The Issue The issue in this case is whether Respondent's intended contract award pursuant to Invitation to Bid No. SDOC-11-B-049- CJ for ready-mix concrete is contrary to Respondent's governing statutes, Respondent's rules or policies, or the solicitation specifications.
Findings Of Fact In October 2010, the School District issued an invitation to bid for ready-mix concrete (the original ITB). The only bidder who submitted a bid in response to the original ITB was Bedrock. Bedrock had had the concrete contract with the School District for the prior three years and had used a front discharge delivery method. On December 7, 2010, Cindy Hartig (Ms. Hartig) and Michael Grego (Mr. Grego), who at the time was the superintendent of the School District, had a conversation concerning the award of the concrete contract to Bedrock pursuant to the original ITB. Mr. Grego testified that Ms. Hartig told him that the School Board would not support a recommendation to award the contract to Bedrock. Mr. Grego further testified that when he asked Ms. Hartig how she knew that the School Board would not support an award to Bedrock, she did not say how she knew. Ms. Hartig testified that Mr. Grego told her that he had polled the School Board members and that they advised they would not support an award of a contract to Bedrock. Having considered the testimony of Mr. Grego and Ms. Hartig, the testimony of Mr. Grego is more credible. On December 7, 2010, prior to the School Board meeting in which the School Board considered the original ITB, Ms. Hartig sent an email to Mr. Grego and Cheryl Olson (Ms. Olson), who was the director of purchasing for the School District. The email stated: Team, An ex board member works for bedrock An ex board member is building the house for the owner of bedrock Bedrock is only one of two companies that have front discharge trucks And reality is the front discharge is not needed, most CM's will not use them Please re look at the requirements for this bid prior to rebid Also make sure that each company is getting the vendor request and that it is not in their spam thank you cindy lou The former board member to whom Ms. Hartig was referring was John McKay (Mr. McKay). There had been friction between Ms. Hartig and Mr. McKay in the past. At the School Board meeting on December 7, 2010, the School Board voted to reject all bids for the original ITB. The reasoning for rejecting all bids was not apparent from the minutes of the School Board meeting. There was no evidence presented that the School Board, as a whole, was biased against Bedrock or that Ms. Hartig had influenced the School Board to reject all bids. On December 10, 2010, the School District issued the rebid ITB, which allowed the vendors to bid front and rear discharge methods of delivery. It was felt that having both front and rear delivery would give the maintenance staff an opportunity to choose the method they wanted to use on a job-by- job basis. The rebid ITB includes a bid submittal form on which the bidders are to submit their prices. There are 15 separate line items on which the bidders may submit a bid. Line items 1 and 2 are for delivery of ready-mix concrete using a front discharge cement truck. Line items 3 and 4 are for delivery of ready-mix concrete using a rear discharge cement truck. The rebid ITB did not specify whether the bidders had to submit a price for each line item in order to be deemed responsive. Paragraph 25, on page 2 of 29 of the rebid ITB states: AWARD: As the best interests of the School Board may require, the School Board reserves the right to make award(s) by individual item, group of items, all or none, or a combination thereof; on a geographical basis and/or on a district wide basis with one or more supplier(s) or provider(s); to reject any and all offers or waive any minor irregularity or technicality in offers received. Offerors are cautioned to make no assumptions unless their offer has been evaluated as being responsive. Any and all award(s) made as a result of this invitation shall conform to applicable School Board Rules, State Board Rules, and State of Florida Statutes. Page 3 of 39 of the rebid ITB provides: "THE SCHOOL BOARD RESERVES THE RIGHT TO REJECT ANY OR ALL OFFERS, TO WAIVE ANY INFORMALITIES, AND TO ACCEPT ALL OR ANY PART OF ANY OFFER AS MAY BE DEEMED TO BE IN THE BEST INTEREST OF THE SCHOOL BOARD." Section 2.09 of the rebid ITB provides: The School Board reserves the right to award the contract to the bidder(s) that the Board deems to offer the lowest responsive and responsible bid(s), as defined elsewhere in this solicitation. The Board is therefore not bound to accept a bid on the basis of lowest price. In addition, the Board has the sole discretion and reserves the right to cancel this Bid, to reject any and all bids to waive any and all information and/or irregularities, or to re-advertise with either the identical or revised specifications, if it is deemed to be in the best interest of the Board to do so. The Board also reserves the right to make multiple awards based on experience and qualifications or to award only a portion of the items and/or services specified, if it is deemed to be in the Board's best interest. Section 2.42 of the rebid ITB provides: "The School Board reserves the right to award one or more contracts to provide the required services as deemed to be in the best interest of the School Board." Section 2.11 of the rebid ITB defines "responsive and responsible" as follows: Each bid submittal shall be evaluated for conformance as responsive and responsible using the following criteria: Proper submittal of ALL documentation as required by this bid. (Responsive) The greatest benefits to the School District as it pertains to: (Responsible) Total Cost. Delivery. Past Performance. In order to evaluate past performance, all bidders are required to submit: A list of references with the bid and; A list of relevant projects completed within the last 3 years that are the same or similar to the magnitude of this ITB. All technical specifications associated with this bid. Financial Stability: Demonstrated ability, capacity and/or resources to acquire and maintain required staffing. Bidders are reminded that award may not necessarily be made to the lowest bid. Rather, award will be made to lowest responsive, responsible, bidder whose bid represents the best overall value to the School District when considering all evaluation factors. Two vendors, Bedrock and Prestige, submitted bids in response to the rebid ITB. Bedrock does not have the capability to provide concrete with rear delivery trucks. Therefore, Bedrock did not submit a bid for concrete delivered by rear discharge trucks. Bedrock submitted a bid for concrete delivered with front discharge trucks. Bedrock's total bid price was $74,887.50. Prestige's bid was for concrete delivered by rear discharge trucks. Prestige did not submit a price for concrete delivered by front discharge trucks. Prestige's total bid price was $70,300.00. The bid tabulation was posted on January 18, 2011. Staff of the School District made a recommendation to the School Board to award the front discharge portion of the rebid ITB to Bedrock and to award the rear discharge portion to Prestige. The recommendation was placed on the agenda for the School Board meeting scheduled for February 1, 2011. There was a discussion among the School Board members concerning notification to the vendors. Thomas Long (Mr. Long) became a School Board member in November 2010. He was concerned by the lack of response to the original ITB and, on January 27, 2011, requested Ms. Olson to send him a list of local vendors who did not respond to the rebid ITB. The purpose of the communication was to learn why vendors were not submitting bids. He contacted one vendor who did not submit a bid, but he did not contact either Bedrock or Prestige. The communication would have had to have been made after he received the list of vendors on January 28, 2011. Section 7.70 I. G. of the School Board Policy Manual provides: Vendors, contractors, consultants, or their representatives shall not meet with, speak individually with, or otherwise communicate with School Board members, the Superintendent, or School District Staff, other than the designated purchasing agent, and School Board members, the Superintendent, or School District staff, other than the designated purchasing agent shall not meet with, speak individually with, or otherwise communicate with vendors, contractors, consultants, or their representatives, about potential contracts with the School Board once an invitation to bid, request for quote, request for proposal, invitation to negotiate, or request for qualification has been issued. Any such communication shall disqualify the vendor, contractor, or consultant from responding to the subject invitation to bid, request for quote, request for proposal, invitation to negotiate, or request for qualifications. At the February 1, 2011, School Board meeting, the School Board voted to appoint Scott Stegall (Mr. Stegall) as the new chief facilities officer for the School District. The School Board also voted to table the issue of the concrete contract in order to give Mr. Stegall an opportunity to review the procurement. Mr. Stegall did review the procurement and recommended that the contract award be split between Bedrock and Prestige. There was no difference between the quality of the concrete whether it was delivery by a front discharge truck or a rear discharge truck. Whether it would be more efficient to use a front discharge versus a rear discharge method of delivery would depend on the job for which the concrete was ordered. The recommendation to split the award of the concrete contract was placed on the agenda for the School Board meeting scheduled for March 1, 2011. Five School Board members were present for the School Board meeting of March 1, 2011. Four School Board members voted to reject the staff recommendation and to award the contract to Prestige. One School Board member voted against awarding the contract to Prestige. Thus, the School Board's intended award of the contract was to Prestige.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the intended award to Prestige was not contrary to the School Board's governing statutes, the School Board's policies or rules, or the rebid ITB and that the intended award to Prestige was not clearly erroneous, arbitrary, capricious, or contrary to competition. DONE AND ENTERED this 16th day of August, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND 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 16th day of August, 2011.
Findings Of Fact Respondent at times relevant to the inquiry employed 15 or more employees in each working day in each of 20 or more calendar weeks in the year. Petitioner worked for the Respondent from May 7, 1984 through December 19, 1991. Petitioner had tendered his resignation on December 6, 1991 from his position as Engineering Technician IV. His intention was that his resignation become effective December 20, 1991. On December 6, 1991, Jerry G. Smith, District Land Surveyor for District II, State of Florida, Department of Transportation, accepted Petitioner's resignation effective December 20, 1991. This action by Mr. Smith was by virtue of his responsibility for the Mapping and Surveying Section of which Petitioner was a part. Respondent did not solicit Petitioner's resignation. In the chain of command Mr. Smith was 2 or 3 times removed from Petitioner. Respondent's Exhibit No. 1 describes the duties of Engineering Technician IV incumbent upon Petitioner until November 12, 1991. Those duties were as follows: Plots and inks the final right of way and assists other Department Personnel in the preparation of maps. These maps must meet D.O.T. and Federal Highway Administration Standards. Works with the Document Preparation Section in locating property lines and determining what information is needed on maps in order to prepare legal descriptions. Assists in the verification of final right of way requirements with Road Design Personnel. Assists in the review of right of way maps prepared by Consultants. Assists in making the computations that are needed for map and deed preparation. Provides other Department Personnel and the General Public with right of way information as required. Performs related work as required. Percentages of time will vary due to work load. Respondent's Exhibit No. 2 describes the job description for Engineering Technician IV related to the Petitioner from the period November 12, 1991 through December 19, 1991. Those duties were as follows: 30 percent Prepares very complicated legal descriptions of real property to be acquired by the Department of Transportation. These are written by hand and also by using "Legal Holiday", Computer Software. 30 percent Plots Title Search (Abstract) on Right of Way Maps and determines owners and encumbrances. 15 percent Reviews legal descriptions of real property and related documents prepared by other employees or/and Consultants. 15 percent Compute areas of parcels needed for right of way. Also, computes areas, distances, and bearings on property remainders. 5 percent Determines the types of instruments of conveyance to be prepared. 5 percent Performs related work as required. Percentages of time will vary, due to work load. Some unspecified person within the architectural and engineering firm, Reynolds, Smith and Hills, Inc. made contact with Petitioner concerning the possibility that he might serve as an office engineer in the firm's Lake City, Florida office. This contact was made in October, 1991. On December 3, 1991, Ed Griffin and Eric Rosenstein called Petitioner about the availability of the office engineer position. They wanted Petitioner to come to their Longwood, Florida office and interview about the position. On December 6, 1991, Petitioner went to the firm's Longwood office and was interviewed by Eric Rosenstein and Ed Griffin. They took a photocopy of his social security card and his resume to support his application for employment. Petitioner testified that Mr. Griffin and Mr. Rosenstein during the December 6, 1991 interview specifically stated that they wanted to hire him. These hearsay comments attributable to Mr. Griffin and Mr. Rosenstein were not otherwise proven. Therefore, it has not been established that Petitioner was offered a job with the Reynolds firm on December 6, 1991. Based upon the interview with Griffin and Rosenstein, Petitioner called Jerry Smith's office on December 6, 1991, and spoke to Carol Streer, secretary to Jerry Smith. He told her to prepare a letter of resignation for Petitioner and he told her to tell Jerry Smith that Petitioner would be leaving his position with Respondent in two weeks and wanted to give the Respondent two weeks' notice. This led to the resignation and acceptance of that resignation that has been addressed above. On November 1, 1991, the Reynolds firm had entered into an agreement with Respondent to serve as a consultant for purposes of construction engineering and inspection. This was in association with the resurfacing with bridge widening of Interstate 75. It is inferred that Petitioner had been interviewed by the Reynolds firm to serve as an office engineer to the Reynolds firm on the resurfacing project. In accordance with the agreement between the Reynolds firm and Respondent, related to the Interstate 75 resurfacing project, a definition is given concerning minimum training and experience standards for consultant personnel. Specifically, the training and experience anticipated for an office engineer is described in that agreement to this effect: OFFICE ENGINEER - High school graduate plus three (3) years experience in responsible charge of a construction office. Should exercise independent judgment in planning work details and making technical decisions related to office engineering aspects of the project. Accepts general supervision and verbal instructions from the Resident Engineer. Serve as the Resident Compliance Officer in surveillance of the Contractor's compliance with contract requirements. Within the agreement under Section 2.0 entitled: SCOPE, it states: . . . The Consultant shall provide technical and administrative personnel meeting the requirements set forth Section 9.0 of this Scope of Services in appropriate numbers at the proper times to ensure that the responsibilities under this Agree- ment are effectively carried out. All services shall be performed in accordance with the estab- lished standard procedures and practices of The Department. . . . Section 9.0C. entitled Staffing, within the agreement, states: . . . no personnel shall be assigned to this project by the Consultant until the qualifications of each person proposed have been reviewed and approved in writing by the Program Manager. The Consultant's personnel approval requests shall be submitted at least two weeks prior to the date an individual is to report to work. The Program Manager, according to the agreement, is: "the District employee designated to be in responsible charge and direct control of the projects covered by this agreement." On December 9, 1991, in accordance with the agreement, the Reynolds firm submitted Petitioner's name as proposed office engineer on the Interstate 75 project. This submission was made through a form seeking approval from the program manager. In support of the request to have the program manager approve the Petitioner to serve as an office manager to the consultant, the Reynolds firm submitted a resume which Petitioner had provided that firm. The resume which Petitioner gave to the Reynolds firm and the firm in turn gave to the Respondent's program manager stated as follows: R E S U M E Richard C. Bishop HOME 1605 N. E. 7th Terrace Gainesville, Florida 32609 Telephone (904) 373-6510 538-5225 OFFICE Surveying & Mapping Dept. Post Office Box 1089 Lake City, FL 32056-1089 Telephone (904) 752-3300 EXT. 3662 PERSONAL: Male, Caucasian, U. S. Citizen, Good Health, 5' 10", 195 lbs. EDUCATION: Univ. of Florida Business Administration San Jose City College Associates Degree, Electronic Engineering Univ. of North Florida Communications and Electronics US Air Force EXPERIENCE: Atlantic Ballistic Missile Range with Radio Corporation of America as Electronic-Equipment-Man working with HF and VHF Receivers and Transmitters, a 200+ station North Electric all system, Emergency Networks (radio and telephone), Radar Boresight Cameras, Optical Trackers, Control Room Plotting Boards and Captain of Disaster Control Team. West Virginia Department of Highways: Completed Engineer-In-Training program covering all phases of Construction Maintenance, Soil Mechanics and Testing including Marshall Stability Tests, Los Angeles Abrasion Tests as well as standard sieve analysis, flow plasticity, density, specific gravity, extractions, gradations and concrete and asphalt mix designs. Set up and managed a Complaint Department while continuing duties as an Area Maintenance Assistant over several counties. Certified Portland Cement Concrete Technician with sampling and testing experience in both field and laboratory testing methods. Licensed Nuclear Densitometer Operator with considerable experience using the Troxler Nuclear Densitometer measuring densities on fills, sub- grades and asphaltic concrete bases and overlays. Management and/or supervision in several privately owned asphalt paving and construction companies. Construction Inspection School for 10 weeks at St. Petersburg Junior College. Construction inspection on I-75, Alligator Alley and Toll Plaza, Marco Island Road and other projects in the Naples area, then SR 21, Orange Park to Middleburg, SR 121 at Raiford, Rocky Creek Bridge, 53rd Ave and Waldo Road intersection and others in the North Florida area. Presently working in Right of Way Engineering ordering, receiving and plotting title searches on maps and producing corresponding accurate maps and all the necessary legal documents required for the actual acquisition of real property with a right of way. In December, 1991, the program manager for Respondent on the Interstate 75 resurfacing with bridge widening project was Thomas E. Brenner. Mr. Brenner has never been acquainted with the Petitioner other than responding to the Reynolds firm's request to have the Petitioner approved to be the office engineer on the project. No proof was shown that Mr. Brenner has ever made derogatory statements about the Petitioner. Mr. Brenner in carrying out his function as program manager wrote to the Reynolds firm on December 11, 1991, disapproving the request to have the Petitioner approved as the office engineer for the consultant. In disapproving that request he made the following remarks: "Needs some EEO [sic] experience and three (3) years in responsible charge of a construction office." The experience which Petitioner had prior to December 9, 1991, when the Reynolds firm requested that he be approved as office engineer did not meet the training and experience standards within the agreement which were incumbent upon a person serving as an office engineer for the consultant. Thus, the reason for disapproving the request to have Petitioner serve as office engineer is borne out. The record is not clear concerning what is meant by the need for EEOC experience and what experience the Petitioner may have had with the EEOC process. However, it was not shown that Mr. Brenner placed the requirement for EEOC experience as a means to discriminate against the Petitioner in the firm's attempt to have him approved as office engineer. Following the disapproval of the request to have Petitioner approved as the office engineer for the consultant, Mr. Rosenstein called the Petitioner around December 17, 1991. He told the Petitioner that the Reynolds firm was having a problem getting the Petitioner approved to do work with the Respondent. This refers to the work on the Interstate 75 project as office engineer. Specifically, Mr. Rosenstein told the Petitioner that the difficulty had to do with not enough EEOC experience. Petitioner explained in response that he did not consider that this was a significant problem. Two or three days after December 17, 1991, Mr. Rosenstein called the Petitioner again and told him that the problem about EEOC had settled down and that the Respondent was opposing recognition of approval of the Petitioner for work as an office engineer based upon the Petitioner's lack of experience in the computer field related to LOTUS 1-2-3. Petitioner acknowledged that he did not have experience with that form of computer. The record does not bear out how those requirements with LOTUS 1-2-3 coincided with Mr. Brenner's reasons for disapproving the request to have Petitioner serve as office engineer to the consultant, if at all. Some time in January, 1992, Petitioner went to the Reynolds' Longwood, Florida office to give Ed Griffin further information in support of his application for employment. At that time Petitioner learned that the Reynolds firm did not intend to follow up their discussions held with Petitioner concerning his employment and that he would not be hired by the Reynolds firm. In addition to failing to prove that Mr. Brenner had made derogatory statements about him which might have interfered with Petitioner's opportunity to gain employment with the Reynolds firm, Petitioner failed to prove that any of Respondent's employees or managers had made derogatory statements which interfered with his opportunity to gain employment with the Reynolds' firm. The only suggestion that anyone working for the Respondent had made derogatory remarks about the Petitioner were promoted by the Petitioner himself. He told others who worked for Respondent that Jerry Smith wanted to get rid of or fire Petitioner and that Jerry Smith had said that Petitioner would never work a day for the Reynolds firm. Jerry Smith had not made these remarks. Jerry Smith had no contact with the Reynolds firm concerning the Petitioner. Moreover, Jerry Smith has had limited contact with Mr. Brenner and none of it was designed to influence Mr. Brenner in his decision to disapprove the request by the Reynolds firm to have Petitioner serve as office engineer for the consultant. Mr. Smith works in the production side of the District II operation. Mr. Brenner worked in the construction side of the District II operation while he was employed there. Unrelated to the attempt by Petitioner to gain employment with the Reynolds firm, Jerry Smith has had involvement with the Petitioner concerning personnel matters. On several occasions discussions were held between the Petitioner and Smith in which Petitioner was attempting to gain a promotion. On those occasions Smith told the Petitioner that he did not think that the Petitioner was operating at a level that warranted discussing promotion. Smith held the opinion of the Petitioner that the Petitioner could not perform the job duties incumbent upon him in his position as Engineering Technician IV. In particular, Mr. Smith did not believe that Petitioner would finish a task assigned and always had to have someone else finish the work for the Petitioner. Mr. Smith tried to have the Petitioner focus on the perceived shortcomings, but this did not lead to a satisfactory result from the point of view which Mr. Smith felt. When the Petitioner left his employment with the Respondent Mr. Smith made a notation that he would not recommend rehiring the Petitioner at some future date. There is no indication that Mr. Smith or anyone in a supervisory position with the Respondent ever took disciplinary action against the Petitioner for matters related to the Petitioner's performance as Engineering Technician IV. Robert Stewart who is a project manager for Respondent, a friend of Jerry Smith, was not involved in making the decision on December 9, 1991, to disapprove the request to have Petitioner serve as office engineer for the consultant. As stated before Robert Stewart had no contact with the Reynolds firm concerning the Petitioner and the Petitioner's possible employment with the Reynolds firm. The job description and resume information do not support the Petitioner in his claim that his experience gained while employed by the Respondent equates to the necessary experience to perform the duties as office engineer for the consultant in the Interstate 75 project. Nor does the record indicate that Mr. Brenner was aware of any experience outside the position description and resume when disapproving the request to have Petitioner serve as office engineer. Finally, the numerous requests which Petitioner made to gain additional training while employed by Respondent, which requests were not granted, were not matters which Petitioner has shown that he was entitled to be granted. Moreover, those requests have not been shown to be matters which coincide with the requirements for the position of office engineer to the consultant in the Interstate 75 project. On September 2, 1994, in the prehearing conference held by telephone, Petitioner indicated to Hearing Officer Davis that he accepted the "no charge" determination of the Florida Commission on Human Relations as to the untimeliness of his age discrimination allegation and waived his right to proceed on that claim. Petitioner's position by the Petitioner was memorialized in the order by Ms. Davis entered September 15, 1994. At the hearing held on October 20, 1994, Petitioner proceeded on the basis that the age discrimination claim was no longer viable.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which dismisses the petition for relief based upon a claim of an unlawful employment practice by the Respondent as defined in Section 760.10(7), Florida Statutes. DONE and ENTERED this 22nd day of December, 1994, in Tallahassee, Florida. CHARLES C. ADAMS 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 22nd day of December, 1994. APPENDIX The following discussion is given concerning the proposed facts found in Respondent's proposed recommended order: Paragraphs 1 through 4 are subordinate to facts. Paragraphs 5 through 7 are not necessary to the resolution of the dispute. Paragraphs 8 through 20 are subordinate to facts found. Paragraphs 21 and 22 are not necessary to the resolution of the dispute. COPIES FURNISHED: Richard C. Bishop 1606 Northeast Seventh Terrace Gainesville, FL 32609 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue The issue in this case is whether just cause exists for the suspension and termination of the employment of Respondent, Curtis Sherrod, for failing to correct teaching deficiencies sufficient to warrant a satisfactory performance evaluation.
Findings Of Fact The Parties. Petitioner, the Palm Beach County School Board (hereinafter referred to as the "School Board"), is responsible for the operation, control, and supervision of all public schools (grades K through 12) and support facilities within the jurisdictional boundaries of the Palm Beach County School District (hereinafter referred to as the "School District"). Respondent, Curtis Sherrod, at all relevant times, was licensed by the State of Florida to teach Social Studies for grades five through 12. Mr. Sherrod's certification authorized him to teach political science, economics, psychology, U.S. history, cultures, world geography, and contemporary history. Mr. Sherrod received a Bachelor of Arts degree, with a major in history and a minor in education, from Winston-Salem State University, formerly known as Winston-Salem State Teacher's College. At all relevant times, Mr. Sherrod was employed as a classroom teacher by the School Board. He was employed initially by the School Board from 1980 to 1983. He returned to employment with the School Board in January 1993 and received a Professional Services contract in August 1996. Mr. Sherrod's Employment at Olympic Heights High School. Beginning with the 1995-1996 school year, Mr. Sherrod was employed by the School Board at Olympic Heights High School (hereinafter referred to as "Olympic Heights"). Francis P. Giblin served as principal of Olympic Heights during the times relevant to this case. Until his last evaluation for the 2001-2002 school year, Mr. Sherrod received overall satisfactory performance evaluations. For the 1999-2000, 1996-1997, and the 1995-1996, school years, Mr. Sherrod, while receiving overall satisfactory ratings, had a few "areas of concern" noted. The deficiencies in those noted areas of concern were, until the 2001-2002 school year, corrected by Mr. Sherrod. During the 2001-2002 school year, Mr. Sherrod taught a world history class. After the school year began, several letters were received by Mr. Giblin from parents expressing concern over the content of the material being taught in Mr. Sherrod's world history class and documents which Mr. Sherrod had sent home to parents.1 Mr. Giblin requested that Dr. Christine Hall, an assistant principal at Olympic Heights look into the parental complaints concerning Mr. Sherrod's class. Dr. Hall was responsible for the Social Studies department, of which Mr. Sherrod was a teacher, at Olympic Heights. Dr. Hall spoke with Mr. Sherrod about the complaints. Dr. Hall met with Mr. Sherrod on September 4, 2001, and summarized their conversation in a memorandum of the same date. See Petitioner's Exhibit 27. The complaints, however, continued, with some parents requesting a class change for their children. Dr. Hall again discussed the matter with Mr. Sherrod, but the complaints continued. In approximately October 2001 Dr. Hall began to make informal observations of Mr. Sherrod's class in a further effort to resolve the problem. Toward that end, on October 10, 2001, Mr. Giblin visited Mr. Sherrod's class.2 Dr. Hall also observed a class during which Mr. Sherrod gave a standardized examination.3 At the conclusion of the test, Dr. Hall collected the "Scantrons" and determined the grade each student should have received. These grades were then compared to the final grades given the students by Mr. Sherrod. Due to a significant number of discrepancies in the grades given by Mr. Sherrod and the grades which they should have received based upon the Scantrons, Mr. Sherrod was asked to produce the Scantrons for his other classes. Mr. Sherrod was unable to produce the requested Scantrons because he had, contrary to School Board policy, disposed of them. As a result of his failure to produce the Scantrons Mr. Giblin became even more concerned about Mr. Sherrod's performance and ordered further observations of his classes.4 On November 27, 2001, Dr. Hall informed Mr. Sherrod in writing that she intended to conduct an observation of his class sometime during the "week of December 3-7." Mr. Sherrod wrote back to Dr. Hall and indicated that any day that week was fine, except for December 3 because "I will be collecting homework that day." Dr. Hall conducted observations on December 3 and 5, 2001. She conducted the observation on December 3rd despite Mr. Sherrod's suggestion because she did not believe it would take the entire class for Mr. Sherrod to collect homework. By memorandum dated December 11, 2001, Dr. Hall provided Mr. Sherrod with a discussion of her observations and suggested improvement strategies. Dr. Hall found deficiencies in the areas of management of student conduct; presentation of subject matter; human development and learning; learning environment; communication; and planning.5 On December 18, 2001, Mr. Giblin, Dr. Hall, Mr. Sherrod, Jerilyn McCall, Jeanne Burdsall, and Diane Curcio- Greaves participated in an "investigative meeting" to "discuss concerns regarding failure to perform professional duties, insubordination and unprofessional behavior." That meeting was summarized in a Meeting Summary provided to Mr. Sherrod. See Petitioner's Exhibit 32. On January 7, 2002, Mr. Giblin, Dr. Hall, Mr. Sherrod, Ms. Burdsall, Ms. Curcio-Greaves, Esther Bulger, Margaret Newton, and Debra Raing met "to provide information on benchmarks, curriculum and to insure [sic] students are prepared with information to take the district exam." A Meeting Summary was provided to Mr. Sherrod. On April 30, 2002, Mr. Giblin again observed Mr. Sherrod's class. Mr. Giblin's written observations are contained in Petitioner's Exhibit 34. Mr. Giblin found concerns in the areas of presentation of subject matter, communication, and learning environment. A summary of his concerns and recommendations for improvement were provided in writing to Mr. Sherrod on or about May 15, 2002.6 On May 16, 2002, Mr. Sherrod was given an overall unsatisfactory performance evaluation. Seven areas of concern were noted. Under Section A, Teaching and Learning, the following areas of concern were noted: presentation of subject matter; communication; learning environment; and planning. Under Section B, Professional Responsibilities, the following areas of concern were noted: record keeping; working relationships with coworkers; and policies/procedure/ethics. Mr. Giblin did not specifically review the grades of students in Mr. Sherrod's classes before giving Mr. Sherrod his final evaluation. On May 29, 2002, Mr. Sherrod was provided with a School Site Assistance Plan (hereinafter referred to as the "SAP"), "to be initiated August 7, 2002." The SAP was scheduled by agreement to begin at the beginning of the next school year (2002-2003), because the 2001-2002 school year was about to end. Mr. Sherrod was also provided at the same time that he was given the SAP with "workbooks" by Dr. Hall which she indicated were "to be used for fulfilling your plan's suggested activities." During the 2001-2002 school year, Mr. Sherrod was adequately advised of his areas of concern and, despite being given sufficient time to do so, failed to remedy them. Olympic Heights administrators complied with all procedural requirements for the issuance of the SAP. Mr. Sherrod's Employment at Suncoast High School. Prior to the end of the 2001-2002 school year, as the result of meeting with School District Assistant Superintendents, Mr. Sherrod was transferred from Olympic Heights to Suncoast High School (hereinafter referred to as "Suncoast"), on September 23, 2002. For the school year 2002-2003, Kay Carnes was the principal of Suncoast. Kathleen Orloff served as an assistant principal. Upon his transfer to Suncoast, Mr. Sherrod was provided with a two-week orientation period before being assigned teaching responsibilities. Following this orientation period, classes, including some honors classes, were assigned to Mr. Sherrod. On September 30, 2002, a meeting was conducted "to discuss the status of Curtis Sherrod's Assistance Plan." The meeting was attended by, among others, Ms. Carnes and Ms. Orloff. While the Conference Notes of the meeting indicate that Ms. Orloff was to "create a school-site assistance plan" the evidence failed to prove that a "new" SAP was developed.7 On October 21, 2002, the SAP developed at Olympic Heights was modified primarily to reflect that the SAP would be administered at Suncoast (hereinafter referred to as the "Suncoast SAP"). The dates of the SAP were modified to reflect that it had been agreed to in October 2002 with the names of relevant individuals modified. Finally, the improvement strategies of videotaping and audio-taping a lesson were eliminated.8 The Suncoast SAP was provided to Mr. Sherrod during a School-Site Assistance Plan Meeting. During the meeting, which was memorialized in Petitioner's Exhibit 1, additional assistance review days (October 31, November 12, and November 22, 2002) were agreed upon. The second School-Site Assistance Plan Meeting was held on October 31, 2002.9 Mr. Sherrod was informed that Ms. Orloff would observe his class on November 5, 2002, at 1:00 p.m., and that Ms. Carnes would observe him on November 13, 2002. That meeting was memorialized in a Meeting Summary, Petitioner's Exhibit 38. Ms. Orloff, who was primarily responsible for implementing the Suncoast SAP, had been conducting informal observations of Mr. Sherrod's class before scheduling formal observations. The next School-Site Assistance Plan Meeting was held on November 12, 2002. The meeting was memorialized. Mr. Sherrod was informed that planning, presentation of subject matter, communication, learning environment, record keeping, and polices/procedures/ethics were still areas of concern. He was also told that working relations with co-workers was no longer an area of concern. Ms. Orloff conducted observations of Mr. Sherrod on November 5, 2002, and on November 7, 2002. Her observations were summarized in a memorandum to Mr. Sherrod dated November 12, 2002. She noted concerns in the areas of presentation of subject matter, communication, planning, and learning environment. Recommended actions to be taken with regard to each area of concern were also suggested. Although the Suncoast SAP was only required to last for a minimum of 30 days, the plan was continued until February 2003. School-Site Assistance Plan Meetings were held on November 22, 2002, January 7, 2003, and January 16, 2003. Observations of Mr. Sherrod's classes were also conducted by Ms. Orloff and summaries of her findings were provided to him along with suggestions on how to improve. Observations were conducted on November 19, 2002, January 15, 2003, January 27, 2003, and February 6, 2003. From the moment the Suncoast SAP was initiated, Suncoast personnel, including Ms. Carnes and Ms. Orloff, evaluated Mr. Sherrod and attempted to assist him to improve in the areas of concern they noted. Mr. Sherrod was allowed to observe other teachers, the chair of his department worked with him on planning, a teacher who also taught American History worked with him, he was allowed to attend workshops, he was provided the assistance of a peer assistance and review, or "PAR," teacher, and he was provided with documentation as to what was expected of teachers at Suncoast. He was also allowed to teach Contemporary History in substitution for American History. The curriculum of the teacher who had previously taught the class was provided to Mr. Sherrod for his use. At no time did Mr. Sherrod complain to anyone involved in the implementation of the Suncoast SAP that the assistance he was being provided was inadequate or that he desired any additional help. Nor did Mr. Sherrod or his union representative suggest at any time that the procedures required to be followed up to that point were not being adhered to. While a SAP is required to last 30 days, the Suncoast SAP began October 21, 2002, and did not end until February 6, 2003. During this time, he was observed on six different occasions. Additionally, after beginning to teach at Suncoast, Mr. Sherrod was informally observed until the Suncoast SAP began. While Mr. Sherrod corrected the concern over his interaction with co-workers which had been noted at Olympic Heights, Ms. Carnes found through her observations that he continued to be deficient in the areas of presentation of subject matter, communication, learning environment, planning, record keeping, and policies/procedures/ethics. Therefore, on February 6, 2003, Ms. Carnes gave Mr. Sherrod an overall unsatisfactory Classroom Teacher Assessment System (CTAS) evaluation noting these areas of concern. Ms. Carnes informed Arthur C. Johnson, Ph.D., the Superintendent of the School District, of the remaining areas of concern and concluded that "a sufficient number of these deficiencies still exist to warrant an unsatisfactory evaluation." She requested, therefore, by letter dated February 6, 2003, that Mr. Sherrod be placed on Performance Probation for 90 calendar days (hereinafter referred to as the "90-Day Plan"). Mr. Sherrod was provided with a copy of the letter. The basis for the unsatisfactory evaluation and the continuing deficiencies in the areas of concern noted are accurately summarized in the various School-Site Plan Meeting Summaries and the memoranda summarizing observations conducted during the 2002-2003 school year. Some of the most significant problems involved Mr. Sherrod's excessive and inappropriate use of R-rated videos, his failure to timely post student grades,10 and his failure to provide instruction in a manner which was consistent with time-lines suggested for teachers to complete instruction on all materials that were supposed to be covered. By letter dated February 10, 2003, Superintendent Johnson notified Mr. Sherrod in writing that he was being placed on a 90-Day Plan and that it would begin February 20, 2003, and conclude on June 4, 2003. Assistance reviews were scheduled to be held on March 31, May 5, and June 4, 2003, the last day of the 90-Day Plan. Dr. Johnson's letter was provided to Mr. Sherrod on February 19, 2003, at a School-Site Assistance Plan Meeting. The first observation to be conducted pursuant to the 90-Day Plan was to be conducted the week of February 24-28, 2003, by Diane Curcio-Greaves, Instructional Specialist, Professional Standards. This observation was made by Ms. Curcio-Greaves on February 27, 2003. A summary of the observation was provided by Ms. Curcio-Greaves to Mr. Sherrod on March 7, 2003. Ms. Curcio- Greaves noted deficiencies and recommended improvement strategies in the areas of presentation of subject matter, communication, learning environment, and planning. The second observation to be conducted pursuant to the 90-Day Plan was to be conducted the week of March 10-14, 2003, by Wanda Hagan, Area 5 Coordinator. This observation was made by Ms. Hagan on March 13, 2003. A summary of the observation, dated March 25, 2003, was provided by Ms. Hagan to Mr. Sherrod on March 28, 2003. Ms. Hagan noted deficiencies and recommended improvement strategies in the areas of presentation of subject matter, communication, planning, policies/procedures/ethics, and record keeping. She commended him in the area of learning environment. Mr. Sherrod did not attend, due to illness, the first Assistance Review meeting which had been scheduled as part of his 90-Day Plan for March 31, 2003. The remaining scheduled observations did not take place either. On April 14, 2003, Mr. Sherrod broke his knee cap. As a consequence, he did not return to Suncoast High for the remainder of the 2002-2003 school year. By memorandum dated April 30, 2003, he informed Ms. Carnes that he would not be returning to Suncoast that school year and requested a transfer to a school closer to his home. Mr. Sherrod, for the first time, also raised a number of concerns he had not previously expressed about his perceived lack of assistance and fair treatment at Suncoast. While the evidence proved that Mr. Sherrod may have had a genuine belief that he was not being provided effective assistance, the evidence failed to support his perception. Mr. Sherrod's Employment at Roosevelt Middle School. Mr. Sherrod was reassigned to Roosevelt Middle School (hereinafter referred to as "Roosevelt") effective October 3, 2003, after Marcia Andrews spoke with Gloria Crutchfield, principal of Roosevelt, about the availability of a position for him.11 Mr. Sherrod was assigned to teach 7th grade social studies classes, a couple of which were honors classes. On November 3, 2003, Ms. Curcio-Greaves, from Professional Standards, reviewed the 90-Day Plan with Ms. Crutchfield. Ms. Crutchfield did not, however, immediately institute the Plan. Rather, because Mr. Sherrod had begun teaching in mid-term and was new to Roosevelt, Ms. Crutchfield gave him additional time to become familiar with the new school before reinstating the remainder of the 90-Day Plan. A District Assistance Plan Meeting, which Mr. Sherrod attended, was held on December 2, 2003, to discuss reinstatement of the 90-Day Plan. It was necessary to revise the Plan to reflect Mr. Sherrod's unavailability to complete the Plan at Suncoast. It was agreed by all in attendance at the meeting, including Mr. Sherrod, that Mr. Sherrod had 44 more days to complete the 90-Day Plan, and that the Plan would be restarted December 3, 2003. The "evaluation from February 6, 2003, the assistance plan, the original calendar of 90 days, the revised calendar, and the 90-day timeline" were distributed during the December 2, 2003, meeting. The 90-Day Plan, as revised (hereinafter referred to as the "Revised Plan), provided that the "1st Assistance Review" would be held on December 2 and 5, 2003,12 the "2nd Assistance Review" would be held on January 6, 2004, and the "3rd Assistance Review" and "Final Evaluation Conference" would be held on the 90th day, February 6, 2004. Having had two formal observations under the 90-Day Plan, additional formal evaluations were scheduled for the week of December 8-12, 2003, and January 12-16, 2004. The first evaluation under the Revised Plan was conducted on December 12, 2003, by Frank Rodriguez, Assistant Principal, Forest Hill Community High School. His observation notes and suggested strategies were provided to Ms. Crutchfield and Mr. Sherrod by Memorandum dated December 15, 2003. Mr. Rodriguez noted deficiencies in the areas of presentation of subject matter, classroom management, planning, and assessment. Mr. Sherrod submitted a written rebuttal to Mr. Rodriguez's Memorandum. The next scheduled formal evaluation was conducted on January 21, 2004, by Dr. Mary Gray. Ms. Gray's written observations were provided to Mr. Sherrod on or about January 29, 2004. Dr. Gray noted deficiencies in the areas of presentation of subject matter, learning environment, and planning. Mr. Sherrod provided a verbal rebuttal to Dr. Gray. The "2nd Assistance Review" meeting, which had been scheduled to be held on January 6, 2004, was held on January 29, 2004. The meeting was held late because Mr. Sherrod had been absent between January 6 and 12, 2004 (four school days), due to the passing of his mother. It was not held until January 29th out of respect for his loss. The meeting was memorialized in a Meeting Summary, Petitioner's Exhibit 56. During the January 29, 2004, meeting, Ms. Crutchfield suggested to Mr. Sherrod and his representative that he agree to an extension of the Revised Plan to February 10, 2004,13 due to Mr. Sherrod's absence. Mr. Sherrod agreed. The evidence failed to prove whether Ms. Crutchfield had the authority to grant this extension. The next and final evaluation conference was scheduled for February 10, 2004. The same day the "2nd Assistance Review" meeting was held, January 29, 2004, Ms. Crutchfield informed Mr. Sherrod verbally and in writing that she would conduct a formal and final evaluation during the week of February 2-6, 2004. This observation had been scheduled originally for the week beginning January 27, 2004, but was moved back due to Mr. Sherrod's absence during January and Ms. Crutchfield's absence. When informed verbally of the observation, Mr. Sherrod indicated that it was likely that he would be going out on leave in the near future and asked if Ms. Crutchfield could specify the exact date of his evaluation. Ms. Crutchfield indicated she could not. Petitioner's Exhibit 56. By letter dated February 20, 2004, Ms. Curcio-Greaves informed Mr. Sherrod by letter that the final evaluation conference scheduled for February 10, 2004, was being rescheduled to February 16, 2004. Although Ms. Crutchfield had indicated that she would wait until February 10, 2004, to complete the Revised Plan, Mr. Sherrod, as he had advised, left Roosevelt on leave before that date and before Ms. Crutchfield was able to conduct a formal evaluation of him. Based upon her informal evaluations of Mr. Sherrod conducted during the 2003-2004 school year and the formal observations conducted by others during the 90-Day Plan and the Revised Plan, she issued a final evaluation of Mr. Sherrod on February 9, 2004. This reduced the amount of time that Mr. Sherrod had been given to improve his noted deficiencies from approximately 94 days to 93 days: 44 under the 90-Day Plan at Suncoast; 46 under the Revised Plan at Roosevelt; and an additional three days from February 6 to February 9, 2004, at Roosevelt. Ms. Crutchfield found in her final evaluation of Mr. Sherrod that he still had the following areas of concern: presentation of subject matter; communication; learning environment; planning; record keeping; and policies/procedures/ethics. Four of the areas of concern were in "Teaching and Learning" and two were in "Professional Responsibilities." Three concerns in Teaching and Learning alone is sufficient for an overall evaluation of unsatisfactory. Mr. Sherrod's overall evaluation was unsatisfactory. Ms. Crutchfield provided her evaluation of Mr. Sherrod to Dr. Johnson and recommended that his employment be terminated. By letter dated February 25, 2004, Dr. Johnson informed Mr. Sherrod that he would be recommending to the School Board that Mr. Sherrod's employment be terminated. A copy of Ms. Crutchfield's letter of recommendation and Mr. Sherrod's final evaluation were provided to Mr. Sherrod with Dr. Johnson's letter. Mr. Sherrod was also informed of his right to request an administrative hearing, which he exercised. Mr. Sherrod's Performance was Unsatisfactory. Beginning with the 2001-2002 school year and ending with his final evaluation on February 9, 2004, Mr. Sherrod was formally evaluated by nine different School District employees, all of whom were professionally trained to conduct evaluations of teaching personnel on behalf of the School Board. All of those evaluators, while finding Mr. Sherrod deficient in a number of areas, attempted to offer assistance to him which, if followed, could have corrected his deficiencies. During the three school years for which Mr. Sherrod was found to be deficient, all required assistance was provided to Mr. Sherrod to assist him in correcting his deficiencies. Indeed, more assistance than was required was provided to Mr. Sherrod. Mr. Giblin concluded that Mr. Sherrod, for his final evaluation, had evidenced four areas of concern under Teaching and Learning: presentation of subject matter; communication; learning environment; and planning. Except for planning, Dr. Hall found the same areas of concern. Mr. Giblin also concluded that Mr. Sherrod evidenced the following areas of concern under Professional Responsibilities: record keeping; working relationships with coworkers; and policies/procedures/ethics. At the conclusion of the SAP, Ms. Carnes concluded that Mr. Sherrod, for his final evaluation, had evidenced the same areas of concern under Teaching and Learning found by Mr. Giblin: presentation of subject matter; communication; learning environment; and planning. Ms. Orloof had found the same areas of concern during two prior evaluations. Ms. Carnes also concluded that Mr. Sherrod evidenced two of the same areas of concern under Professional Responsibilities found by Mr. Giblin: record keeping; and policies/procedures/ethics. At the conclusion of the 90-Day Plan, Ms. Crutchfield concluded that Mr. Sherrod, for his final evaluation, had evidenced the same areas of concern under Teaching and Learning found by Mr. Giblin and Ms. Carnes: presentation of subject matter; communication; learning environment; and planning. Ms. Crutchfield also concluded that Mr. Sherrod had evidenced the same areas of concern under Professional Responsibilities found by Mr. Giblin and Ms. Carnes: record keeping and policies/procedures/ethics. Ms. Crutchfield, while performing informal evaluations of Mr. Sherrod, did not perform a formal final evaluation of Mr. Sherrod. Instead, she relied heavily upon her informal evaluations and the evaluations of Ms. Curcio-Greaves, Ms. Hagan, Mr. Rodriguez, and Ms. Gray. Those evaluators, while all finding that presentation of subject matter and planning were areas of concern, were not consistent in their findings concerning the areas of communication and knowledge of subject matter. Ms. Hagan commended Mr. Sherrod in the area of knowledge of subject matter and Mr. Rodriguez failed to note the area of knowledge of subject matter as an item of concern. Ms. Gray and Mr. Rodriguez, the last two individuals to formally evaluate Mr. Sherrod before Ms. Crutchfield's evaluation failed to conclude that communication was an area of concern. It is, therefore, found that Ms. Crutchfield's conclusion that Mr. Sherrod had not corrected his deficiencies with regard to the areas of communication and knowledge of subject matter was arbitrary and not supported by the weight of the evidence. Despite the foregoing finding, Ms. Crutchfield's overall evaluation that Mr. Sherrod's performance was unsatisfactory was reasonable and supported by the weight of the evidence. Mr. Sherrod continued since the 2001-2002 school year and, more importantly, throughout the 90-Day Plan to evidence concerns in the areas of presentation of subject matter, planning, record keeping and policies/procedures/ethics. Thus, he evidenced two areas of concern in Teaching and Learning and two areas of concern in Professional Responsibilities, which were not corrected during the 90-Day Plan, despite efforts to assist him to improve. Ms. Crutchfield's final evaluation, with the exceptions noted, accurately reflected Mr. Sherrod's areas of concern and his unsatisfactory performance at the end of the Revised Plan despite the reasonable assistance provided to him. Those areas of concern were consistently found by nine evaluators over three school years and at three different schools. No credible evidence was presented to counter the conclusions reached by the individuals who evaluated Mr. Sherrod or to prove that their conclusions were based upon anything other than their professional judgments concerning Mr. Sherrod's performance. Failure to Prove Bias on the Part of the School Board. While at Olympic Heights, Mr. Sherrod wrote to Dr. Johnson once, the chairman of the School Board twice, and filed a "petition" with the School Board. The subject of the correspondence was Mr. Sherrod's perception of his treatment by officials at Olympic Heights. He believed that he was being harassed and discriminated against. It has been suggested that Mr. Sherrod's correspondence accurately reflects why his performance was found unsatisfactory at Olympic Heights and evidences a bias toward him on the part of all those who evaluated him. This suggestion is not supported by the evidence. At best, Mr. Sherrod's correspondence evidences the poor working relationship between Mr. Sherrod and some of his coworkers. This poor working relationship was noted as an area of concern on his final evaluation by Mr. Giblin. It is not necessary to decide who was the cause of the poor relationship between Mr. Sherrod and others at Olympic Heights. First, the area of concern, to the extent it was Mr. Sherrod's fault, was corrected by Mr. Sherrod and formed no basis in the ultimate finding that Mr. Sherrod's performance, uncorrected by the 90-Day Plan and the Revised Plan, was unsatisfactory. Additionally, the evidence failed to prove that anything which occurred while Mr. Sherrod was teaching at Olympic Heights had any influence on the conclusions concerning his performance at the two schools to which he transferred for the two school years after he sent the correspondence to Dr. Johnson and the School Board. Indeed, the fact that he did not send any further correspondence after the 2001-2002 school year further supports this conclusion. Dr. Dunn's Conclusions. Dr. Dunn opined at the final hearing that Mr. Sherrod did not over-infuse African-American history into his course materials. Dr. Dunn's opinions, however, are entitled to little weight. Most importantly, Dr. Dunn, unlike the nine individuals who evaluated Mr. Sherrod, did not actually observe Mr. Sherrod teaching during the times relevant to this case. In fact, Dr. Dunn has never observed Mr. Sherrod. Additionally, the content of Mr. Sherrod's classes, while the catalysts of the greater scrutiny afforded Mr. Sherrod's classes, was not the basis for the conclusion of those who evaluated Mr. Sherrod that his performance was unsatisfactory. The School District's Appraisal System. The School District's Instructional Performance Appraisal System was approved the then-Commissioner of Education in 1999. The Appraisal System has not been further reviewed since 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ratifying Mr. Sherrod's suspension and discharging him from further employment in the Palm Beach County Public Schools. DONE AND ENTERED this 8th day of July, 2005, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 July, 2005.
The Issue The ultimate issue in this proceeding is whether proposed Florida Administrative Code Rule 61G15-21 is an invalid exercise of delegated legislative authority.
Findings Of Fact Florida Administrative Code Rule 61G15-21.004, in relevant part, states: The criteria for determining the minimum score necessary for passing the Engineering Fundamentals Examination shall be developed through the collective judgment of qualified experts appointed by NCEES to set the raw score that represents the minimum amount of knowledge necessary to pass the examination. The judges shall use a Modified Angoff Method in determining the minimally acceptable raw score necessary to pass the Fundamentals of Engineering Examination. Using the above mentioned Modified Angoff Method, the judges will indicate the probability that a minimally knowledgeable Fundamentals of Engineering examinee would answer any specific questions correctly. The probability of a correct response is then assigned to each question. Each judge will then make an estimate of the percentage of minimally knowledgeable examinees who would know the answer to each question. The totals each of the judges is added together and divided by the number of judges to determine the overall estimate of the minimum standards necessary. The minimum number of correct answers required to achieve a passing score will take into account the relative difficulty of each examination through scaling and equating each examination to the base examination. The raw score necessary to show competence shall be deemed to be a 70 on a scale of 100. A passing grade on Part Two of the examination is defined as a grade of 70 or better. The grades are determined by a group of knowledgeable professional engineers, who are familiar with engineering practice and with what is required for an applicable engineering practice and with what is required for an applicable engineering task. These professional engineers will establish a minimum passing score on each individual test item (i.e., examination problem). An Item Specific Scoring Plan (ISSP) will be prepared for each examination item based upon the NCEES standard scoring plan outline form. An ISSP will be developed by persons who are familiar with each discipline including the item author, the item scorer, and other NCEES experts. On a scale of 0-10, six (6) will be a minimum passing standard and scores between six (6) and ten (10) will be considered to be passing scores for each examination item. A score of five (5) or lower will be considered an unsatisfactory score for that item and examinee will be considered to have failed that item. To pass, an examinee must average six (6) or greater on his/her choice of eight (8) exam items, that is, the raw score must be forty- eight (48) or greater based on a scale of eighty (80). This raw score is then converted to a base 100 on which, as is noted above, a passing grade will be seventy (70). The proposed changes to Florida Administrative Code Rule 61G15-21.004, in relevant part, state: The passing grade for the Engineering Fundamentals Examination is 70 or better. The criteria for determining the minimum score necessary for passing the Engineering Fundamentals Examination shall be developed through the collective judgment of qualified experts appointed by NCEES to set the raw score that represents the minimum amount of knowledge necessary to pass the examination. The judges shall use a Modified Angoff Method in determining the minimally acceptable raw score necessary to pass the Fundamentals of Engineering Examination. Using the above mentioned Modified Angoff Method, the judges will indicate the probability that a minimally knowledgeable Fundamentals of Engineering examinee would answer any specific questions correctly. The probability of a correct response is then assigned to each question. Each judge will then make an estimate of the percentage of minimally knowledgeable examinees who would know the answer to each question. The totals each of the judges is added together and divided by the number of judges to determine the overall estimate of the minimum standards necessary. The minimum number of correct answers required to achieve a passing score will take into account the relative difficulty of each examination through scaling and equating each examination to the base examination. The raw score necessary to show competence shall be deemed to be a 70 on a scale of 100. The passing grade for the Principles and Practice Examination is 70 or better. A passing grade on Part Two of the examination is defined as a grade of 70 or better. The grades are determined by a group of knowledgeable professional engineers, who are familiar with engineering practice and with what is required for an applicable engineering practice and with what is required for an applicable engineering task. These professional engineers will establish a minimum passing score on each individual test item (i.e., examination problem). An Item Specific Scoring Plan (ISSP) will be prepared for each examination item based upon the NCEES standard scoring plan outline form. An ISSP will be developed by persons who are familiar with each discipline including the item author, the item scorer, and other NCEES experts. On a scale of 0-10, six (6) will be a minimum passing standard and scores between six (6) and ten (10) will be considered to be passing scores for each examination item. A score of five (5) or lower will be considered an unsatisfactory score for that item and examinee will be considered to have failed that item. To pass, an examinee must average six (6) or greater on his/her choice of eight (8) exam items, that is, the raw score must be forty- eight (48) or greater based on a scale of eighty (80). This raw score is then converted to a base 100 on which, as is noted above, a passing grade will be seventy (70). Petitioner resides in Tampa, Florida. On April 11, 2003, Petitioner took a national examination that Petitioner must pass to be licensed by the state as a professional engineer. On July 1, 2003, Petitioner received a letter from the Board advising Petitioner that he had received a failing grade on the examination. On July 2, 2003, Petitioner unsuccessfully requested the raw scores on his examination from a representative of the National Council of Examiners for Engineering and Surveying (NCEES). The NCEES is the national testing entity that conducts examinations and determines scores for the professional engineer examination required by the state. On July 9, 2003, Petitioner submitted a formal request to the Board for all of the raw scores related to Petitioner "and all past P.E. Exams that the Petitioner had taken." A representative of the Board denied Petitioner's request explaining that the raw scores are kept by the NCEES and "it is not their policy to release them." The Board's representative stated that the Board was in the process of adopting new rules "that were in-line with the policies of the NCEES." On July 31, 2003, Petitioner requested the Board to provide Petitioner with any statute or rule that authorized the Board to deny Petitioner's request for raw scores pursuant to Section 119.07(1)(a), Florida Statutes (2003). On the same day, counsel for the Board explained to Petitioner that the Board is not denying the request. The Board is unable to comply with the request because the Board does not have physical possession of the raw scores. Petitioner and counsel for Respondent engaged in subsequent discussions that are not material to this proceeding. On August 6, 2003, Petitioner requested counsel for Respondent to provide Petitioner with copies of the proposed rule changes that the Board intended to consider on August 8, 2003. On August 27, 2003, Petitioner filed a petition with the Board challenging existing Florida Administrative Code Rule 61G15-21.004. The petition alleged that parts of the existing rule are invalid. Petitioner did not file a challenge to the existing rule with DOAH. The Petition for Hearing states that Petitioner is filing the Petition for Hearing pursuant to Subsections 120.56(1) and (3)(b), Florida Statutes (2003). However, the statement of how Petitioner's substantial interests are affected is limited to the proposed changes to the existing rule. During the hearing conducted on January 29, 2004, Petitioner explained that he does not assert that the existing rule is invalid. Rather, Petitioner argues that the Board deviates from the existing rule by not providing examinees with copies of their raw scores and by failing to use raw scores in the determination of whether an applicant achieved a passing grade on the exam. Petitioner further argues that the existing rule benefits Petitioner by purportedly requiring the Board to use raw scores in the determination of passing grades. The elimination of that requirement in the proposed rule arguably will adversely affect Petitioner's substantial interests. The Petition for Hearing requests several forms of relief. The Petition for Hearing seeks an order granting Petitioner access to raw scores, a determination that Petitioner has met the minimum standards required under the existing rule, and an order that the Board grant a license to Petitioner. The Petition for Hearing does not request an order determining that the proposed rule changes constitute an invalid exercise of delegated legislative authority.
The Issue The issue to be resolved is whether Petitioner is entitled to additional credit for her response to question nos. 122 and 222 of the civil engineering examination administered on October 31, 1997.
Findings Of Fact On October 31, 1997, Petitioner took the civil professional engineering licensing examination. A score of 70 is required to pass the test. Petitioner obtained a score of 69. Petitioner challenged the scoring of question nos. 122 and 222. As part of the examination challenge process, Petitioner's examination was returned to the National Council of Examiners for Engineering and Surveying where it was re-scored. In the re-score process, the grader deducted points from Petitioner's original score. Petitioner was given the same raw score of 6 on question number 122; however, on question number 222 her raw score of 4 was reduced to a 2. Petitioner needed a raw score of 48 in order to achieve a passing score of 70; she needed at least three additional raw score points to obtain a passing raw score of 48. Petitioner is entitled to a score of 6 on problem number 122. The solution and scoring plan for that problem required the candidate to obtain a culvert size in the range of 21-36 inches. The Petitioner incorrectly answered 3.1 feet or 37.2 inches. She is not entitled to additional credit for problem number 122 because she answered the question with the wrong size culvert. Problem number 122 required the candidate to use a predevelopment peak flow of 40 cubic feet per second (cfs). Petitioner used 58.33 cfs. She chose the maximum flow rather than the predevelopment peak flow. In solving problem number 122, Petitioner chose a design headwater depth of 4.8 feet. The correct solution required a design headwater depth of 5.7 feet. Petitioner made another mistake in problem number 122; she failed to check the water depth in the downstream swale. Petitioner concedes she was given sufficient information to solve problem number 122. She understood what the question was asking of her. She admits that she did not compute the critical depth of the water and that she did not complete the solution. Question number 222 had three parts. The candidate was required to determine the footing size, to select the reinforcing steel, and to provide a sketch for a concrete column located along the edge of a building. Petitioner understood the question and was provided enough information to solve the problem. Petitioner correctly checked the footing size as required by the first part; however, she did not select the reinforcing steel or show the required sketch. Therefore, Petitioner did not complete enough of the problem to qualify for a score of 4 points. She is entitled to a score of 2 points. The examination questions at issue here were properly designed to test the candidate's competency in solving typical problems in real life. The grader (re-scorer) utilized the scoring plan correctly. Petitioner has been in the United States for approximately eleven years. She lived in Romania before she came to the United States. In Romania, Petitioner used only the metric system in her professional work. While she has used the English system since moving to the United States, Petitioner is more familiar with the metric system. The Principles and Practice examination is an open-book examination. Petitioner took a book entitled the Fundamentals of Engineering Reference Handbook to the examination. When the proctor examined her books, she told the Petitioner she was not permitted to keep the handbook. The proctor took the handbook from the Petitioner. Petitioner protested the confiscation of her reference book because she had used the same book in two previous tests. About ten minutes later, the proctor's supervisor returned the book to Petitioner. Petitioner's book was returned at least ten minutes before the test began. She was permitted to use the book during the test. There is no persuasive evidence that the proctor's mistake in temporarily removing Petitioner's reference book caused her to be so upset that she failed the test. Candidates were not permitted to study their books prior to the beginning of the examination. Petitioner may have been nervous when the test began. However, Petitioner received a perfect score of ten points on the first problem she worked, problem number 121.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that the Board of Professional Engineers enter a Final Order confirming Petitioner's score on the examination and dismissing the Petitioner's challenge. DONE AND ENTERED this 13th day of January, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 13th day of January, 1999. COPIES FURNISHED: Natalie A. Lowe, Esquire Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 William Bruce Muench, Esquire 438 East Monroe Street Jacksonville, Florida 32202 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dennis Bartin, President Florida Engineers Management Corporation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether the intended award of the electrical subcontract for Phase 2 of the Comprehensive Needs Project at Oak Ridge High School (the Project) is a decision or intended decision of an "agency" as that term is defined in Subsection 120.52(1), Florida Statutes (2010).1
Findings Of Fact The School Board entered into a Standard Construction Management Contract with Wharton-Smith, Inc. (Wharton-Smith), for the Project. Wharton-Smith is a private corporation. The construction management contract provides that Wharton-Smith is to perform all work in connection with the management and construction of the Project. The work to be performed by Wharton-Smith is composed of two phases: the pre-construction phase services and the construction phase services. For the construction phase, Wharton-Smith is required to "furnish and pay for all management, supervision, financing, labor, materials, tools, fuel, supplies, utilities, equipment and services of every kind and type necessary to diligently, timely, and fully perform and complete in a good and workmanlike manner the construction of the [Project] (or designated portions thereof) in accordance with the terms and conditions of the Contract Documents." The construction management contract called for Wharton-Smith to provide the School Board with a guaranteed maximum price (GMP) proposal for the total sum of the construction management fee and the cost of the work, which included the subcontractor costs. Prior to determining the GMP, Wharton-Smith is required to competitively bid the subcontracts. The use of competitive bids is to foster competition and to select the most economical, qualified bidder to perform the work. Paragraph 36.2 of the construction management contract provides: A subcontractor is any person or entity who is performing, furnishing, supplying or providing any portion of the Work pursuant to a contract with Construction Contractor. Construction Contractor shall be solely responsible for and have control over the subcontractors. Paragraph 36.3 of the construction management contract provides: When Construction Contractor submits its guaranteed maximum price proposal to Owner, Construction Contractor also shall submit to Owner a list of the names, addresses, licensing information and phone numbers of the subcontractors Construction Contractor intends to use for each portion of the Work, as well as identifying in writing those portions of the Work it intends to perform with its own employees. The list identifying each subcontractor cannot be modified, changed, or amended without prior written approval from Owner. . . . Construction Contractor shall continuously update that subcontractor list, so that it remains current and accurate throughout the entire performance of the Work. Construction Contractor shall not enter into a subcontract with any subcontractor, if Owner reasonably objects to that subcontractor. Construction Contractor shall not be required to contract with anyone that it reasonably objects to. . . . All subcontracts between Construction Contractor and it subcontractors shall be in writing and are subject to Owner's approval. The following provisions of the construction management contract are relevant to the solicitation and award of subcontracts: The purpose of this Paragraph is to insure that Construction Contractor [Wharton-Smith] makes a genuine effort to stimulate subcontractor interest in the Project and maximize participation of potential qualified subcontractors in the bidding process. At all times Owner [School Board] shall have access to and the right to require copies of all correspondence, records, files and other bid documents (including all bid responses) with respect to the bidding process. Further, Construction Contractor shall notify Owner of the date, time and place of all bid openings and Owner shall have the right to attend any and all such bid openings. All bid openings shall be conducted in Orange County, Florida. Finally, Construction Contractor shall develop in writing subcontract bidding procedures for Owner's review and approval. Once those procedures have been approved by Owner, Construction Contractor shall not deviate from such procedures without obtaining Owner's prior written consent. * * * 37.1.2 Within thirty (30) days after execution of this Contract, Construction Contractor shall submit a written "Construction Market Analysis and Prospective Bidders Report" setting out recommendations and providing information as to prospective bidders. As various bid packages are prepared for bidding, Construction Contractor shall submit to Owner and Design Professional [architect and/or engineer] a list of potential bidders for their review and approval. Construction Contractor shall be responsible for promoting and encouraging bid competition. * * * Construction Contractor shall prepare invitations for bids and all other appropriate bid documents for all procurement of long lead items, materials and services, for subcontractor contracts and for site utilities. All such invitations for bids and bid packages shall be submitted to Design Professional and Owner for their review and approval prior to distribution to bidders. Except as hereafter provided in Paragraph 37.5, all subcontractors are to be awarded to the lowest responsive and responsible bidder. * * * 37.2.3 Subcontracts exceeding $25,000.00 must be publically advertised for at least two (2) consecutive weeks prior to the established bid opening time and date. All such bids must be in writing and shall be received and opened in the manner and at the location, date and time established in the bid documents. All such bids received by Construction Contractor shall be entered on a bid tabulation sheet and a copy of both the bids and the tabulation sheet shall be sent to Owner and Design Professional for their review and comment prior to Construction Contractor awarding the subcontract. * * * For each subcontract that exceeds $25,000, Construction Contractor shall, unless waived in writing by Owner, conduct a pre-bid conference with prospective bidders and pre-award conference with the successful bidder. Design Professional and Owner shall be invited to all such meetings. In the event questions are raised which require an interpretation of the bidding documents or otherwise indicate a need for clarification or correction of the invitation, Construction Constructor shall transmit these to the Design Professional in writing and upon receiving clarification or correction in writing from Owner or Design Professional shall issue an addendum to the bidding documents to all the prospective bidders. Notwithstanding the provision above requiring award of subcontracts to the lowest responsive and responsible bidder, Construction Contractor may award a subcontract to someone other than the lowest responsive and responsible bidder provided Construction Contractor has first received Owner's express written consent to such award. Owner's consent to any such award will be at Owner's sole discretion. Whenever Construction Contractor wishes to award a subcontract to someone who is not the lowest responsive and responsible bidder, Construction Contractor must notify Owner in writing, setting out in detail the reasons and justification for the suggested award. The subcontract for electrical work for Phase 2 of the Project was for more than $25,000. Wharton-Smith did the following in the procurement of the electrical subcontract for the Project: prepared the bid packages, advertised, issued the invitation for bids, held the pre-bid conference, collected the bids, opened and reviewed the bids, analyzed the bids for compliance with the scope of work, determined which bidder was the lowest responsive and responsible bidder, and selected the subcontractor. The bid form included in the invitation to bid provided: The Bidder understands and agrees that the Construction Manager and/or Owner reserves the right to reject this Bid or any and all bids for the Project, and to waive minor irregularities or informalities in any bid and to award Alternates in any order that in the Construction Manager's judgment will be in the Owner's best interests. This wording was prepared by Wharton-Smith without regard to the provisions of the construction management contract. Southern Atlantic had done the electrical work for Phase 1 of the Project. Southern Atlantic submitted a bid for the electrical subcontract for Phase 2 of the Project. Edwin Hutchins, the president of Southern Atlantic, was advised by David Lewis, who was employed by Wharton-Smith, that Southern Atlantic was not the lowest responsive and responsible bidder. The construction management contract provides that the School Board may review and comment on the bids that are submitted. Based on Petitioner's Exhibit 2, which is a bidder summary, the School Board did make some comments on the bids that were submitted for all subcontracts. No comments were made by the School Board concerning Southern Atlantic's bid. The School Board did not issue the invitation to bid, did not conduct the pre-bid conference, did not open the bids, and did not determine which was the lowest responsive and responsible bidder. The School Board will not be entering into a subcontract with the lowest responsive and responsible bidder for the electrical work on the Project and will not control or be responsible for the work of the subcontractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Southern Atlantic's Petition. DONE AND ENTERED this 10th day of November, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 2010.
Findings Of Fact Donald A. Moyant, Petitioner, operates a contractors' exam school in Brandon, Florida, at which he preps builders to take the CILB exam for licensure as contractors. Petitioner took the exam given in June 1985 and received a score of 58.60. A score of 70.00 is required to pass this examination. The only answer that Petitioner questions is the answer he supplied to question No. 2, which related to the number of reinforcing bars required in a concrete slab of given dimensions and spacings of the bars. In Petitioner's solution to the problem he dropped the fractional bar that resulted from dividing the length of the slab by the spacing between bars. The correct solution requires the addition of a bar for this fractional spare. Petitioner's purpose in pursuing this proceeding is to obtain information to use in his Contractors Exam School, Inc. Since he would not have passed the examination even if his solution to question No. 2 had been marked correct, Petitioner is without standing to bring this action because he is doing so on behalf of the school he runs and not to allow him to receive a passing grade.
Findings Of Fact Petitioner, William Everett Warriner, is an applicant for licensure by examination to practice architecture in the State of Florida. The architecture examination in the State of Florida consists of two parts, one of which is a written examination given in December of each year, and the other of which is a Site Planning and Design Test given in June of each year. Petitioner meets all requirements for admittance to the licensure examination. Petitioner took the Site Planning and Design Test portion of the National Council of Architectural Registration Boards (NCARB) in June, 1982. This portion of the examination is a twelve-hour sketch problem involving design and site consideration in which the applicant is graded on his or her design solution to the program requirements furnished, which are identical for each candidate at a given examination, on the basis or certain stated criteria, by trained graders who are registered architects. The examination is administered by the Department of Professional Regulation and is supplied to the State of Florida, as well as to all of the jurisdictions of the United States by NCARB. The examination involves the design of a structure, in this case a small municipal airport terminal building, by an applicant, including requirements for placing the structure on the site, elevations, facades, floor plans, and other aspects. The applicant is supplied with a preexamination booklet which sets forth the architectural program to be accomplished and the various requirements to which the applicant is expected to apply himself in order to receive a passing grade. At the time of the actual examination, the applicant is furnished other information to enable him to more adequately design the facility and demonstrate his command of the architectural requirements. In general, the examination was designed to require the applicant to design a solution to the site plan and the building design problems submitted to him by NCARB. The pertinent portion of the examination allows the examination graders to determine whether an applicant is able to coordinate the various structural design, technical aesthetic, energy, and legal requirements in order to resolve the design and site plan problem. The grading of the Site Planning and Design Test is accomplished by the review of the candidate's product by at least three architects selected by the various architectural registration boards of several states, who are given training by NCARB in an effort to, as much as is possible, standardize their conceptions of the minimal competence required for a passing grade. Each reviewer then assesses the product submitted by candidates/examinees on a "blind grading" basis, that is without knowledge of the identity or geographical origin of the submitter, or of the grade assigned the product by other reviewers/graders. The graders assess the product with a view toward identifying areas of strength or weakness within an overall determination of satisfaction and assign a holistic numerical score ranging from "0" (fail) to "4" (pass). Grades "1" (incomplete) and "2" (poor) are failing grades, and grades "3" (minimally acceptable) and "4" (good) are passing grades. If grades "1" or "2" are awarded, the graders are required to indicate the examinee's weakness, but these indications of weakness must not be arbitrary. All solutions are graded by three examiners, except those solutions to which a "0" has been given by one examiner. Solutions which are not clearly passing or failing are graded by a fourth examiner. In order for an applicant to pass, he must receive passing grades from at least two examiners, who independently grade his solution to the problem. A passing grade, as was stated above, is defined as a holistic grade of "3" or "4" as set forth in Rule 21B-14.04, Florida Administrative Code. Petitioner received a grade of "2", which is a failing grade, from each of the three graders who graded his examination. Though the Petitioner demonstrated an effort to comply with the criteria set forth in the examination and indicated in each area identified as weak on the examination grade report wherein he felt he had achieved the desired goal and standard, Mr. Burke, a registered architect and a member of the Florida Board of Architecture, identified several material areas wherein the Petitioner failed to observe program requirements. In the Site Planning and Site Design area, Petitioner has not shown any details as to how handicapped individuals would get across the median in the parking area in that there is no showing of a ramp from the pavement over the curb and across the median, nor is there any showing of lighting over the curbs for the handicapped. Further, on the issue of service area location, as drawn by Petitioner, this layout would require all service vehicles to pass in front of the airport through passenger traffic to get to the service cut for the service drive, which, in itself, is located too close to the baggage handling area. In addition, the site aesthetics were deficient in completeness and clarity in that landscaping was not shown, nor was appropriate consideration given to water flow and drainage. Additional deficiencies were demonstrated in the areas of building planning and design. The functional relationships of programmed areas were basically accomplished, but major problems exist in the general lobby area. While the test problem calls for the display area to be in the general lobby area, in Petitioner's solution, they are away from the ticket area and somewhat hidden. Those facilities which need exposure do not get it. Pedestrian circulation between the baggage claim area and the lobby exits is obstructed by the location of the car rental booths. In addition, traveling from the deplaning area on the second floor to the baggage claim area on the ground floor is made too difficult. The solution's conformity to barrier-free requirements is weak. There is little or insufficient protection from the elements at the entrances and exits. The solution's requirement for 74-foot trusses in the terminal creates excessive wasted volume in the attic area, and the overall form is awkward. In addition, one page of the problem is not completed, and emergency exits are not shown as required. In the section involving technical aspects of the plan, the first two sub-areas were marked weak primarily because of the incompleteness of the technical plan for the foundation. Further, only a very few technical notes appear on the solution, providing insufficient information, and the use of wood for a public building is dangerous. Petitioner disagrees with his grade and presented evidence to show that his failure was a marginal one. He feels he has rebutted approximately 75 percent of the failing items and passed the written part of the examination (Part B) on the first attempt. He has been involved in residential design for twelve years and has considerable experience. He feels the comment on the handicap ramps is valid, but that is only one part of the problem. There is sufficient other provision made for the handicapped in his solution. The lobby displays would have the least likelihood of being seen if placed in the ticket area as suggested. He opines that the covered walkways over the two major entrances are sufficient, and it would be superfluous to have covers over every door. Repeated rebuttal, such as those items listed, display Petitioner's difference of opinion with the grade assigned his problem, but not that his examination was graded in an arbitrary or capricious way or in a manner different than that utilized in grading the examination of every candidate taking the same examination throughout the United States. Also, his excuse for incompleteness that he only had twelve hours in which to complete the problem is invalid. The same time was allotted all candidates, including those who passed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED: That a final order be entered finding that Petitioner has failed to achieve a passing score on the June 1982 architecture examination and upholding the grade awarded to Petitioner on that examination. RECOMMENDED this 3rd day of January, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 3rd day of January, 1983. COPIES FURNISHED: John J. Rimes, III, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Mr. William Everett Warriner 305 North East Fifth Avenue Gainesville, Florida 32601 Mr. Herbert Coons, Jr. Executive Director Board of Architecture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner, COOK-REIFF, is an architectural firm located in Broward County, Florida. Respondent, BOARD is the governing body for the Broward County, Florida school district. On February 17, 1977, the BOARD approved the composition of the ASC. Since that dated the ASC, composed of: The Director of School Facilities, the Director of Facility Planning and Construction, two architects, two engineers, a representative of the District Advisory Committee, a representative of the Broward County Council for the P.T.A., and one designee from the office of the Superintendent of Schools for Broward County, Florida has acted for the BOARD in performing the major portions of those functions required of the BOARD by Section 287.055, Florida Statutes. The responsibility for selection of an architectural firm and the negotiation of the fee for School Board projects has been delegated by the School Board to the ASC. On January 21, 1982, the BOARD adopted Rule 6GX6-7003. The Rule as amended on January 20, 1983, sets forth administrative procedures for selecting professional services in compliance with the Consultants' Competitive Negotiations Act, Section 287.055, Florida Statutes (Supp. 1984), and Rule 6A-2.04, Florida Administrative Code. In particular, this Rule sets forth criteria to be considered in selection of an architectural firm for BOARD projects. Prior to 1982, the ASC used Chapter 287, Florida Statutes, as it's guideline in selecting architectural firms. The procedures and criteria contained in the administrative rule were modeled after Chapter 287, Florida Statutes. From January 1982, up to and including September 30, 1985, the ASC selected various architects for contracts for school projects by following the criteria provided for in the BOARD'S Rule 6GX6-7003. From the inception of the Rule in 1982 until the October 17, 1985, meeting of the BOARD, the BOARD approved each and every recommendation of the ASC. At no time prior to October 15, 1985, did anyone including BOARD members, directly or indirectly express dissatisfaction with the criteria that were contained within Rule 6GX6-7003 or the selection process that was being used by the ASC. On May 16, 1985, the BOARD approved advertising for the selection of an architect to design the new Prototype High School. In accordance with the authorization to advertise, the BOARD, through the department known as School Facilities, notified architects of the project and sought applications. On June 14, 1985, COOK-REIFF filed its application, i.e., an answered Architectural Questionnaire, with the Director of School Facilities for consideration for the Prototype High School. The application was reviewed and evaluated by Mr. Crouch using an evaluation form developed by Mr. Pulver's office. Mr. Pulver serves as director for School Facilities for the BOARD and Mr. Crouch, who mainly acts as Mr. Pulver's assistant, is the Director for Facility planning and Construction Supervision. On September 17, 1985, the ASC, in keeping with procedure established since 1982, met to "shortlist" i.e., to reduce the field of applicants for the Prototype High School. On September 17, 1985, a short list, which included COOK-REIFF, was prepared by the ASC which reduced the field of architectural firms to eight (8). Notice was then given to each of these firms advising that they would be allowed to make a twenty (20) minute oral presentation on September 30, 1985, before the ASC. On September 30, 1984, the ASC met with seven (7) members present and interviewed each of the eight (8) architectural firms on the short list. Following the interviews, the ASC met and discussed the eight (8) applicants. Following the discussions of these applicants, the following occurred: Each of the committee members that were present, wrote their first, second and third preferences on a piece of paper. This piece of paper was then placed in the middle of the table and one of the committee persons, Ms. Pat Mason, opened each of the ballots and announced the results. As a result of this first ballots the list of eight firms was narrowed to five firms and a second vote was held in the same manner. As a result of the second vote, three architectural firms were selected in order of preference with COOK-REIFF being selected by the ASC as its first preference as the architect for the Prototype High School project. Both the meetings of September 17 and September 30th. 1985 were open to the public. The record does not reflect whether notice of these meetings was published or advertised to place the public on notice as to when the ASC would be meeting. The format of voting used by the ASC was chosen so that various members would not be influenced by how other members might vote. The voting procedure which is described above is the same procedure which the ASC had used on different occasions in the past since 1982 where voting was by ballot and not by motion from the floor. This procedure was referred to as "secret ballot" in the Minutes of the ASC. No objections to these minutes were made by any member and Mr. Crouch received no objections from the members. The BOARD was aware that this method of balloting was being used by the ASC. No members of the then constituted ASC ever objected to this manner of voting either before or after September 30, 1985. In fact, prior to October 15, 1985, no one, including BOARD members had ever objected to this process which had been in use since 1982. And, prior to November 21 or 25, 1985, no one ever advised Mr. Pulver as Chairman of the ASC, that the process might be in violation of State Law. By letter dated October 3, 1985, Mr. Crouch notified COOK-REIFF that they had been selected by ASC as its first choice as the architect for the prototype high school. Following notification that they had been selected, COOK-REIFF through Cary B. Cooke negotiated a fee for the contract with Mr. Robert Pulver the BOARD's representative. These negotiations took place over a two-day period with a resultant $706,500.00 fee. Although Mr. Crouch negotiated the feed the fee as well as the balance of contract would have to be submitted to the BOARD for approval. After the fee was negotiated, Mr. Edwin Jacquith, the Project Coordinator for the Prototype High School for the BOARD, met with Cary B. Cook of COOK-REIFF on at least three (3) occasions to discuss, among other things, a Schedule of Events. Mr. Jacquith provided Mr. Cook with various documents including aerial photographs, surveys, facility lists, specifications, Chapter 6A-2 Florida Administrative Code and a proposed Schedule of Events. Mr. Jacquith requested that Mr. Cook prepare a Schedule of Events and submit it to Mr. Jacquith. Mr. Cook prepared a Schedule of Events which was provided to Mr. Jacquith and approved. In addition, after the fee was negotiated, but prior to October 15, 1985, Mr. Cook reviewed the documents which were provided to him by Mr. Jacquith and Mr. Cook prepared certain preliminary drawings in conjunction with the Prototype High School project. The minutes of the meetings of September 17, 1985, and September 30, 1985, were first officially provided to the BOARD members as supporting documentation for the recommendation for the approval of the contract with COOK-REIFF. The aforesaid recommendation was placed on the BOARD's agenda for October 17, 1985. The BOARD met on October 15, 1985, for a conference meeting to review the agenda for the meeting on October 17, 1985. On October 17, 1985, the BOARD discussed "Item E-14--Assignment of architect--prototype high school" with regard to several members concern over the BOARD's present procedure as set out in its Rule 6GX6-7003 and voted to disapprove the Recommendation of the ASC. Although one member mentioned in passing some concern over the balloting process used by the ASC, the minutes do not reflect any further mention or discussion on this point and the balloting does not appear to be the basis for disapproval of Item E-14. The minutes do not reflect that any member of the BOARD ever contended that the ASC failed to follow the procedure adopted by the BOARD in its Rule 6GX6-7003 in January 1982 and amended in January 1983 or that the selection of COOK-REIFF was improper. The BOARD heard presentations with regard to Item E-14 by COOK-REIFF, counsel for COOK-REIFF, school administrators and by the general public. At the October 17, 1985 meeting, Mr. Robert Pulver, the BOARD'S representative, responded at length to questions from BOARD members with emphasis on how the ASC applied the criteria contained in Rule 6GX6-70O3 and was surprised that the BOARD questioned the criteria that the ASC had been following since 1982. After the vote to reject the recommendation of the ASC by the BOARD on October 12, 1985, COOK-REIFF filed a Notice of Protest and subsequently filed a formal written protest in the form of the document known as Petition To The School Board of Broward County, Florida, in accordance with Section 120.53(5)(b), Florida Statutes (Supp. 1984), as amended by Chapter 85-180, Section 77, Laws of Florida. The BOARD convened a meeting on November 21, 1985, to consider the petition of COOK-REIFF but no decision was reached on this date and the meeting was adjourned to allow counsel for the BOARD to research the matter and reconvened on November 25, 1985. It was during the meeting on November 25, 1985, that the violation of Chapter 286, Florida Statutes, commonly known as the Florida Sunshine Law, was first raised. The violation involved the method of voting used by the ASC in the September 30, 1985 meeting which was described by the ASC chairman in the minutes of that meeting as a "secret ballot." The method of voting is more fully set out in Finding of Fact 15. The BOARD has not selected another architectural firm to be awarded with the contract for the Prototype High School Project. BOARD Rule 6GX6-7003 has not been amended or changed since January 20, 1983. The BOARD has however, recommended to the Superintendent of Schools that he formulate a committee for the purpose of reviewing the criteria and procedures so that this policy can be amended and, in fact, such a committee has met for that purpose. COOK-REIFF'S competence is not at issue in this matter. The BOARD had used a form contract with architectural firms for a number of years. Although this form contract was modified during 1985, the only changes to that contract are contained in the section with respect to professional fees for services rendered. In selecting COOK-REIFF as the architectural firm to be awarded the Prototype High School project, the ASC followed the procedures and applied the criteria contained in the BOARD's Rule 6GX6-70O3.
Recommendation Based on the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Respondents School Board of Broward County, Florida enter a final order awarding the contract for architectural services on the Prototype High School to the Petitioner, Cook-Reiff Association, Inc. Respectfully submitted and entered this 6th day of February 1986, in Tallahassee, Florida. WILLIAM R. CAVE 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 6th day of February 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-3985-BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1, except for last sentence which is included in conclusions of law. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 8. Adopted in Finding of Fact 10. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Adopted in Finding of Fact 16 but clarified. Adopted in Finding of Fact 15 but clarified. Adopted in Finding of Fact 17. Adopted in Finding of Fact 18 but clarified. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 21 but clarified. Adopted in Finding of Fact 22. Adopted in Finding of Fact 23. Rejected as unnecessary, immaterial and irrelevant. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25. Rejected as unnecessary. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Finding of Fact 32. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Adopted in Finding of Fact 8, but corrected to show the date as May 16, 1985. 2. Adopted in Finding of Fact 9. 3. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 2. Adopted in Finding of Fact 12 but corrected to show the date as September 17, 1985. Adopted in Finding of Fact 32. Adopted in Finding of Fact 4. Adopted in Finding of Fact 14 and 15. Adopted in Finding of Fact 15 and 18. Adopted in Finding of Fact 16. Adopted in Finding of Fact 15 with the exceptions of the language secret ballot" which was changed to "procedure was referred to as secret ballot" in the minutes . . ." and that the "voting was . . . conducted prior to any discussion by the committee as to architectural presentations" which are rejected as not supported by the minutes of the September 30, 1985 meeting of the ASC. See Petitioner's Exhibit No. 8. Adopted in Finding of .Fact 15. Adopted in Finding of Fact 15. Adopted in Finding of Fact 20. Adopted in Finding of Fact 21. Adopted in Finding of Fact 21. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. The first two (2) sentences adopted in Finding of Fact 24. The last sentence is rejected as not supported by substantial competent evidence in that the minutes do not reflect any discussion of "secret balloting." 21. Adopted in Finding of Fact 24 except for the portion indicating that the BOARD discussed "secret balloting" which rejected for the same reasons expressed above in paragraph 20. COPIES FURNISHED: Maurice M. Garcia, Esquire Kenneth A. Rubin, Esquire 2021 Tyler Street Post Office Box 650 Hollywood, Florida 33022 Edward J. Marko, Esquire Suite 322, 1040 Bayview Drive Post Office Box 4369 Fort Lauderdale, Florida 33338-4369 Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Superintendent School Board of Broward County 1320 Southwest Fourth Street Ft. Lauderdale, Florida 33312
The Issue Whether the Palm Beach County School Board (hereinafter referred to as the "School Board") should sustain Petitioner's challenge to the preliminary determination made with respect to School Board Project No. 349661 to reject all bids submitted and to readvertise.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: In March of 1993, the School Board issued an Advertisement for Bid (hereinafter referred to as the "Advertisement") through which it solicited the submission of bids on a construction project (School Board Project No. 349661, which is hereinafter referred to as the "Project") involving HVAC replacement, reroofing and other renovation work at Jupiter High School's Building No. 2. The School Board indicated in the Advertisement, among other things, that it "reserv[ed] the right to waive informalities in the Bids, or to reject all Bids." The Advertisement, along with the other bid documents issued in conjunction with the Advertisement, including, but not limited to, the Instructions to Bidders (hereinafter referred to as the "Instructions") and the Proposal Form, were compiled in a Project Manual that was made available for public inspection. Section 00100 of the Project Manual contained the Instructions, which provided, in pertinent part, as follows: Definitions Bidding Documents include the Advertisement for Bid, Notice to Prospective Bidders, Policies of the School Board, Instructions to Bidders, Contract, General Conditions, Supplementary General Conditions, Special Conditions, Bid Bond, Performance and Payment Bond, Proposal Form, and the proposed Contract Documents including all drawings, specifications and addenda issued prior to bid opening. Addenda are written or graphic instruments issued prior to the execution of the Contract which modify or interpret the Bidding Documents, including Drawings and Specifications, by additions, deletions, clarifications or corrections. Addenda will become part of the Contract Documents when the Construction Contract is executed. Bidding Procedures All Bids must be prepared using the forms contained in these specifications and submitted in accordance with the Instructions to Bidders. A Bid is invalid if it has not been deposited at the designated location prior to the time and date for receipt of Bids indicated in the Advertisement for Bid, or prior to any extension thereof issued to the Bidders. Unless otherwise provided in any supplement to these Instructions to Bidders, no Bidder shall modify, withdraw or cancel his Bid or any part thereof for sixty (60) days after the time designated for receipt of Bids in the "Advertisement for Bid." Preparation and Submission of Bid Proposal Form: Each Bidder shall use Proposal Form contained in these specifications, indicate his Bid prices thereon in proper spaces, for the entire work and for the alternates, if applicable. Any erasures or other corrections in the proposal must be explained or noted over the signature of the Bidder. Proposals containing any conditions, omissions, unexplained erasures, alternates, items not called for or irregularities of any kind may be rejected by the Owner. Each proposal shall specify a price written in ink in both words and figures for each of the separate items, as called for, except when the Bid is called for on a lump sum basis. Lump sum Bids shall be shown in both words and figures; where there is a variation between the written amount and figures, the lower amount will be taken as the Bid price. Bid Modification: Bid Modification will be accepted from Bidders if addressed to the Owners, at the place where Bids are to be received, and if received prior to the opening of Bids. Modifications must be in writing and must be signed. . . . Modifications will be read by Owner or Architect prior to opening formal Bids. Withdrawal of Bids: Bids may be withdrawn on written request received from Bidders prior to the time fixed for opening. . . . Negligence on the part of the Bidder in preparing the Bid confers no right for withdrawal of the Bid after it has been opened. 4. Examination of Bidding Documents: 4.01 Each Bidder shall examine the Bidding Documents carefully and, not later than eight (8) days prior to the receipt of Bids, shall make written request to the Architect for interpretation or correction of any ambiguity, inconsistency or error therein which he may discover. Any interpretation or correction will be issued as an Addendum by the Architect. Only a written interpretation or correction by Addendum shall be binding. No Bidder shall rely upon any interpretation or correction given by any other method. . . . 6. Rejection of Bids 6.01 The Bidder acknowledges the right of the Owner to reject any or all Bids and to waive any informality or irregularity in any Bid received. In addition, the Bidder recognizes the right of the Owner to reject a Bid if the Bidder failed to furnish any required Bid security, or to submit the data required by the Bidding Documents, or if the Bid is in any way incomplete or irregular; to reject the Bid of a Bidder who is not in a position to perform the Contract; and to readvertise for other or further Bid Proposals. Award of Contract The Contract, if awarded by the Owner, will be awarded to the lowest bona fide responsible Bidder; provided the Bid is reasonable and it is in the interest of the Owner to accept the Bid. The method of determining the lowest bona fide Bid from Bidders shall be the Base Bid price plus or minus Alternate Prices listed on the Bid Proposal Form which are accepted by the Owner. Alternates will be considered for acceptance by the Owner as set forth in the Alternate section of the Specifications, Division One-General Requirements, Section 101030-Alternates. Section 101030 of the Project Manual, which addressed the subject of "Alternates," provided, in pertinent part, as follows: 1.3 Related Work Described Elsewhere: Pertinent sections of these specifications describe materials and methods required under the various alternates. . . . The method for stating the proposed Contract Amount is described on the Proposal Form, Section 00310. Base Bid: A. Shall include all HVAC replacement, construction of the building roofing and all items shown on drawings and included in these specifications other than as specifically listed alternates. Alternate Number One: Provide an Architect/Owner on-site construction trailer of size and features stipulated below in lieu of such being provided by the Owner. Section 00310 of the Project Manual contained the Proposal Form that all bidders were required to use. It provided, in pertinent part, as follows: DATE SUBMITTED: TO: The School Board of Palm Beach County, Florida 3326 Forest Hill Boulevard West Palm Beach Florida 33406 PROPOSAL FOR: JUPITER HIGH SCHOOL BUILDING NO.2- HVAC REPLACEMENT/REFOOF/RENOVATIONS 500 NORTH MILITARY TRAIL JUPITER, FLORIDA 33458 PROJECT NO. 349661 Having become familiar with conditions at the Project Site and having carefully examined the Bidding Documents, including the Advertisement, Instructions to Bidders, and the Contract Documents, including but not limited to the General Conditions, Supplementary Conditions, Specifications, Details, Schedules, Addenda and Drawings, the Undersigned proposes to furnish all materials, labor equipment and anything else required for the entire Project in accordance with the Documents for the following sum: BASE BID: STATE PRICE IN WORDS AND FIGURES: ($ ) (PRICE IN WORDS) (FIGURES) ALL ALTERNATES MUST BE BID FOR BID TO BE RESPONSIVE. State price in words and figures. ADDITIVE ALTERNATE NO. 1: (Owner/Architect On-Site Construction Trailer) ($ ) (PRICE IN WORDS) (FIGURES) * * * If he is notified of the acceptance of this Bid within sixty (60) days of the time set for the opening of Bids, the Undersigned agrees to execute a Contract for the above Work within eight (8) Owner business days after notice that his Bid has been accepted for the above stated compensation minus or plus any accepted Alternates in the form of a contract presented by the Owner. . . . On March 30, 1993, the School Board issued Addendum No. 1, which added a fire protection system to the Project's scope of work and provided as follows: RE: Jupiter Community High School Building No. 2 HVAC Replacement, Reroof, Renovations The School Board of Palm Beach County, Florida School Project No. 349661 OEF Project No. 50-005625 P&L Project No. 92-061 To all bidders on the above project: Please note contents hereon and insert into the bidding documents that were issued to you on the above entitled project. The following supersede and supplant corresponding items in the specifications, drawings and details. It will be required that each Contractor- Builder/Developer, upon submitting his proposal for this project, indicate on the proposal form in the space provided that all addenda are included in his proposal. Failure to do so may cause rejection of a company's bid or proposal. The School Board of Palm Beach County, Peacock & Lewis Architects and Planners, Inc. and their consultants assume no liability or responsibility for the information on printed materials for this project that were not distributed from the office of Peacock & Lewis Architects and Planners, Inc. GENERAL: AD1-1: FIRE PROTECTION SYSTEM Contractor shall include within his bid and itemize on the proposal form the cost for a complete and functioning fire protection system as described by the attached specification Section 15500- Fire Protection dated 3/30/93, Addendum No. 1. Paragraph 1.2 A.6 of Section 15500, which was attached to Addendum No. 1, provided as follows: Contractor shall identify the cost associated with this scope of work on the proposal form as an itemized price which shall be included within the total bid price. Refer to proposal form. On April 5, 1993, the School Board issued Addendum No. 2, which revised the Proposal Form to reflect the additional pricing requirements imposed by Addendum No. 1. Addendum No. 2 added to the Proposal Form, immediately under the space provided for "Additive Alternative No. 1," the following: UNIT PRICE NO. 1: (Fire Protection System) Contractor shall include within his bid and itemize on the proposal form the cost for a complete and functioning fire protection system as described by the attached specification Section 15500- Fire Protection dated 3/30/93, Addendum No. 1. ($ ) (PRICE IN WORDS) (FIGURES) No other changes material to the instant case were made to the Proposal Form or to any of the other bid documents. It was the intention of those who were responsible for the preparation and issuance of Addenda Nos. 1 and 2 to require bidders to include the price of the fire protection system in their "Base Bid;" 1/ however, they failed to clearly and unambiguously express their intention in these addenda or any of the other bid documents. No other bid document aside from the revised Proposal Form made any reference to a "unit price." Unit prices are typically used in the construction industry to price work added to the initial scope of work, as was the fire protection system in the instant case. In interpreting the bid documents, Joseph Pirrotta, Petitioner's chief executive officer, relied upon his many years of experience in the construction industry. Based upon his reading of these documents, he reasonably believed that the "Unit Price No. 1 (Fire Protection System)" was a separate and distinct component of the "total bid price" and that, although it was to be included in the "bid" he submitted, it was not to be a part of the "Base Bid." While the bid documents were also susceptible to a contrary construction, Pirrotta's was the more reasonable of the two interpretations. Pirrotta completed the revised Proposal Form accordingly. Petitioner was one of three bidders to submit bids in response to the Advertisement. The other two bidders were Intervenor and Janus & Hill Corporation (hereinafter referred to as "Janus"). Petitioner quoted the following prices on the completed revised Proposal Form it submitted: "Base Bid"- $1,672,000.00; "Additive Alternate No.1"- $3,400.00; and "Unit Price No. 1"- $80,000.00. As noted above, Petitioner's "Base Bid" did not include the price of the fire protection system. Intervenor quoted the following prices on the completed revised Proposal Form it submitted: "Base Bid"- $1,947,000.00; "Additive Alternate No.1"- $6,000.00; and "Unit Price No. 1"- $36,484.00. Unlike Petitioner, Intervenor included in its "Base Bid" the price of the fire protection system; however, even if it had not done so, its "total bid price" would still have been substantially higher than Petitioner's. Janus quoted the following prices on the completed revised Proposal Form it submitted: "Base Bid"- $1,970,000.00; "Additive Alternate No.1"- $2,020.00; and "Unit Price No. 1"- $90,000.00. 2/ After bid opening, the School Board's contract administrator for the Project, Albert Paglia, correctly determined that Petitioner was the lowest responsive bidder. Thereafter, he telephoned Pirrotta to congratulate him on his company's successful bid. Before his telephone conversation with Pirrotta, Paglia assumed that Petitioner's "Base Bid" included the price of the fire protection system. He learned otherwise, however, after speaking with Pirrotta, who informed him that Petitioner's "total bid price," excluding "Additive Alternate No. 1," was its "Base Bid" of $1,672,000.00, plus the $80,000.00 for the fire protection system reflected as "Unit Price No. 1" on its completed revised Proposal Form. Paglia and others with whom he was working on the Project perceived this as a problem. They therefore brought the matter to the attention of Lawrence Zabik, the School Board's assistant superintendent for support services. Zabik's initial reaction was to award the contract for the Project, including the fire protection system, to Petitioner for $1,672,00.00, Petitioner's "Base Bid." Pirrotta was unwilling to undertake the Project for that amount. By letter to Zabik dated May 5, 1993, Intervenor gave notice to the School Board of its intent to protest any award made to Petitioner. The letter provided as follows: Based on our review of the Bid Documents submitted by J.D. Pirrotta on April 20, 1992, we are notifying you of our intent to protest the award of the above referenced project to any firm other than Milne & Nicholls, Inc. We will base our protest on the non- responsiveness of J.D. Pirrotta's bid. As you are aware, Mr. Pirrotta requested an additional $80,000 to compensate him for his misinterpretation of Unit Price #1 as an additive alternate. It is now apparent that his bid is incomplete and therefore non- responsive. Please advise us of the Owner's intention with regard to the Award on this project. Zabik referred the letter to the School Board's Office of the General Counsel. By letter dated May 13, 1993, authored by one of the School Board's attorneys, the School Board announced that it intended to reject all bids and readvertise, giving the following explanation: In the instant case, since the bid is susceptible to two interpretations, one of which would be that the Fire Protection System was included in the base bid, and the other that it was not leads to an unfair economic advantage by one bidder over others. The example would be that the low bidder in the instant case is permitted to add the Fire Protection System on as an alternate when it was not intended. Given the ambiguity, the bid should be rejected and the specifications rewritten and readvertised. [Citations omitted.] In the instant case, rejection of all bids is the only reasonable solution so that all parties are given a fair playing field. The School Board has not acted arbitrarily or capriciously in arriving at this decision to readvertise, given the parties place a different interpretation on the bid proposal form. The concerns expressed in the letter that Pirrotta obtained an "unfair economic advantage" over the other bidders as a result of the "ambiguity" in the bid documents are unwarranted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Palm Beach County School Board enter a final order sustaining the instant bid protest and awarding to Petitioner, as the lowest and best responsive bidder, the contract for School Board Project No. 349661 for $1,752,000.00, plus the price for "Additive Alternate No. 1" should the School Board choose to include this alternate within the Project's scope of work. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of July, 1993. STUART M. LERNER 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 7th day of July, 1993.
