05-003555 Forever Lawn And Landscaping, Inc. vs. Department Of Management Services, Division Of Facilities Management And Building Construction Status: Closed Recommended Order on Friday, November 3, 2006.

Summary: Petitioner`s performance under a lawn care services contract with Respondent was deficient and Respondent was justified in reducing the monthly payments made to Petitioner. The methodology used to calculate the amount deducted was reasonable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FOREVER LAWN AND LANDSCAPING, )

INC., )

)

Petitioner, )

)

vs. ) Case No. 05 - 3555

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

FACILITIES MANAGEMENT AND )

BUILDING CONSTRUCTION, )

)

Respondent. )

)

RECOMMENDED ORDER

A duly - noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on July 12,

2006, in Lakeland, Florida , and on August 17 , 2006 , in

Tallahasse e, Florida.

APPEARANCES

For Petitioner: James Domineck, Jr., Esquire

100 South Kentucky Avenue, Suite 295

Lakeland, Florida 33801 - 5096

For Respondent: Clifford A. Taylor, Esquire

Michael J. Barry, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160D

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

The issue is whether Petitioner’ s performance under its

lawn care service contract with the Department of Management

Services was deficient , and , if so, whether t he amounts deducted

by the Department from the monthly payments made to Petitioner

under the contract were reasonable and appropriate.

PRELIMINARY STATEMENT

By letters dated June 1, July 15, August 17, and August 24,

2005, t he Department of Management Serv ices (Department) advised

Petitioner that it was reducing the payment s made to Petitioner

under the la wn care service contract between the parties for

April , May, June, and July 2005 b ecause of alleged deficiencies

in Petitioner’s performance in those mont hs . The letters

advised Petitioner that it “may have a right to an

administrative hearing in this matter, pursuant to Sections

120.569 and 120.57(1), Florid a Statutes.” Petitioner timely

requested a hearing on the reductions for the months of April,

June , a nd July 2005 . Petitioner did not request a hearing on

the re duction for the month of May 2005.

On September 22, 2005, a hearing was held before the

De partment pursuant to Sect ion 120.57(2), Florida Statutes

(2005) . 1 It was determined at the hearing th at “certain disputed

material facts exist between the parties” and, therefore, the

case was transferred to the Division of Administrative Hearings

(DOAH) for a hearing pursuant to Section 120.57(1), Florida

Statutes. See Fla. Admin. Code R. 28 - 106.305(2). The case was

received by DOAH on September 23, 2005.

The final hearing was originally scheduled for January 9,

2006, but it was twice continued at the parties’ request . The

hearing commenced in Lakeland on July 12, 2006, but it was not

completed on tha t date. The final hearing reconvened and was

completed in Tallahassee o n August 17, 2006 .

At the final hearing, the Department presented the

testimony of Andre Smith, John Gornto, Joe Pierce, Bob Morales ,

Charles Beall, Jack Smith, Dan Eberhart, and Kris Parks. The

Department’s Exhibits DMS - 1 through DMS - 11 were received into

evidence. Petitioner presented the testimony of Andre Smith and

did not offer any exhibits.

The two - volume Transcript of the first day of the final

hearing wa s filed on July 31 , 200 6 . The one - volume Transcript

of the second day of the final hearing was filed on

September 21 , 2006. Petitioner r equested and, without

objection, the parties were given 30 days from th at date to file

proposed recommended orders (PROs).

The Department t imely filed a PRO on October 20, 2006 , and

Petitioner filed a PRO on October 26, 2006 . On October 27 ,

2006, the Department filed a m otion to s trike Petitioner's

untimely PRO. The motion is denied . B oth of the PROs have been

given due consideration in th e preparation of this Recommended

Order .

FINDINGS OF FACT

1. Petitioner provid es la wn care services to residential

and commercial properties in the central Florida area . Andre

Smith is Petitioner’s owner and president.

2. In Novem ber 2004, the Departmen t entered into a

contract with Petitioner for la wn care services at nine

D epartment buildings. The contract was awarded to Petitioner

through a c ompetitive procurement process in which Petitioner

was the low bidder . The contract number was ITN No. 26 - 991 -

490 - Z.

3. Petitioner was to be paid a total of $7,384.92 per

month under the contract . Each of the nine building s was

apportioned a specific amount of th e total price in the

contract.

4. The scope of work under the contract generally included

lawn car e services, open field mowing, and irrigation system

maintenance. The lawn care services required under the contract

included mowing, edging, weed control, fertilizing, watering,

shrub and tr ee pruning, mulching, and clean - up.

5. The cont ract specified the frequency that the services

were to be p erformed . Mowing was to be done weekly between

April and November , and every two weeks between December and

March; hedges and shrubs were to be trimmed at least monthly

unless more frequent trimming was require d for aesthetic

reasons; and mulching was to be done in March and September.

6. The contract required Petitioner to take soil samples

at the beginning of the contract and annually thereafter. The

results of the soil samples were to be used to determine w hether

Petitioner need ed to apply iron, lime, or other minerals to the

lawns.

7. The contract required Petitioner to inspect each

building ’s irrigation system at the beginning of the contract ,

and required Petitioner to provide a report to the building

ma nager regarding a ny repair work needed on the system.

Petitioner was also required to check the irrigation system on

every visit to ensure that it was operating properly .

8. The contract required Petitioner to apply pre - emergent

weed control and fertiliz er. The weed co ntrol was to be applied

in the s pring and the f all, and the fertilizer was to be applied

three times during the year on an agreed upon schedule.

9. The mulching required by the contract was to be done in

March and September . T he mulch was to be maintained at a depth

of f our inches throughout the year . The contract required

Petitioner to use cypress mulch.

10. The day - to - day operation of the buildings subject to

the contract was the responsibility of on - site building

managers, not the Dep artment staff in Tallahassee. T he building

managers were responsible for the direct oversight of

Petitioner’s work under the contract , and they were also

responsible for reviewing and evaluating Petitioner’s

performance.

11. Petitioner began providing s ervices under the contract

in December 2004.

12. Petitioner received full payment from the Department

for the services that it provided from December 2004 through

March 2005, even though s everal of the building managers were

not satisfied with Petitioner’ s performance under the contract

during that period.

13. Several of the building managers spoke with Mr. Smith

regarding their concerns with Petitioner’s p erformance under the

contract . They also documented Petitioner’s performance

deficiencies on the mo nthly summary report forms that the

contract required Petitioner to submit in order to obtain

payment.

14. Starting in April 2005, the building managers were

required to fill out evaluation forms in addition to the monthly

summary report forms. The impe tus for the creation and use of

the evaluation forms was Petitioner’s continuing unsatisfactory

performance under the contract.

15. The building managers used the evaluation forms to

r at e Petitioner’s performance as “good,” “fair,” or “poor” on

the 20 cat egories of service that Petitioner was required to

perform under the contract. Each service was assigned an equal

weight -- e.g. , one twentieth or five percent of the contract --

and if all 20 services were not applicable to a particular

building, the wei ght assigned to each service was adjusted

accordingly .

16. The eval uation form was developed by Kris Parks, who

was the contract administrator for Petitioner’s contract. Ms.

Parks developed the form on her own. She did not get the input

of the building m anagers in developing the form, and Mr. Smith

was not consulted regarding the development of the form.

17. The ev aluation forms were used by Ms. Parks in

conjunction with the monthly summary report forms in order to

reduce the payment s made to Petition er under the contract.

18. E ach service for which P etitioner was given a “poor”

rating by a building manager resulted in a five percent

deduction in the amount paid to Petitioner. Typically, a “poor”

rating reflected work that was not performed at all by

Petitioner, rather than work that was performed

unsatisfactorily.

19. In some situations, a smaller deduction was made if

the comments on the evaluation form or the monthly summary

report form reflected partial performance despite the “poor”

rating. For example, if Petitioner received a “poor” rating for

mowing, but the comments reflected that Petitioner provided

services twice during the month rather than the required four

times, the deduction was 2.5 percent rather than five percent.

20. The reductio n of payments under the contract for

unsatisfactory performance or unperformed work is specifically

authorized by Section 3.13 of the contract.

21. S ection 3.13 of the contract states that the monthly

summary report form “will be used by [the building man agers] to

track performance of services, in order to determine a

proportional deduction in payment for services that are not

performed as agreed” in the contract. It does not mention any

other form.

22. The contract does not define “proportional deducti on”

and i t does not include the methodology to be used in

calculating the deduction. The contract is silent on those

issues.

23. Petitioner’s contract with the Department was amended

in May 2005 to reduce the number of buildings that Petitioner

served fr om nine to three . The three remaining buildings were

the ones closest to Petitioner’s business location in Lakeland,

i.e. , t he Hargrett and Trammel Buildings in Tampa and th e

Peterson Building in Lakeland.

24. The reduction in the scope of the contract w as the

result of Petitioner’s continuing unsatisfactory performance

under the contract , and it reflected the Department’s well -

founded view that Petitioner was not able to handle all nine

b uildings. The Department staff was tr ying to help Mr. Smith by

all owing Petitioner to retain a portion of the contract rather

than canceling the contract altogether based upon Petitioner’s

poor performance .

25. The invoices submitted by Petitioner for April 2005

through July 2005 were as follows: $ 7,384.92 (April); $ 7,384.92

(May); $ 1,938.64 (June); and $1,938.64 (July). The April and

May invoices were based upon the nine buildings served by

Petitioner in those months . T he June and July invoices we re

based upon the three buildings served by Petitioner in those

month s.

26. The Department did not pay the inv oices for April 2005

through July 2005 in full. It paid Petitioner $ 2,451. 78 2 for

April (33.2 percent of the invoice) , $ 835.82 for May (11.6

percent) , $ 453.39 3 for June (2 3.4 percent) , and $ 904.66 for July

( 46.7 percent) .

27. The amounts deducted -- $ 4,933.1 4 for April; $ 6,531.10

for May; $ 1, 485.25 for June; and $ 1, 033.98 for July -- were

based upon the Department’s determination that Petitioner failed

to perform certain work under the contract. The amounts

ded ucted were calculated by Ms. Parks using the information

provided to her by the building managers on the evaluation

forms, as described above.

28. The letters by which the Department informed

Petitioner of the payment reductions advised Petitioner that i t

“may have the right to an administrative hearing regarding this

matter, pursuant to Sections 120.569 and 120.57(1), Florida

Statu t es . ” The letters explained what Petitioner was required

to do to request a hearing and advised Petitioner that the

"[f]ailu re to timely request a hearing will be deemed a waiver

of [the] right to a hearing."

29. Petitioner timely filed letters challenging the

deduc tions for April, June, and July 2005 . The total deductions

for those months were $7,452.3 7 .

30. Petitioner did not file anything challenging the

deduction for May 2005 . Therefore, t he $6,531.10 deduction fo r

that month is not at issue in this proceeding.

31. P etitioner is not entitled to the full amount billed

to the Department for April, June, and July 2005 bec ause all of

the services required under the contract were not performed

during those months . M r. Smith conceded this point in his

testimony at the final hearing . 4

32. Mr. Smith contend ed at the hearing that the amounts

deducted by the Department were not reasonable i n light of the

services that Petitioner did provide. However, Mr. Smith did

not identify what he would consider to be a reasonable deduction

for the work that Petiti oner admittedly did not perform.

33. Petitioner routinely failed to provide mowing services

at each of the buildings at the intervals required under the

contract. For example, Petitioner only mowed one time during

the month of June 2005 at the Hargrett and Trammel Buildings,

rather than the four times required under the contract .

34. Petitioner did not put down m ulch at any of the

buildings in March 2005, as required by the contract. When the

building managers asked Mr. Smith about the mulch, he told them

that he would get to it.

35. Mr. Smith testified that he was told by the Department

staff in Tallahassee t hat the mulch could be put down in any

month so long as it was done twice a year. That uncorroborated,

self - serving testimony was not persuasive.

36. Petitioner put down mulch at some, but not all of the

buildings in Apri l and May 2005 . The mulch that Petitioner put

down did not cover all of the areas requiring mulch and it was

not put down at the required four - inch depth. At the Trammel

Building, for example, the mulch put down by Petitioner was less

than half of that r equired by the contract. No mulch was ever

put down at the Hurston Building in Orlando or the Grizzle

Building in Largo.

37. Petitioner’s performance was often deficient in

regards to trimming and clean - up of debris. For example, on one

occasion at the Trammel Building, Petitioner left more than 60

bags of leaves in and around the building’s dumpster ; at the

Hargrett building, there were overhanging tree limbs that went

untrimmed for an extended period; and Petitioner routinely

failed to do trimming at t he Grizzle Building, although he did a

good job picking up debris at that building.

38. The services provided by Petitioner at the Trammel

Building got so bad that the building manager had to hire

another company at a cost of approximately $1,800 to clean up

the site so that it would be presentable for an event in the

vicinity of the building that was attended by a U.S. Senator and

other dignitaries.

39. The building managers were never given the results of

the soil samples that Petitioner was required to take at the

beginning of the contract even though they repeatedly requested

that information. When Mr. Smith was asked about the soil

samples by the building managers, he told them that he would get

them done.

40. Mr. Smith claimed at the hearing that he sent the

results of the soil samples to the Department staff in

Tallahassee, although he could not recall who m spec ifically he

sent the results to, and he offered no documentation to

corroborate his testimony on this issue . Petitioner’s testimony

rega rding the soil samples was not persuasive. The Department’s

witnesses credibly testified that they never received the

results of t he soil samples from Petitioner.

41. Indeed, t he evidence was not persuasive that

Petitioner ever took the soil samples requ ired by the contract.

The print - outs presented a t the final hearing, Exhibit DMS - 11,

do not have any identifying information that would corroborate

Mr. Smith’s testimony that the samples described in the print -

outs were from the buildings that were the su bject of the

contract. 5 Moreover, the print - outs are dated March 8, 2005,

which is more than four months after the samples were supposed

t o have been taken by Petitioner, and several of the soil

samples had pH levels outside of the range set forth in the

contract.

42. Mr. Smith testified that Petitioner applied fertilizer

and pre - emergent weed control at each of the buildings, as

required by the contract. That uncorroborated, self - serving

testimony was not persuasive.

43. The more persuasive evidence es tablishes that

Petitioner did not apply fertilizer or pre - emergent weed

control. On this issue, the building managers credibly

testified that they were never advised by Mr. Smith that the

fertilizer or pre - emergent weed control was being applied, even

tho ugh those services were to supposed be performed pursua nt to

a schedule agreed upon with the building managers; t he building

managers credibly testified that they did not observe any signs

that fertilizer had been applied, su ch as the greening of the

grass ; and fertilizer could not have been applied at the Hurston

Building without killing all of the grass because the fertilizer

needs to be watered into the lawn , and the sprinkler system at

the building was not working at the time.

44. Petitioner failed to perform the required inspection

of the irrigation system at several of the buildings, including

the Hurston Building, at the beginning of the contract in order

to determine whether any repairs needed to be done . The system

at the Hurston Building did not work for an extended period of

time, which caused large sections of grass around the building

to die from a lack of water.

45. The performance deficiencies described above were

cited on the monthly summary report forms and the evaluation

forms completed b y the building managers, which in turn were

used by Ms. Parks to calculate the amount deducted from the

monthly payments made to Petitioner under the contract.

46. Petitioner was responsible for the costs of the mulch ,

fertilizer, and pre - emergent weed co ntrol required under the

contract . The money that Petitioner “ saved ” by not providing

those services likely exceeds the amounts deducted by the

Department pursuant to Section 3.13 of the co ntract . For

example , the mulch purchased by Petitioner for the Tr ammell

Building cost approximately $2,250, and that was only half of

the mulch needed for that building alone.

47. Petitioner is no longer providing la wn care s ervices

to the Department under the contract. The contract was revoked

based upon Petitioner’s unsatisfactory performance.

48. The revocation of the contract , which occurred at some

point prior to August 2005, is not at issue in this proceeding.

CONCLUSIONS OF LAW

49. DOAH has jurisdiction over the parties to and subject

matter of this proceedin g pursuant to Sections 120.569 and

120.57(1), Florida Statutes. See also Exhibit DMS - 1, at § 5.37

(dispute resolution section of the contract, which affords

Petitioner a “right to review pursuant to Chapter 120 of the

Florida Statutes” for “[a]ny dispute concerning performance of

the C ontract ” ).

50. This is a de novo proceeding to formulate final agency

action even th ough the agency action at issue -- i.e. , the

payment reductions -- has already been effectuated by the

Department . See generally Gopman v. Dept. of Educ a tion , 908 So.

2d 1118, 1121 - 22 (Fla. 1st DCA 2005) . The purpose of this

proceeding is to give Petitioner “an opportunity to change the

[Department]’s mind.” Capeletti Bros., Inc. v. Dept. of General

Services , 432 So. 2d 1359, 1363 (Fla. 1s t DCA 1983).

51. Petitioner did not request a hearing on the deduction

for M ay 2005 , despite the clear point - of - entry and notice of

rights contained in the letter from the Department related to

that month’s payment . Therefore, Petitioner waived its righ t to

contest the payment reduction for that month. See , e.g. , Jancyn

Manufacturing Corp. v. Dept. of Health , 742 So. 2d 473 (Fla. 1st

DCA 1999) ; Lamar Advertising Co. v. Dept. of Transportation , 523

So. 2d 712 (Fla. 1st DCA 1988); § 120.569(2)(c), Fla. St at. ;

Fla. Admin. Code R. 28 - 106.111(4).

52. The deductions for the other months -- April 2005 ,

June 2005, and July 2005 -- are technically still preliminary

agency action. Therefore, the Department has the burden to

prove by a preponderance of the eviden ce that the proposed

payment reductions for those months are justified, reasonable,

and appropriate under the contract . See De pt. of Transportation

v. J.W.C. Co., Inc. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981)

( burden of proof is on the party asserting the affirmative in an

administrative proceeding) ; Department 's PRO, at 2

( acknowledging that the Department “had the initial burden of

proving a breach of contract, entitlement to make deductions for

failure to perform and the reasonableness of such deduction s”)

and 11 (same); § 120.57(1)(j), Fla. Stat.

53. Section 3.13 of the contract aut horizes the Department

to make “proportional deduction s ” in the monthly payment s made

to Petitioner for services not performed as required under the

contract. The contrac t does not specify how the “proportional

deduction s ” are to be calculated.

54. The preponderance of the evidence establishes that

Petitioner failed to perform a number of the services required

by the co ntract and that his performance of the services that he

did provide was deficient much of the time. Thus , the

Department was justified in reducing the monthly payments made

to Petitioner pursuant to Section 3.13 of the contract .

55. The preponderance of the evidence further establishes

that the methodolo gy utilized by the Department to determine th e

amount of the “proportional deductions” in the payments made to

Petitioner is reasonab le and that the amounts deducted are

appropriate in light of the extent of the deficiencies in

Petitioner’s performance und er the contract.

56. The methodology utilized by the Department gives

effect to the plain meaning of the phrase “proportional

deduction.” See Merriam Webster Online Dictionary, at www.m -

w.com (defining “proportional” to mean “corresponding in size,

degr ee, or intensity” and “having the same or a constant

ratio”). Moreover, contrary to Petitioner's argument, t he

methodology utilized by the Department is not in consistent with

the sta tement in the contract that the monthly summary report

form s “ will be use d . . . in order to determine a proportional

deduction in payment for services t hat are not performed as

agreed . ” Indeed, t he evaluation form s used by Ms. Parks to

convert the building managers’ performance ratings into

percentage deductions were based up on the information contained

on the monthly summary report form s .

57. The methodology uti lized by the Department was not

“impulsive” or “haphazard,” as argued by Petitioner in its PRO;

it was a reasonable approach that relies upon the building

managers’ evaluations of Petitioner’s performance and gives

Petitioner credit for the work that it satisfactorily performed.

On this point, it is noteworthy t hat Petitioner did not present

any evidence regardin g an alternate methodology that, in its

opinion, would be more reasonable tha n the methodology utilized

by the Department .

RECOMMENDATION

Based upon the foregoing F indings of F act and C onclusions

of L aw, it is

RECOMMENDED that the Department of Management Services

issue a final order rejecting P etitioner’s ch allenge to the

payment reductions made by the Department for the months of

April , June, and July 2005.

DONE AND ENTERED this 3rd day of November , 2006, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Admin istrative 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 Adm inistrative Hearings

this 3rd of November, 2006.

ENDNOTES

1 / All statutory references are to the 2005 version of the

Florida Statutes.

2 / The April payment was originally $2,096.9 1, see Exhibit DMS - 2

(check numbers 4 - 04 964 460 and 4 - 04 971 895), but Petitioner

was subsequently paid an additional $354.87 for the month. See

Exhibit DMS - 3 (letter dated July 15, 2005).

3 / The June payment was originally $436.36, see Exhibit DMS - 4

(letter dated August 17, 2005, and che ck numbers 4 - 05 329 941

and 4 - 05 329 942), but Petitioner was subsequently paid an

additional $17.03 for th e month. See Exhibit DMS - 5 (letter

dated August 24, 2005).

4 / See , e.g. , Transcript, at 213 - 14. See also Petitioner’s PRO,

at 4, 7.

5 / Mr. Smit h testified that he was confident that the print - outs

were for samples taken at the buildings subject to the contract

because, at the time, Petitioner did not have any other

contracts that required soil samples and that the Department

contract “is one of t he first times that we sent [the testing

company, Lesco] soil samples for a contract.” See Transcript,

at 319. Earlier in his testimony, however, Mr. Smith indicated

that Petitioner did a lot of business with Lesco , s e e

Transcript, at 30, which calls int o question his later

testimony.

COPIES FURNISHED :

Tom Lewis, Jr., Secretary

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399 - 0950

Steven Ferst, General Counsel

Department of Management Services

4050 Esplanade Way

Talla hassee, Florida 32399 - 0950

James Domineck, Jr., Esquire

Law Offices of James Domineck, Jr., P.A.

100 South Kentucky Avenue, Suite 295

Lakeland, Florida 33801 - 5096

Clifford A. Taylor, Esquire

Department of Management Services

4050 Esplanade Way, Suite 1 60D

Tallahassee, Florida 32399 - 0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.