STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of Administrative Hearings, held a formal hearing in this matter on December 22, 1994, in Sarasota, Florida.

APPEARANCES

For Petitioner: Richard C. Reinhart, Esquire

Diana L. Moreland, Esquire REINHART & MORELAND.

538 Old Main Street Sarasota, Florida 34205

For Respondent: Thomas L. Barnhart, Esquire

Brian F. McGrail, Esquire Department of Revenue Office of General Counsel Post Office Box 6668

Tallahassee, Florida 32314-6668

For Intervenor: Robert J. Elkins, Esquire

46 North Washington Boulevard, Suite 29 Sarasota, Florida 34236-5928

STATEMENT OF THE ISSUE

Did the Respondent State of Florida Department of Revenue (Department) act fraudulently, arbitrarily, or dishonestly in awarding the Child Support Enforcement (CSE) Legal Services Contract for Sarasota County, Florida to Steven

1. Johnson, and thereby subvert the competitive bidding process?

   PRELIMINARY STATEMENT

   
   

   In June 1994, the Department advertised a Solicitation of Offers for Legal Service Contract Child Support Enforcement Program for Sarasota County, Florida (solicitation). Five attorneys/law firms submitted offers in response to the solicitation by the specified deadline of July 5, 1994. On September 7, 1994, the Department informed the Petitioner in writing of its intent to award the CSE Legal Services Contract for Sarasota County, Florida to Steven P. Johnson (Johnson), one of the five attorneys/law firms submitting offers in response to the solicitation.

   
   

   On September 7, 1994, the Petitioner filed a written notice of intent to file a formal protest with the Department in accordance with Section 120.53(5), Florida Statutes. Thereafter, on September 19, 1994, the Petitioner filed its formal written notice of protest with the Department. The notice of protest alleged, among other things, that: (a) the award to Johnson would have an impact on the Petitioner's reputation; (b) Johnson was personally notified by an employee of the Department of the solicitation - an improper action - which demonstrated that Johnson was given the inside track on the solicitation by the Department, and indicated that the Department's grading was untrustworthy; (c) Johnson did not meet the requirement of availability for transition contained in Attachment IV, number 7 of the solicitation; (d) Johnson did not have the authority to bind any law firm and therefore, failed to meet the requirement of Attachment IV, number 4 of the solicitation and; (e) some of those responding to the solicitation had in their possession a copy of the point system (Possible Evaluation Criteria) used by the Department in grading the responses to the solicitation that others responding to the solicitation did not have, resulting in an unfair advantage for those offerors having a copy of the Department's Possible Evaluation Criteria. The Petitioner requested a formal administrative hearing in the matter.

   
   

   By letter dated September 27, 1994, the Department referred this matter to the Division of Administrative Hearings (Division) for the assignment of a hearing officer and the conduct of a formal hearing. The request was received by the Division on September 28, 1994, and a hearing was timely scheduled in accordance with the time constraints of Section 120.53(5)(e), Florida Statutes. The parties requested a continuance and waived the time constraints imposed by Section 120.53(5)(e), Florida Statutes. The matter was continued and rescheduled for December 22, 1994. Robert J. Elkins, filed a Motion To Intervene on November 3, 1994, which was granted without opposition.

   
   

   Before the hearing, the parties executed a Pre-Hearing Stipulation and a Supplemental Pre-Hearing Stipulation which, among other things, limited the factual issues to be resolved as follows: (a) did Johnson receive the Possible Evaluation Criteria in the solicitation package sent to him by the Department;

   (b) was Johnson available for transition at least 30 days before the effective date of the contract as required by Attachment IV, number 7 of the solicitation package; (c) did Johnson have malpractice insurance, or did he attach a binder indicating he would have malpractice insurance coverage, as required by the Mandatory Requirement, XVI, F, of the solicitation package and; (d) did Johnson have authority to bind a firm as required by Attachment IV, number 4 of the solicitation package.

   
   

   In support of its written protest, the Petitioner presented the testimony of Diana Lee Moreland, James. E. Boyd, Robert J. Elkins and Sonja Richter.

   Petitioner's exhibits 1 through 8 and 10 were received as evidence. Petitioner's exhibit 9 was rejected. The Petitioner then proffered exhibit 9.

   After reviewing Petitioner's exhibit 9 , I find no basis to reverse my earlier ruling. Petitioner's exhibit 9 is rejected. In opposition to the written protest, the Department presented the testimony of Shirley Holmes, Lynn Hall and Steven Johnson. Department's exhibits 1, 2 and 4 were received as evidence.

   Department's exhibit 3 was rejected. The Intervenor presented the testimony of Leslie Pearson. Intervenor's exhibit 1 was received as evidence.

   
   

   A transcript of the proceeding was filed with the Division on January 30, 1995. The Petitioner and Department timely filed their Proposed Recommended Orders. The Intervenor elected not to file a Proposed Recommended Order. A ruling on each proposed finding of fact submitted by the Petitioner and Department has been made as reflected in an Appendix to the Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

   
   

   1. Effective July 1, 1994, the Department became the agency of the State of Florida responsible for prosecuting Child Support Enforcement actions in the State of Florida.

      
      

   2. In furtherance of this responsibility, the Department, advertised the solicitation in June 1994.

      
      

   3. Petitioner, Intervenor, Brenda Hibbeln, Gary Gassel and Johnson each submitted timely offers in response to the solicitation.

      
      

   4. The Department considered the offers submitted in response to the solicitation by Petitioner, Intervenor, Brenda Hibbeln, Gary Gassel and Johnson as being responsive to the solicitation.

      
      

   5. By letter dated September 7, 1994, the Department advised Petitioner, Intervenor, Brenda Hibbeln and Gary Gassel that the CSE Legal Service Contract had been awarded to Johnson.

      
      

   6. Upon being advised that the CSE Legal Service Contract had been awarded to Johnson, Petitioner filed a written notice of intent to file a formal protest with the Department. Subsequently, the Petitioner filed a formal protest.

      
      

   7. Upon the existing contract for legal services expiring, the Department determined that a need for emergency legal services existed and entered into a contract with Johnson to provide emergency legal services on a temporary basis until this dispute was resolved. The Department advised Johnson of this decision by letter dated October 6, 1994.

      
      

   8. Paragraphs II, XV, XVI and XVII of the solicitation provide as follows:

   
   

   II. Statement of Need

   Through this solicitation for offers to provide legal services, the department seeks to obtain the highest possible standard of legal representation at the lowest possible cost while ensuring free and open competition among prospective offerors.

   * * *

   **Note: 2000 open files/case records will be assigned immediately and adequate storage or filing space must be available.

   * * *

   
   

   1. Instruction for Responding to Solicitation

      * * *

      1. Statement of Work

         
         

         1. Provide a specific and detailed plan which clearly demonstrates your ability to handle the anticipated volume of cases and to keep track of and to perform repetitive legal work. You should include any information which you believe relevant to demonstrating that you are able to handle a substantial number of cases in an efficient

            manner including any automation or special equipment which you will utilize or which you will secure for use under this contract if your

            offer is accepted. A description of your physical plant, its location, present or proposed adjacent square footage and any other information upon which you want the evaluator to rely in assessing your ability to fulfill the contract obligations should be included.

         2. Provide a detailed operational plan and flow chart showing how you will process and keep tract

            of cases from the date of receipt until all required actions are completed. Include the personnel who will be utilized and the anticipated timeframes involved.

            
            

      2. Describe Your Organization

         
         

         1. Provide a description of the attorney's qualifications and experience, indicating their abilities to manage and complete the required services.

         2. Submit a description of the staff who will be providing CSE services. List their qualifications, the number of positions, the percentage of time devoted to HRS contract work and identify those qualifying under F.S. 288.703(3) as a minority. If your business

            has been certified as a Minority Business Enterprise, please attach a copy of the certificate. If your business has not been certified; but has minority ownership, please identify the percentage of minority ownership.

         3. Describe how you and your staff will be made accessible to work with the department's staff, the judiciary, and clients.

1. Mandatory Requirements

   
   

   The following documents, certifications, and the answers to the questions listed Attachment

   V and Attachment VI are mandatory requirements. If one of these requirements are not met, your offer will not be considered further. . . .

   
   

   A. The following certifications must also be completed and/or signed by the authorized representative of your company:

   * * *

   3. The Statement of Authority to Bind Firm which is found in Attachment IV, number 4, must be signed by the firm's authorized representative. This statement certifies that the signee has the authority to bind the

   firm to the terms of this solicitation and the terms of the proposed contract.

   
   

   F. Certification of Malpractice Insurance Coverage.

   The attorney/firm must presently have or indicate by an attached binder that they will have a minimum

   of $100,000.00 single claim and 300,000.00 aggregate lawyers professional liability insurance. If the attorney/firm already has the indicated insurance,

   a copy of the policy must be included with the offer. If the attorney/firm does not have said coverage, a binder for coverage must be attached showing an effective date of at least fifteen days prior to

   the beginning of the contract.

   * * *

   K. The attorney/firm must be available for transition at least 30 days before the effective date of the contract. The statement to this effect is in Attachment IV, number 7.

   
   

2. Evaluation criteria

1. Introduction

   * * *

   The evaluation rating sheet lists evaluation criteria and specific indicators of those criteria used to assess the degree to which the provider's response meets those criteria (See Attachment V).

   
   

   Evaluation criteria will be grouped into the following categories: . .

   Category 1 - Mandatory Requirements Category 2 - Technical Requirements Category 3 - Price

   Category 4 - Personal Interview

   (Optional)

   
   

   Selection of the successful provider will be based on the offer that is determined to be in the best interest of the department, taking into consideration price and the other criteria listed in this solicitation.

2. Category 1 - Mandatory Requirements

   Each offer will be reviewed for responsiveness

   to the mandatory criteria set forth in Attachment

   V. Offers that fail to satisfy all of the criteria

   in this category will not be considered further. . . .

   
   

3. Category 2 - Technical Requirements

This portion of the evaluation will address the capability of the offeror to perform the services outlined in the solicitation focusing on the volume

of work and the terms indicated in the model contract. Specific areas which will be evaluated and the maximum points to be assigned to each are indicated in the evaluation rating sheets which are included in Attachment V. . . .

9. Attachment V, numbers 2, 9 and 14 of the solicitation provide as follows:

CATEGORY 1 - Evaluation of Mandatory Requirements (Fatal Criteria)

FATAL CRITERIA

2. Was the offer signed by an official authorized to bind the offer to the solicitation? Yes/No

* * *

1. Does the attorney/firm presently have, or indicate by attached binder that they will have, a minimum of $100,000.00 single claim/$300,000.00 aggregate lawyers professional liability insurance at least 15 days prior to the contract effective date? Yes/No

   * * *

   14. Will the attorney/firm be available for transition by at least 30 days before the effective date of the contract? Yes/No

   
   

   CATEGORY 2 - Technical Information (100 points)

   
   

   1. Provide a specific and detailed plan which clearly demonstrates the ability to handle the anticipated volume of cases and perform repetitive work. (0-30)

      
      

   2. Time and personnel to be devoted to child support work. (0-15)

      
      

   3. Experience/familiarity in contract related work. (0-30)

      
      

   4. Length of time in practice. (0-5)

      
      

   5. Provide a specific and detailed plan which clearly demonstrates accessibility to and by clients, child support staff/judiciary.

   6. Identify minority ownership and/or employees assigned to perform contract work. (0-5)

   
   

2. The Department answered yes on numbers 2, 9 and 14 above for Johnson's offer. After the initial review of Johnson's offer, including all of the Fatal Criteria, the Department found Johnson's offer to be responsive. The Department then evaluated the Johnson offer as to Technical Requirements and Price - Evaluation Categories 2 and 3 - and determined that the Johnson offer was the lowest and best offer. Johnson's proposed cost for the contract for July 1, 1994 through June 30, 1995, was $163,402.19 whereas Petitioner's and Intervenor's proposed cost for the contract for July 1, 1994 through June 30, 1995, was $192,540.83 the same as total reimbursement based on the cap set by the Department. Each of these amounts would have to adjusted to correspond to the shorter length of the contract period.

   
   

3. Although Johnson was covered under the Professional Liability Insurance Policy issued to the Law Offices of Hernan Castro for cases which he was handling as an employee of Law Offices of Hernan Castro, Johnson was not covered under the Professional Liability Insurance Policy issued to the Law Offices of Hernan Castro for any cases he would be handling on his own in Sarasota County, not as an employee of the Law Offices of Hernan Castro.

   
   

4. Johnson submitted the declaration page of the policy issued to the Law Offices of Hernan Castro carrying a coverage of $100,000/per claim with

   $300,000/aggregate. The policy period was from 12:01 a.m. July 1, 1993 through July 1, 1994. In a note attached to the offer, Johnson explained that the same policy had been extended for an additional period and was in effect at the time of the submission of his offer in response to the solicitation but that a copy of the new declaration had not been received at that time.

   
   

5. Johnson submitted with his offer in response to the solicitation a letter from Hornbeck & Associates, Inc., Full Service Insurance and Bond, signed by Michael A. Hornbeck, which provided as follows:

   
   

   Sonja L. Richter

   Child Support Enforcement 2150 Collier Avenue, Suite H Fort Myers, FL 33901-8129

   
   

   RE: STEVEN P. JOHNSON

   814 Dixon Blvd, Suite 22

   Cocoa, Florida 32922 Dear Ms. Richter:

   This is to advise that our firm is working

   on a Professional Liability Package for Steven

   P. Johnson. Providing the contract is awarded, we will issue the necessary certificate.

   
   

   Sincerely,

   
   

   s/Michael A. Hornbeck Michael A. Hornbeck

6. On September 28, 1994, Great American Insurance Companies - the same insurance company that issued the liability insurance policy to the Law Offices of Hernan Castro that covered Johnson for his work with the Law Offices of Hernan Castro - issued to the Law Offices of Steven P. Johnson an insurance policy for legal professional liability coverage of $100,000/per claim with

   $300,000/aggregate. The policy period was from 12:01 a.m. September 15, 1994, through September 15, 1995.

   
   

7. In the insurance industry, a binder is a temporary insurance contract, written or oral, with an effective date and an expiration date, that is subject to the conditions set forth in the binder, designed to show insurance coverage before the actual issuance or receipt of the policy. (See testimony of James E. Boyd, Petitioner's exhibit 5 and Section 627.420, Florida Statutes.) The letter from Michael A. Hornbeck does not constitute an insurance binder. However, the evidence indicated that Johnson was insurable.

   
   

8. There was no evidence that Johnson's failure to include an insurance binder or proof of insurance in his own right with his offer in response to the solicitation placed Johnson in any competitive advantage, economic or otherwise. Furthermore, there was no evidence that the Department acted fraudulently, arbitrarily or dishonestly in accepting the information submitted by Johnson as sufficient to meet the requirement of Paragraph XVI, F of the solicitation and number 9 of the Fatal Criteria of Attachment V or that the process was subverted as a result of the Department's action.

   
   

9. Johnson was admitted to practice law in the State of Florida on July 23, 1987 and has continuously practice law in the State of Florida since his admission. Johnson began handling child support enforcement case in July 1987, for Law Offices of Hernan Castro, In July 1988, Johnson took a position with Hillsborough County representing the Department of Health and Rehabilitative Services (HRS) through the office of Child Support Enforcement for Hillsborough County. In October 1990, Johnson was again employed by the Law Offices Hernan Castro in Brevard County to handle Child Support Enforcement cases representing HRS in Brevard, Oseceola and Seminole county. At times material to this proceeding, Johnson was not under an employment contract with the Law Offices Hernan Castro and could terminate his employment with the Law Offices of Hernan Castro at any time without notice. When Johnson submitted his offer in response to the solicitation, he did not have his own law office. However, there was nothing to prevent Johnson from opening his own law office.

   
   

10. Johnson left employment of the Law Offices of Hernan Castro in October, 1994, and opened his own law offices so that he could begin representing the Department in Sarasota County prosecuting child support enforcement cases under the emergency temporary contract with the Department.

    
    

11. As part of his offer in response to the solicitation, Johnson signed the certification Statement of Authority To Bind Firm set out in number 4, Attachment IV, Required Certifications, as follows:

    
    

    I, Steven P. Johnson, hereby certify that I the authority to bind Law Offices of Steven P. Johnson firm upon whose behalf this offer is made to the terms of this solicitation and the terms and conditions of the proposed contract in Attachment I.

    s/Steven P. Johnson 7-4-94

    Authorized Representative Date

12. The evidence shows that Johnson clearly had the authority at the time of his submission to bind the Law Offices of Steven P. Johnson as set out in the Statement of Authority to Bind Firm above.

    
    

13. As part of his offer in response to the solicitation, Johnson signed the certification of Availability For Transition as set out in number 7, Attachment IV, Required Certifications, as follows:

    
    

    I, Steven P. Johnson, certify that the Attorney/ Firm will be available for transition at least

    30 days before the effective date of the contract.

    
    

    s/Steven P. Johnson 7-9-94

    Authorized Representative Date

    
    

14. The solicitation indicated that the Department anticipated the contract to begin on October 1, 1994.

    
    

15. There was no evidence to show that at the time Johnson signed the certification of Availability For Transition that his law office would not be available for transition at least 30 days before the effective date of the contract, notwithstanding that Johnson did not have office space rented, office furniture purchased or any employees, other than his wife, who were obligated to assist him in fulfilling the contract. However, Johnson did have the assurance of his former secretary that she would work for him if he was awarded the contract.

    
    

16. It was not until the middle of September 1994, that Johnson rented office space, purchased furniture, including "tote" boxes for the case files, and office stationery.

    
    

17. The evidence establishes that Johnson was available for transition at least 30 days before the effective date of the contract.

    
    

18. In evaluating the technical information furnished by the offerors the Department used what is titled "Possible Evaluation Criteria" which covers the six areas set out in Category 2 - Technical Information of Attachment V. Petitioner and Intervenor contend that the Possible Evaluation Criteria sets out in more detail what technical information the Department is seeking in order to evaluate each offer. Therefore, the failure of the Department to include the Possible Evaluation Criteria with the solicitation package is unfair to the offerors. However, Paragraph XV(C) and (D) of the Solicitation above details very clearly what technical information the Department is seeking about the offers and Category 2 of Attachment V clearly provides weight the Department intends to place on that technical information.

    
    

19. Although it may have been more beneficial to the offerors and the Department for the Possible Evaluation Criteria to have been included in the solicitation package, the evidence fails to establish that the offerors were treated unfairly because the Department chose not to include the Possible Evaluation Criteria in the solicitation package. Likewise, the evidence fails to establish that the Department acted fraudulently, arbitrarily, or dishonestly in not including the Possible Evaluation Criteria in the solicitation package or that the process was subverted by the action of the Department.

20. The Petitioner and Intervenor contend that the Department, either consciously or inadvertently, provided Johnson with a copy of the Possible Evaluation Criteria in the solicitation package furnished to Johnson which placed all other offers, including the Petitioner and Intervenor, at a competitive disadvantage.

    
    

21. Neither Reinhart & Moreland, Robert J. Elkins, Brenda Hibbeln nor Gary Gassel received the Possible Evaluation Criteria in their competitive negotiation package issued by the Department.

    
    

22. After careful consideration of all the evidence in the record, the more credible evidence establishes that Johnson did not receive a copy of the Possible Evaluation Criteria before submission of his offer in response to the solicitation to the Department.

    
    

23. The Petitioner and Intervenor contend that since they had previously submitted offers and held a contract with the Department's predecessor, HRS, the staff being virtually the same, that the Department should have considered previously obtained information without the Petitioner or Intervenor having to supply such information in their offers in response to the solicitation. There is no evidence to support this contention. In fact, Paragraph XV, C and D specifically provides to the contrary.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

25. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation

    v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 2d DCA 1981). To meet this burden the Petitioner or Intervenor must establish facts upon which the allegations are based by a preponderance of the evidence. The Petitioner and Intervenor have failed to meet their burden in this regard.

    
    

26. Section 287.057(1)(2) and (3)(f), Florida Statutes, provide in pertinent part as follows:

    
    

    1. Unless otherwise authorized by law, all contracts for the purchase of commodities or contractual services in excess of the threshold amount provided in s.287.017 for CATEGORY TWO shall be awarded by competitive sealed bidding.

       . . .

    2. When an agency determines in writing that the use of competitive sealed bidding is not practicable, commodities or contractual services shall be procured by competitive sealed proposals.

       . . .

    3. When the purchase price of commodities or contractual services exceeds the threshold amount provided in s.287.017 for CATEGORY TWO, no purchase of commodities or contractual services may be made without receiving competitive sealed bids or competitive sealed proposals unless:

       * * *

       (f) The following contractual services are not subject to the competitive sealed bid requirements of this section:

       * * *

       5. Legal services, including attorney, paralegal, expert witness, appraisal, or mediator.

       
       

27. The Department elected to secure the necessary contractual services it required by competitive sealed proposals and proceeded to advertise for proposals in June 1994. The Department's request for proposals (solicitation) met all of the requirements set out in the definition of "Request for proposals" in Section 287.012(16), Florida Statutes, including evaluation criteria, notwithstanding Petitioner's contention to the contrary.

    
    

28. Section 287.012(17) and (18), Florida Statutes, provide as follows:

    
    

    1. "Responsive bid" or "responsive proposal" means a bid or proposal submitted by a responsive, and responsible or qualified, bidder or offeror which conforms in all material respects to the invitation to bid or request for proposals.

    2. "Responsive bidder" or "responsive offeror" means a person who has submitted a bid or proposal which conforms in all material respects to the invitation to bid or request for proposals.

    
    

29. After the offers in response to the solicitation were received, the Department reviewed the offers and determined that each offer (proposal) was responsive in that each conformed in all material respects to the solicitation (request for proposal) and that each offeror was a responsive offeror in that each had submitted a responsive proposal. However, the Petitioner contends that Johnson's proposal failed to conform in all material respects to the request for proposals in that it did not meet all the mandatory requirements of the proposal which were designated as fatal criteria by the Department which had to be met in order for there to be further consideration of the proposal by the Department.

    
    

30. The statutory language is that the proposal "conforms in all material respects to the. . .request for proposals." Apparently, the Department made the determination that Johnson's proposal (offer) conformed in all material respects to the proposal, notwithstanding the lack of an insurance binder or proof of insurance in effect at the time the proposal was submitted being attached to the proposal. The Department contends that Johnson's proposal conformed in all material respects in that he was insurable which was later proven by Johnson being issued a professional liability insurance policy with appropriate coverage effective September 15, 1994, some 15 days prior to the contract date as required by the Fatal Criteria. The record shows that the other fatal criteria in contention had been met at the time Johnson submitted his proposal.

    
    

31. There is a strong public policy in favor of awarding contracts to the low bidder, and an equally strong public policy against disqualifying the low bidder for technical deficiencies which do not confer an economic advantage on one bidder over another. An agency is granted wide discretion in this regard. Liberty County v. Baxter's Asphalt & Concrete, 421 So. 2d 505 (Fla. 1982); Intercontinental Properties v. DHRS, 606 So.2d 380 (1st DCA Fla. 1992). In the instant case Johnson's offer was the lowest and his failure to attach an insurance binder or proof of insurance already obtained to the offer does not

meet the test of being a material deviation as set out in Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So.2d 1190 (2nd DCA Fla. l978), in that there was no competitive advantage or benefit to Johnson, economic or otherwise, not enjoyed by the other offerors. The facts of this case do not support a finding that the Department acted arbitrarily, illegally or dishonestly in determining Johnson's offer to be responsive and awarding the CSE Legal Service Contract to Johnson.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order dismissing the Petitioner's and Intervenor's petitions and awarding the CSE Legal Service Contract for Sarasota County to Steven P. Johnson.

RECOMMENDED this day 13th of March, 1995, at Tallahassee, Florida.

WILLIAM R. CAVE

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 13th day of March, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5404BID

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 Petitioner and Department in this case.

Petitioner's Proposed Findings of Fact.

1. Each of the proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 6(2); 7-8(8); 10(8); 11(3); 12-13(9); 14(11); 16(9); 17(17); 18(9); 19(23,24); 22(8,26); and 30(29).

2. Proposed findings of fact 2 - 5, 9, 15, 20, 21, 23, 26, 27 29, 32 and

39 are neither material nor relevant or are unnecessary.

1. Proposed findings of fact 24, 25 and 28 are not supported by the evidence in the record.

2. Proposed findings of fact 31, 33 - 38 concern the conflict in testimony of witnesses on whether Johnson received the "Possible Evaluation Criteria" and whether Johnson was "Available for Transition". That was resolved in Findings of Fact 23, 24, 25, and 30.

Department's Proposed Findings of Fact.

1. Proposed finding of fact 1 is covered in Finding of Fact 1 and is also covered in the Preliminary Statement.

2. Proposed findings of fact 2 - 8 are covered in the Preliminary Statement.

3. Proposed finding of fact 9 is adopted in substance as modified in Findings of Fact 23, 24 and 25.

4. Proposed findings of fact 10 - 13 are adopted in substance as modified in Findings of Fact 21 - 25.

1. Proposed finding of fact 14 is adopted in substance as modified in Findings of Fact 23 - 25.

2. Proposed finding of fact 15 is adopted in substance as modified in Finding of Fact 21.

3. Proposed finding of fact 16 is adopted in substance as modified in Findings of Fact 17 -20.

4. Proposed findings of fact 17 is adopted in substance as modified in Findings of Fact 30.

5. There is no proposed finding of 18.

6. Proposed findings of fact 19 - 22 are rejected as being argument going to the weight of testimony.

7. Proposed findings of fact 23 - 25 are recitation of testimony and due not constitute a finding of fact.

8. Proposed findings of fact 26 - 40, and 43 concern the conflict in testimony of witnesses on whether Johnson received the Possible Evaluation Criteria which was resolved in Finding of Fact 30.

9. There is no findings of fact 41 and 42.

10. Proposed findings of fact 44 - 46 are rejected as argument going to the weight of evidence.

11. Proposed findings of fact 47 and 51 are neither material nor relevant.

12. Proposed finding of fact 48 is rejected as being argument. See Prehearing Stipulation and Supplemental Prehearing Stipulation.

13. Proposed findings of fact 49 and 50 are adopted in substance as modified in Findings of Fact 11 - 15.

14. Proposed finding of fact 52 is rejected as argument.

15. Proposed finding of fact 53 is a recitation of testimony but see Finding of Fact 31.

16. Proposed findings of fact 54, 59 and 60 are adopted in substance as modified in Findings of Fact 8 and 31.

17. Proposed findings of fact 55 - 58 are adopted in substance as modified in Findings of Fact 8 and 30.

The Intervenor elected not file any proposed findings of fact.

COPIES FURNISHED:

Richard C. Reinhart, Esquire Diana L. Moreland, Esquire REINHART & MORELAND

538 Old Main Street Sarasota, Florida 34305

Thomas L. Barnhart, Esquire Brian F. McGrail, Esquire Department of Revenue Office of General Counsel Post Office Box 6668

Tallahassee, Florida 32314-6668

Robert J. Elkins, Esquire

46 N. Washington Blvd., Suite 29 Sarasota, Florida 34236-5928

Linda Lettera, Esquire General Counsel Department of Revenue

204 Carlton Building Tallahassee, Florida 32399-0100

Larry Fuchs Executive Director

104 Carlton Building Tallahassee, Florida 32399-0100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-005404BID

Orders for Case No: 94-005404BID