poured. Obtained the threshold engineer's inspection and approval to pour the footer. The threshold engineer inspected the soil compaction and approved the pour. The soil-bearing capacity under the footer was 6,000 pounds per square inch ("PSI"), well in excess of the required 25 PSI for this project. Poured concrete to form a footer of 15 feet at the southeast corner of the foundation for the subject nursing home. Had a compression cylinder test done to determine the strength of the footer. The footer had a strength of 4,600 PSI twenty-eight days after it was poured, well in excess of the 3,000 PSI required. The footer met and exceeded the specification for CON No. 3024 and represents a continuous 15-foot segment of the foundation at the southeast corner of the proposed nursing home. The footer is strong enough to support more than the one-story structure of the nursing home for which it was designed. The contractor had a construction trailer on site for CON No. 3024 on the afternoon of January 27, 1988, just after HRS' inspection. The contractor had a bulldozer, a vibro-compacting roller, and a combination backhoe and front-end loader on site between January 23, 1988, and the end of January or the beginning of February 1988. The contractor's crew was on site for CON No. 3024 from January 22, 1988, until the end of January or the beginning of February 1988, including Saturdays and Sundays. But for this action, there were no barriers to FCC's continuous construction of CON No. 3024 after January 26, 1988. Expenditures and Losses FCC and its general contractor expended, or owe, $256,000 to construct the nursing home in Dade County authorized by CON No. 3024. This includes FCC's expenditures for studies and consultants as well as for legal fees to obtain the CON. This also includes direct costs for travel and long-distance telephone calls, for the development of the architectural plans and construction documents, for engineering, for the down-payment on the second site, and for zoning for both the first and second sites. The general contractor for CON No. 3024 spent in excess of $50,000 on the project to obtain the building permit, fill, equipment, supervision, labor, a threshold engineer, temporary electricity, steel, concrete, the construction trailer, a portable toilet, and insurance. After HRS' site visit on January 27, 1988, when HRS told Estevez, the general contractor for the project, that HRS would terminate CON No. 3024, Estevez ordered all construction on the project to stop. Estevez did so because HRS told him he could not proceed with construction. Because HRS issued its January 29, 1988, letter declaring CON No. 3024 null and void, FCC lost the right to purchase the second site, the land on which it had commenced construction. The HRS Inspection During HRS' inspection on January 27, 1988, there was a bulldozer on site for this project, a construction foreman, and several workers. The construction trailer was in place on the site for this project by the afternoon of January 27, 1988. HRS found a building permit for the project on site during the January 27 inspection. The HRS inspector took pictures of the site for CON No. 3024 depicting construction activity which included foundation forming with steel installation and concrete placing of the footer for the southeast corner of the nursing home authorized by CON No. 3024. HRS sent FCC notice that it was terminating CON No. 3024 as null and void based solely on the January 27, 1988, inspection. HRS based its notice letter on faulty information: HRS believed that a tree permit was required when in fact there were no protected species of trees on the site for CON No. 3024. Consequently, FCC did not need a tree permit from local (Dade County) authorities. HRS believed FCC did not have a soil report when in fact the threshold engineer approved the pouring of a footer based on specified soil compaction. HRS believed that only 25 square feet of the site had been cleared but the footer required, and the contractor cleared, several thousand square feet of the site to pour the 15-foot footer. HRS' decision makers lacked adequate expertise to determine whether FCC had commenced construction of CON No. 3024. The HRS decision makers did not know that the HRS Plans Review Section had approved the construction plans and specifications for CON No. 3024 prior to the January 26, 1988, expiration date for that CON. Site Preparation HRS has no rule for interpreting the "continuous [construction] activities beyond site preparation" portion of the definition of "commence construction." HRS' non-rule interpretation of this phrase is that all site work, including soil compaction for the foundation, delineation of the foot print of the facility, and the clearing of vegetation within the area of the site where the foundation will be poured, must be completed before the termination date in order for the CON holder to validate the CON by commencing construction. FCC was not on notice as to HRS' "policy" definition of construction activity beyond site preparation, and HRS' witnesses did not uniformly describe that "policy." In construction parlance, site preparation includes the preparation of the entire project site. This includes sub-grading under the paving, placing fill under the footers, clearing the entire project site, and finishing the project up to the finished grade. For most large health care and commercial projects, clearing is done in stages and site preparation is merely kept ahead of forming the foundation. No phase is completed before the next phase is begun. If all site preparation had to be completed before a CON holder could go on to the next phase of construction, each CON project would be delayed approximately five weeks at a great cost to the CON holder and to taxpayers and health-care consumers. Prior Inconsistent Action by HRS HRS has not required FCC, nor any other CON holder, to meet the definition of commencing continuous construction beyond site preparation that it required of FCC in this case. HRS found FCC to have commenced construction of five other nursing home projects in Florida after FCC performed construction activities and site preparation identical with FCC's work on CON No. 3024. HRS did not terminate Glenbeigh Hospital's (hereinafter "Glenbeigh") CONs to construct two hospitals even though Glenbeigh completed less construction activity to commence these projects prior to their termination date than FCC had with CON No. 3024. HRS validated Glenbeigh's CON No. 3217 for an eighty-bed substance abuse hospital in Orlando when: Glenbeigh had only a verbal contract with its general contractor three or four days before constructing two small column pads. A building permit was obtained May 21, 1986, before there was any written AIA contract. Glenbeigh only constructed two column pads two feet long by two feet wide by a foot and one-half deep before its June 7, 1986, termination date, versus FCC's fifteen-foot continuous footer on CON No. 3024. A retention pond, shown in pictures taken by HRS of Glenbeigh's project, was not even on the project site and was not something constructed by the CON holder to commence the project. There was no soil test or geologist's report for the column pads, nor for the site. Glenbeigh did site preparation under the foundation long after the column pads were poured and after the termination date for that CON. HRS validated Glenbeigh's CON No. 2667 for a sixty-bed adolescent chemical dependence hospital in West Palm Beach, now licensed, when: Prior to the termination date, Glenbeigh poured two column pads after compacting only under the pads. Glenbeigh continued to perform site preparation under the foundation after the termination date of December 28, 1985, for that CON.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that FCC's CON No. 3024 remains valid. In compliance with the Prehearing Stipulation, it is further RECOMMENDED that FCC be given twelve months from the rendition of the Final Order in this proceeding within which to recommence construction of the Dade County nursing home project authorized by CON No. 3024. DONE and RECOMMENDED this 15th day of December, 1988, 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 Administrative Hearings this 15th day of December, 1988. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-0840 Petitioner's proposed findings of fact numbered 1-69 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1, 4, 6, 7, 10, 12, 14, 17, and 21-23 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2, 3, 5, 8, 9, 11, 13, 15, 18-20, and 24 have been rejected as being unnecessary for determination herein. Respondent's proposed finding of fact numbered 16 has been rejected as being irrelevant to the issues in this cause. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Robert P. Daniti, Esquire 1017-C Thomasville Road Tallahassee, FL 32303 Richard A. Patterson, Esquire Department of Health and Rehabilitative Services 2727 Mahan Drive Fort Knox Executive Center Tallahassee, FL 32308 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 =================================================================
