Findings Of Fact Dr. David B. Walrath is and was at the time of the events at issue a licensed veterinarian holding license number 001374 issued by the Board. DMSO is the common name for Diamethylsulfoxide. Dr. David B. Walrath caused various advertisements to be placed in the South Dade News Leader, a newspaper, to include one which was the subject of the Administrative Complaint which read: DMSO 16 ounce-$38.00 248-6536 The telephone number listed in the advertisement was that of English Plaza Animal Hospital, the professional address of the Respondent. DMSO was available for sale at English Plaza Animal Hospital at the price advertised. The data in the advertisement was true. No evidence was presented on the nature of DMSO, its uses, or whether it was approved for medical use on humans. Dr. Walrath did state the manufacturer represented DMSO to be a cure for animals but did not indicate what ailments it cured.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Administrative Complaint against Dr. David B. Walrath be DISMISSED. DONE and ,ORDERED this 21st day of September, 1982, in Tallahassee, Florida. STEPHEN F. DEAN, 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 21st day of September, 1982. COPIES FURNISHED: James H. Gillis, esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shornstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles A. Hayes, Esquire 922 North Krome Avenue Homestead, Florida 33030 Jane Raker, Executive Director Board of Veterinary Medicine 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact On August 24, 1981, Famous Brands Television and Appliances, Inc., entered into a Consent Order with the State Attorney for Palm Beach County, Florida, whereby Famous Brands, together with its principals and officers and agents, agreed to cease and desist from utilizing "bait and switch" practices or be held in contempt of court. At all times material to that litigation, Respondent Bill Lacek was the president of Famous Brands Television and Appliances, Inc. Famous Brands became bankrupt. Lacek knew that his credibility had been affected by his management of Famous Brands. Therefore, when he opened V.T.S. Video, Inc., a similar business, he placed the corporation in the name of his sister Rose Richard. Although ostensibly the president and sole director of V.T.S. Video, Rose Richard's duties were limited to those of a bookkeeper/office manager, the same duties which she had when she worked for her brother at Famous Brands. V.T.S. Video was in the business of advertising and offering for sale video, television and stereo products to the general public. The business was located at 25 North Military Trail, West Palm Beach, Florida. Respondent Bill Lacek formulated, controlled, and directed the acts and practices at V.T.S. Video. He was personally responsible for the purchasing, advertising, marketing, and promoting of the products sold by V.T.S. Video. He personally wrote the advertising, established the sales commission structure for the employees of V.T.S. Video, and attended sales meetings. Lacek solicited customers through newspaper advertising, including advertisements in The Palm Beach Post. Lacek's advertisements included ads for Sony and Hitachi televisions and video cameras. Respondent Lacek's advertisements were not bona fide offers to sell the advertised products. When customers appeared at V.T.S. Video to purchase the advertised Sony or Hitachi products, they were told by V.T.S. Video employees that the Sony or Hitachi products were not available or that the only product available was a "floor model," i.e., a model which has been used at the business for demonstration purposes and which frequently has been damaged and is, therefore, an unattractive product for purchase. Additionally, Lacek and the employees of V.T.S. Video would disparage the advertised products and "switch" the shopper to a different brand, the item which Lacek intended to sell instead of the advertised product. To assure that his salesmen would follow his established "switch and bait" techniques, Lacek set the sales commission structure so that no commission was paid to a salesman who sold the advertised product (if one were available) rather than the product to which the customer was to be switched. Further, the advertisements written by Lacek did not disclose the fact that the advertised item was a floor model. Hopper Electronics in Miami purchases from the factory rebuilt or refurbished products which it then sells to wholesalers. A rebuilt or refurbished product is a product which has been returned to the factory as defective by a customer or a distributor. The factory repairs the item and then re-boxes it for sale. In other words, a rebuilt or refurbished ("RB") product is a used product. Lacek purchased from Hopper on behalf of V.T.S. Video between 3,000 and 5,000 Emerson "RB" products between approximately late 1986 and late 1987. All of the Emerson RB units purchased from Hopper Electronics carried a label saying "RB" on the back of the unit itself and a label saying "RB" on the box containing the unit. Lacek paid Hopper Electronics a total of $780,000 for Emerson RB units during that time period. Although Lacek knew that the RB units were used and not new products, his newspaper ads for those units did not disclose that the products were used or that they were RB products. The Emerson televisions and VCRs purchased from Hopper were sold to the public as new products. Lacek instructed his employees not to disclose that the Emersons were not new products. If a customer questioned the "RB" label appearing on the back of the unit or on the box, the customer was told that the product had been re-boxed or that the product was from Riviera Beach. Respondent Bill Lacek knew that his sales practices were deceptive and that they constituted unfair trade practices, even prior to the institution of this proceeding, since they were the same practices that he was enjoined from utilizing when he signed the Consent Order on behalf of Famous Brands Television and Appliances, Inc., in 1981. Respondent Lacek's practices in the operation of V.T.S. Video have injured the public. Two Assistant Attorneys General represented Petitioner at the final hearing in this cause. Attached to Petitioner's proposed recommended order are affidavits from those attorneys stating that they have spent 220 hours combined in the "investigation and resolution" of this matter. Petitioner has failed to submit a cost affidavit and has therefore waived its statutory right to recover reasonable costs in this action. The Agreed Final Order to Cease and Desist entered into by Petitioner and Respondents V.T.S Video, Inc., and Rose Richard the day before the final hearing in this cause provides that Respondent V.T.S. Video, Inc., will pay to Petitioner the sum of $10,000 in civil penalties plus the sum of $15,000 for attorney's fees in this action.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered: Finding Respondent Bill Lacek guilty of the allegations in the Complaint filed against him; Ordering Respondent Bill Lacek to cease and desist from all violations of Chapter 501, Part II, Florida Statutes, and of Chapter 2-9, Florida Administrative Code; Assessing against Respondent Bill Lacek a civil penalty in the amount of $1,500,000; and Denying Petitioner's claim for reimbursement of its attorney's fees and costs against Respondent Bill Lacek. DONE and ENTERED this ,7th day of March, 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 March, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-0505 Petitioner's proposed findings of fact numbered 5, 7-15, and 17 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 6 has been rejected as not constituting a finding of fact. Petitioner's proposed finding of fact numbered 16 has been rejected as not being supported by the record in this cause. COPIES FURNISHED: Rhonda G. Lapin, Esquire Andy Itzkovits, Esquire Assistant Attorneys General Suite N921 401 N.W. Second Avenue Miami, Florida 32128 James S. Telepman, Esquire 340 Royal Palm Way Post Office Box 2525 Palm Beach, Florida 33480 (Last known address for Respondent Bill Lacek) Honorable Robert A. Butterworth Attorney General The Capitol Tallahassee, Florida 32399-1050 =================================================================
The Issue Whether respondents unlawfully (1) discriminated against petitioner on the basis of her sex, and (2) retaliated against her for opposing sexually discriminatory practices.
Findings Of Fact Petitioner's discrimination claim is two-fold. First, she contends that respondent sexually discriminated against her by paying her less salary and excluding her from participating in the managerial bonus plan and weekly managerial staff meetings when male employees, performing equal or comparable work, were paid more and participated in the bonus plan and staff meetings. Second, she contends that respondent retaliated against her--by firing her-- because she complained of its sexually discriminatory policies. As alleged, both unlawful employment practices occurred between January, 1978, and November, 1979, during which time petitioner was respondent's Personnel Manager, both in title and in fact. Petitioner, now 47, graduated from the University of Michigan in 1958 with a Bachelor of Arts Degree. She majored in journalism, minored in psychology and sociology, attended on scholarship, and maintained a B average. After graduation, she became a policewoman with the Detroit Police Department, where she counseled and referred juvenile offenders. She then retired and raised her children during the next 10 years, after which she obtained a real estate license and sold residential real estate. On March 4, 1974, she was hired by the Detroit Free Press as an "Executive Secretary and Administrative Assistant to the Personnel Director." At that time she had no formal training or prior employment in personnel. The Detroit Free Press and respondent Bradenton Herald, Inc., both newspapers in the Knight-Ridder Newspapers, Inc. group, are separate and distinct entities. There is no evidence of record that employees of Knight-Ridder Newspapers, Inc. directed or participated in any of the alleged unlawful employment practices complained of by petitioner. In September, 1975, after one and one-half years with the Detroit Free Press, petitioner wrote respondent, (Bradenton Herald, Inc.) about possible future openings in its Personnel Department, stating that she would like to move to the Gulf Coast area of Florida within the next year. She stated that she wished to relocate because she had two dependent school age children and wished to live near her parents in Clearwater, Florida rather than contending with the bad weather and drawbacks that she was experiencing in Detroit. (P-33) She also indicated that she did not plan to start "job hunting" until early the next year. She described her current position, stating that she had responsibility for handling the day-to-day personnel operation of the Detroit Free Press, which had 2,000 employees. She listed her duties as testing and supervising employees; maintaining personnel files; handling stock purchase plans, unemployment claims, interviewing; handling correspondence and secretarial work for the personnel section; writing letters to all employees; informing labor and corporate officials on a regular basis of all personnel changes; maintaining accurate address information on all employees; preparing monthly personnel reports, quarterly employee reports, monthly reports to the Knight-Ridder Newspaper headquarters in Miami, Florida, and quarterly reports to the National Alliance of Businessmen regarding the hiring of Vietnam veterans and the disadvantaged; verifying employment, credit and employee references; distributing performance appraisal reports including the compilation of delinquency lists and records; researching personnel files and making appropriate responses; handing out applications to prospective employees and answering employee questions regarding insurance, stock purchase and other employee benefits; answering the telephone and handling all calls; scheduling the conference room; maintaining contact with functional and department heads as well as employees at all levels of the newspaper; and, making extensive contact with the general public, as well as most applicants for positions of employment. (P-33) In August, 1975, petitioner's work at the Detroit Free Press was becoming increasingly clerical and a source of frustration to her. She felt clerical work no longer challenged her. Her supervisor agreed with her assessment, observing that she was "becoming super at the [personnel] testing situation." He discerned no way out of her dilemma but recommended that a raise in her salary be considered "because of her ability and work." (P-33) At the time of her job inquiry, respondent was a small newspaper, acquired in 1973 by Knight-Ridder Newspapers, Inc., and in the process of organizing various departments and functions. It had no openings in Personnel but, in October, 1975, offered her a position as secretary to William LaMee, the Publisher. She rejected the job offer because, as she explained, her training had advanced to the point where she believed she could handle a personnel management position. Subsequently, in March, 1976, respondent offered and petitioner accepted a position as "Personnel Assistant" to Byron Callahan, both Personnel Director and Promotion Manager at the Bradenton newspaper. Petitioner replaced Doris Hiscox, the former Personnel Assistant. At that time, the paper had no Business Manager. II. Petitioner began work at her new job in April, 1976. Respondent paid her travel and moving expenses from Detroit, Michigan to Bradenton, Florida, which indicates that it perceived her as being more than a clerical employee. It was respondent's practice to pay travel and moving expenses of managerial and professional employees. Petitioner performed the functions of the newly created Personnel Section, functions formerly handled by the Accounting Department. Byron Callahan, the new Promotions Personnel Director, was responsible for these functions, in addition to various promotional or public relations activities of the newspaper. These included such things as preparing the newspaper's Manatee County Fair Booth; establishing a safety committee; preparing special section promotions; running newsroom personnel promotions; handling promotions for the DeSoto Celebration; handling a special promotion performance of "Up With People"; preparing a "supervisory manual"; negotiating for the acquisition of equipment and reduction of service costs; becoming involved with minority organizations and community action groups; auditing and reporting hiring and promotion patterns to assure compatibility with the affirmative action program; conducting career counseling for minority employees; implementing training programs; initiating drug awareness programs; handling United Way representation, including "loaned executive" program; initiating special promotion publications; implementing radio advertisements in the newspaper; establishing a speakers' bureau; establishing public tours through the newspaper; reducing building maintenance staff; procuring estimates for demolition of one of respondent's properties; completing the maintenance and restriping of the employee's parking lot; and initiating training of all personnel concerning Occupational Safety and Health Act safety programs. (R-4 through R-7) Within a month after petitioner's arrival at her new job, Mr. Callahan was fired and replaced by Donald Heath, who was hired as the new Business Manager. His responsibilities included the Advertising Department as well as Personnel and Promotions, the two areas for which Mr. Callahan had been responsible. Although petitioner's functions remained relatively unchanged, her responsibilities as the Personnel Assistant increased as Mr. Heath--who had no personnel experience--relied on her to carry out the newspaper's personnel functions. Unlike Mr. Callahan, he did not assist in performing these functions. After three months at her new job, petitioner wrote the Personnel Manager of the Detroit Free Press, asserting that she was fully and completely responsible for personnel functions at the Bradenton newspaper. During her first five months at the newspaper, she was happy with her work and, by all reports, performing her duties well. She had received two pay increases and was then earning $200.00 per week. The quantity and pace of her work, however, began to trouble her. She was almost single-handedly performing, with some part-time clerical assistance, all of the personnel work for the newspaper. Yet she did not hold the title of Personnel Manager. In January, 1977, she wrote the Detroit Free Press asking to be considered for its Personnel Manager position, should it become available. In September, 1977, when the position became available, she applied to he the personnel Manager of the Detroit newspaper, stating that she was ready to move into a personnel management position on a large metro paper. She wrote that she wanted to move back to Detroit, because of, among other things, personal family reasons. After receiving no response, she renewed her request in October, 1977, and enclosed another resume. (P-33) On January 10, 1978, petitioner was promoted, both in title and fact, to the position of Personnel Manager by William Appleby, respondent's then General Manager. (She had, in fact, been performing the duties of a personnel manager for almost two years.) As Personnel Manager, her duties required her to: Interview, test, and recruit prospective job applicants; Pre-screen all applications and resumes received from job applicants; Interpret prospective job applicants' test scores for department heads, General Manager and Publisher. Test management applicants for employment. Test applicants for positions at other Knight- Ridder Newspapers, at the request of those papers; Administer and prepare all unemployment, workers compensation, OSHA (Occupational Safety and Health Act) and EEO (Equal Employment Opportunity) reports; Represent the newspaper at unemployment hearings. Supervise the switchboard employees and the operation of the switchboard; Supervise the in-house print shop, including approval of all in-house printing orders. Write, supervise and edit the employee handbook; Maintain the newspaper's personnel records in "KRIS," Knight-Ridder's computerized central data bank; Set up periodic performance evaluation and salary review programs for all employees; Prepare regular quarterly reports to the Publisher regarding activities of the Personnel Department; Write regular memoranda to employees regarding personnel matters of interest; Assist General Manager and Controller in setting up Personnel Department budget; Write, edit and produce the monthly employee newsletter, Headliners; Write, employment ads for the newspaper; Devise a new job application for the newspaper; Represent the newspaper at Knight-Kidder Personnel Directors' meetings in Miami. Attend management training seminars; Become a member of NPRA - Newspaper Personnel Relations Association and SPA - Sarasota Personnel Association. She was also responsible for employee of the month and year programs, employee service awards, press releases on managerial appointments, employee tours and orientation programs, employee bulletin board, employee Christmas luncheon and employee open house. She also supervised the print shop, which was operated by one person. She had no authority to hire or fire him, but--within three months of her employment--had cleared up a workload backlog of several months and had the shop running smoothly. She approved all printing orders. She also supervised the switchboard, which had one full-time and one part-time employee. They sometimes helped her type and score test results. (P-33) The secretary to the Publisher and General Manager also provided petitioner with 15 hours per week of clerical assistance and maintained all personnel records. This secretary also helped petitioner with basic interviewing and correspondence; answering inquiries concerning employment positions; preparing ads for positions of employment; administering of tests; and processing of insurance claims. As in the past, petitioner was expected to, and did, perform many of the clerical duties associated with Personnel. The Publisher and General Manager expected that petitioner would initiate training and employee counseling programs in addition to performing her other duties, although they made no specific request for such programs. Because of the rapid turnover of employees, and her lack of adequate clerical and administrative assistance, she was unable to initiate these programs although she did some informal counseling of employees. As the newspaper's new Personnel Manager, one of her duties was to edit and re-write the Employee Handbook. She organized and substantially revised it, and was praised for her accomplishment by the Vice-President for Personnel at Knight-Ridder: "It is a very vast improvement over what you [respondent Bradenton Herald, Inc.] had in the past and better than most of our other companies." (P-33) She also programmed required personnel statistical information in the newspaper's new computer system. In regard to her other duties, she acknowledges that the training of the switchboard operators was performed by the telephone company and that she handled only three contested unemployment claims and no worker's compensation hearings. During the last three months of her employment at the newspaper, she assumed responsibility for preparing the monthly newsletter, which she admits was a professional, not a managerial, function. She had no dealings with employee unions since there were no unions at the Bradenton newspaper. During the time petitioner was Personnel Manager, respondent published an internal organizational chart indicating that six employees reported to the General Manager: Personnel Manager Promotion Manager Advertising Director Circulation Director Production Manager Controller. Petitioner contends that her functions, duties, and responsibilities were comparable to or equal to those of the Advertising Director, Circulation Director, Production Manager and Classified Manager, who reported to the Advertising Director. These positions were filled by males. Unlike petitioner, these four male employees participated in the managerial compensation bonus plan and weekly managerial staff meetings. They also were paid more than petitioner. Her predecessor, Mr. Callahan, had participated in the managerial bonus plan and weekly managerial staff meetings. Of six positions reporting to the General Manager, two (Personnel Manager and Promotion Manager) were filled by female employees. Neither participated in the bonus plan or weekly managerial staff meetings. Contrary to petitioner's contention, the four employees to which she compares herself had greater responsibilities than she had, and a higher level of skill and effort were required of them. The four positions were not equal, or virtually equal, or even comparable to that of the Personnel Manager, which required less skill and effort, and had less responsibility. The only significant similarity among these positions was that most reported directly to the General Manager. The real and substantial differences between them, however, far outweigh this similarity. The major functions of the newspaper were in the advertising, production, circulation and accounting department. These were the "on-line" departments, in contrast to an administrative support department, such as Personnel. These departments exercised substantially more responsibility for the operation of the newspaper than did the Personnel Department. The most important departmental head (excluding the Publisher/President and General Manager) was the Advertising Director. The functions of the Advertising Director included establishment of revenue goals, budgets and adjustments to budgets; management of personnel and internal organizations; preparation and implementation of sales strategy and marketing practices; establishment of rates for advertising; and coordination of special advertising projects. The Advertising Director accounted for 70-80 percent of the total revenue of the newspaper, which approached twelve million dollars annually. He was directly accountable for a staff of approximately forty persons, whom he had sole authority to hire and fire. He was responsible for his staff's training, coordination, and development, and the expenditure of budgeted funds, including the implementation and constant adjustment of the budget throughout the year. Within the Advertising Department, three lower level management personnel reported to the Advertising Director: the Retail Ad Manager, who was accountable for approximately 80 percent of the revenue generated within that department; the Classified Ad Manager, who was responsible for approximately 20 percent of the revenue, and the National Advertising Manager. These managers were interviewed and hired by the Advertising Director; petitioner did not interview them before they were hired. The Retail Ad Manager was responsible for special sections, real estate ads and television ads. He had a sales staff of eight persons. His duties included preparing training programs, advertising booklets and brochures, and recommending purchases and redesign of equipment. The Classified Ad Manager was responsible for the hiring, firing, training and performance of the ten people on his staff. The Advertising Department trained its staff without assistance from the personnel section. Petitioner's successor, aided by a newly hired second employee in Personnel, took over these functions, including recruitment, interviews, screening, scheduling and training. After the departure of petitioner's immediate successor, these functions continued to be carried out with only one individual in the Personnel Section, Donna Campbell. The next major department of the newspaper was the Circulation Department, which was responsible for 20 percent to 30 percent (approximately $3 million) of the total revenue of the newspaper. This department had the largest departmental staff and distributed papers to almost 20,000 customers. It employed district managers, who were responsible for over 60 newspaper carriers. The Circulation Manager had direct responsibility and authority for the hiring and firing of his employees, the transportation and delivery of the newspapers, and the coordination of all circulation and collection functions, including sales promotions. Budgeting and adjustments to the budget was required throughout the year in coordination with the Advertising Director, and the Controller. The Production Director headed the third major department of the newspaper and was responsible for 50 employees in five operational departments: composing, camera, plate making, press and pressroom. Each department had a supervisor and two had assistant supervisors or foremen. For example, the Supervisor of the Pressroom had responsibility for ordering supplies and supervising the press operators. The Mail Room Foreman supervised 15-20 employees, whose responsibilities included the bundling of newspapers for dissemination through circulation. The Production Director was responsible for the printing of the newspaper, the training of his staff, and the preparation of his department budget. The annual budget for this department was $1.5 million, which included purchasing and maintaining equipment. He was also responsible for ordering and maintaining adequate inventory and supplies, including the purchasing of newsprint. The value of the inventory exceeded $1 million. His operational decisions were not subject to the prior approval of the Publisher or General Manager. The Controller was the fourth major operational department. He was the chief financial officer and responsible for the fiscal operation of the newspaper. He supervised a staff of approximately 15 people, including a Credit Manager, who supervised two employees, and an Accounting Manager, who supervised fifteen employees. The annual accounts receivable for the newspaper approached $8 million. He monitored the other three departments to ensure they remained within their budgets. In contrast, petitioner's duties as Personnel Manager can only be described as administrative or clerical in nature. One expert witness, who testified on her behalf, acknowledged that the personnel department in a newspaper the size of respondent's could be handled by a clerical staff rather than a Personnel Manager. Her supervisory and budgeting responsibilities were limited and circumscribed. She supervised one full time switchboard operator and one print-shop employee, whom she could neither hire nor fire. Her main role was to provide administrative support to the operational "on-line" departments of the newspaper. Her pay was within the range of, or even exceeded, the pay of male employees holding similar mid-management positions, such as Mail Room Supervisor, National Co-op Manager, Home Delivery Manager, Single Copy Manager, Credit Manager and Building Maintenance Supervisor. Petitioner was ineligible to participate in the managerial bonus compensation program, which was limited to department heads who exercised substantially greater responsibilities than she. Many managerial positions, with substantially greater responsibilities than those of the Personnel Manager, were also ineligible. These included the Pressroom Foreman, Composing Room Foreman, District Managers, Sub-editors, Accounting Manager and Credit Manager. In the newspaper industry, executive or management bonus programs are not normally made available to Personnel Managers. Moreover, it is a generally accepted practice in the industry to pay more compensation to the heads of production, editorial, advertising, and circulation than to the head of personnel. This is because the former are generally regarded as exercising greater responsibilities. The basis for establishing the relative importance of the respective managers was neither by their title or position on the newspaper's organizational chart, nor the rank of the position to whom they reported. For example, the Building Superintendent reported to the General Manager, supervised employees and had authority to expend funds without prior approval. But he was not equal to the Advertising Director in responsibility or managerial importance. The organizational chart merely depicted the various sections of the newspaper and to whom these sections were accountable. During the period of petitioner's employment as Personnel Manager, she was excluded from weekly staff meetings and the annual Christmas party, which was primarily for the newspapers' customers. Her exclusion was consistent with the newspaper's policy to exclude mid-management personnel, whether male or female. The weekly staff meetings were intended to include only managers having primary responsibility for "on-line" functions of the newspaper. As Personnel Manager, petitioner had no "on-line" functions. III. In October, 1978, after returning from an equal employment opportunity seminar, petitioner became convinced that she was the victim of sex discrimination. She complained to General Manager Appleby, asserting that her exclusion from the managerial bonus plan and weekly managerial staff meeting was evidence of sex discrimination. In January, 1979, she repeated her complaint to General Manager Appleby, who attributed her exclusion from the bonus plan and staff meetings to the policies of Publisher LaMee and promised to discuss her complaints with him. Her complaint of sex discrimination was, under the circumstances, reasonable, and made in good faith. Although the newspaper had many female employees, none were included in its top-management or the important "on-line" positions. 2/ These were occupied, exclusively, by males. No females participated in the managerial bonus system or attended the weekly managerial staff meetings. Petitioner was excluded from the staff meetings, although her predecessor--who had been responsible for personnel, in addition to his other duties--was a regular participant. Because they occupied lower ranking positions, females, as a group, were paid less than on-line or executive male managers. Finally, Publisher LaMee's style of relating to and supervising female employees was perceived to be overbearing, condescending, and demeaning. In fact, he treated both male and female subordinates, alike, with abruptness and brooked no dissent. He sometimes abused and intimidated employees and was viewed, by some, as a "tyrant." An employee who crossed his policies could expect recrimination or retaliation. Although Publisher LaMee denied any knowledge of petitioner's complaints of sex discrimination, his denial is rejected as unworthy of belief. General Manager Appleby told him of her two complaints after each was made. Soon after petitioner complained to Mr. Appleby, and during the ensuing year, Publisher LaMee wrote notes to himself and left them on his desk. Those noted contained short phrases such as, "Fire Ann," "Fire A.M.," and "Can Ann." His attitude toward her became increasingly critical. On November 30, 1979, Publisher LaMee fired her for writing a personal letter during working hours and leaving the office prior to the close of business hours. He fired her abruptly and summarily, without first talking to the General Manager, her immediate supervisor. On the day in question, petitioner left work 15 minutes before 5:00 P.M., after other managers, including the Publisher and General Manager, had already left for the day. Indeed, the Ad Manager was, at that time, playing golf, though not on leave. Before leaving work, she notified the switchboard operator and left a number where she could be reached. Respondent supplies a third reason why petitioner was fired, though that reason was not expressed to her at the time. She was, according to respondent, lazy and had demonstrated a deteriorating work performance. Respondent asserts that petitioner was fired for these three reasons and denies that her prior complaints of sex discrimination were a factor in her dismissal. This assertion, and denial, are rejected as pretextual and unworthy of belief. The allegation that petitioner was lazy and her work deteriorating is inconsistent with her individual personnel record. Throughout her employment, she consistently, and repeatedly, received merit pay increases and positive comments about her performance. The only negative written comment is contained in a personnel extract compiled in late 1978 and early 1979. The extract, at least in part, is based on Publisher LaMee's derogatory comments about her. His credibility is already suspect so little weight is given the extract. Testimony by two of respondent's witnesses that she was frequently orally reprimanded is rejected as vague and inconsistent with her regular meritorious reviews and salary increases. Moreover, in petitioner's unemployment compensation hearing occurring after her dismissal, respondent did not express the view that she was fired, even in part, because of laziness or deteriorating job performance. Failure to express the view then detracts from its credibility now. As for her writing a personal letter during office hours, this was a practice engaged in by other managerial employees without disciplinary action. Petitioner was not paid an hourly wage and did not "punch a time clock." Because she and other managers worked overtime and on weekends without additional pay, they were given latitude during business hours, so long as they performed their work properly,. As for leaving 15 minutes early, this was also a common practice among managers at or above petitioner's level. Publisher LaMee had never before fired any employee for either of these reasons. The firing of petitioner for either or both of these reasons, is inconsistent with respondent's past treatment of its other employees, both male and female. In summary, the evidence convincingly supports an inference, now drawn, that petitioner was terminated from her employment, at least in part, because she opposed, and twice complained of, sexual discriminatory practices of her employer. There was a causal link between her complaints of sex discrimination and her dismissal. Her complaints were a substantial or motivating factor in respondent's decision to fire her. The three nondiscriminatory reasons given as grounds for her dismissal are unworthy of belief and rejected as pretextual, or a cover-up, for a discriminatory motive. IV. In 1978, respondent paid petitioner an annual salary of $12,140.80. She worked only 11 months in 1979--since she was fired on November 30, 1979--and earned $13,216.00--$1,201.45 per month. If she had not been fired in November, she would have earned $14,417.40 in 1979. In 1980, she worked at two jobs and earned a total of $7,239.87. In 1981, she earned $10,209.68; in 1982, $12,911.11; and in 1983, approximately $12,000.00. Since the hearing in this case occurred in November, 1983, evidence of her subsequent earnings should be supplied the Commission on Human Relations by supplemental evidence. Her salary at respondent's newspaper increased 8.85 percent between 1978 and 1979, from $12,140.80 to $13,216.00. If it is assumed that this rate of increase would have continued through 1984, but for her termination, she would have earned $15,693.34 in 1980; $17,082.20 in 1981; $18,593.97 in 1982; $20,239.53 in 1983; and $22,030.73 in 1984. A comparison of what she earned from other employment, and what is reasonable to expect she would have earned if she had remained in respondent's employ after November 30, Earnings From Other Employment 1979, are depicted below: Expected Earnings If She Had Not Been Fired Difference 1979 (Dec.) -0- 1,201.45 1,201.45 1980 7,239.87 15,693.34 8,453.47 1981 10,209.69 17,082.20 6,872.52 1982 12,911.11 18,593.97 5,682.86 1983 12,000.00 22,239.53 8,239.53 1984 * 22,030.73 * Total 30,449.83 To be calculated based on submittal of supplemental evidence before the Commission on Human Relations. Must be adjusted based on submittal of supplemental evidence. It follows that petitioner's salary loss due to her termination in November 30, 1979, totals $30,449.83, subject to adjustment for earnings during 1984. Petitioner is also obligated to pay her attorney a reasonable attorney's fee for his representation. Both parties agreed that the amount of any attorney's fee to be awarded should be determined by the Commission on Human Relations when it takes final action in this case, so no evidence was presented on this issue.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Commission on Human Relations enter an order finding that: Respondent is not guilty of committing an unlawful employment practice against petitioner in terms of her salary or her exclusion from the managerial bonus plain and weekly staff meeting; Respondent is guilty of engaging in an unlawful employment practice forbidden by Section 760.10(7), since it fired her because of, at least in part, her past complaints of and opposition to respondent's alleged sexually discriminatory practices; and Further, the order should prohibit respondent from engaging in further sexually discriminatory practices; and require that respondent (1) reinstate petitioner, with restoration of all job benefits; (2) pay her $30,449.83 in back pay, subject to adjustment for 1984 earnings; and (3) pay her a reasonable attorney's fee, as determined by the Commission. That Knight-Ridder Newspapers, Inc. be dropped as a party-respondent. DONE and ENTERED this30th day of August, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. 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 30th day of August, 1984.
The Issue Whether the outdoor advertising structures of the Petitioner, National Advertising Company, are in violation of F.S.A. 479.13 and 479.05.
Findings Of Fact The Petitioner, National Advertising Company, is the owner of two signs located on U.S. Highway 41, east of SR 840A which is known as the Turner River Road. The face on one side bears the copy of "Holiday Inn;" the face on the other side bears the copy of "African Safari." The Petitioner was cited on September 22, 1977, by the Department of Transportation for violation of Chapter 479.13 of the F.S.A. The real property upon which these structures are located was formerly owned by the Collier Company of Naples, Florida, who by letter dated November 17, 1976, notified the Petitioner that it expected to conclude negotiations for sale of its property leased by Petitioner sign company on November 1976 and therefore would not renew any sign space leases beyond their expiration date of December 31, 1976. The leases were not renewed and the structures stand upon the property without authorization from the present owner of the property, the State of Florida, which has leased it to the National Park Service. By letter dated April 14, 1977, the National Park Service, requested the Respondent DOT which has the responsibility to administer and enforce the outdoor advertising law, Chapter 479, F.S., to remove subject signs. As a reason for the request, it cited: Title 23 CRF - Highways, Part 131(h) states that "All public lands or reservations of the United States which are adjacent to any portion of . . . the primary system shall be controlled in accordance with the provisions of this section and the national standards promulgated by the Secretary," and Part 138 Preservation of parklands states: "It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands."
Recommendation Remove the Petitioner's signs. DONE and ORDERED this 4th day of April, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire Post Office Box 539 Winter Park, Florida 32790 Mr. O. E. Black, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
Findings Of Fact The Petitioner, Max Media Outdoor Advertising, held a lease for billboard space at 1410 North Mills Street in Orlando, Florida, and it had erected a sign at this location. On January 16, 1981, the landlord, Lust Industries, cancelled this lease, effective on approximately April 16, 1981. The rental was paid by the Petitioner through the month of March, 1981. On February 24, 1981, the Petitioner applied for a City of Orlando permit to erect a billboard at 1400-1406 North Mills (immediately adjacent to 1410), which was denied because of the proximity to its existing billboard. Over the weekend of March 21-22, 1981, the Petitioner began to dismantle its sign at 1410 North Mills Street, and on Monday, March 23, 1981, the final poles were taken out of the ground. On March 23 the Petitioner again applied for a permit at 1400-1406 North Mills Street, which was granted by the City of Orlando after confirmation that the sign at 1410 had been dismantled. The Petitioner's landlord, Lust Industries, had made inquiry late in 1980 or early in 1981 about the City's regulation of billboards, and in January or February of 1981 filed its own application for a permit at 1410 North Mills. This was denied by the City because of the Petitioner's existing billboard. After the removal of the Petitioner's billboard at 1410 North Mills, Lust Industries again applied for a City permit, but this time its application was denied because of the outstanding permit already issued to the Petitioner for the adjacent property. On March 18, 1981, while the Petitioner's billboard was still in existence at 1410 North Mills, Lust Industries applied to the Department of Transportation for a State permit at 1410 North Mills. Sometime in April, 1981, the Department of Transportation issued its State permit to Lust Industries, based upon inaccurate or false statements contained in the application. The Petitioner, having a valid City of Orlando Permit to erect its sign at 1400-1406 North Mills Street, then applied to the Department of Transportation for a State permit. This was denied because of the existence of a permit to Lust Industries at 1410 North Mills Street. As a result, neither the Petitioner nor Lust Industries are able to erect a billboard, the former for want of a State permit, and the latter for lack of a City permit. The witness for the Department of Transportation candidly admitted that the permit to Lust Industries would not have been granted if the information contained in its application had been known to be inaccurate or false at the time the application was considered.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Max Media Outdoor Advertising for a permit authorizing the erection of an advertising structure at Mills Street and Virginia Street in Orlando, Florida, be denied. THIS RECOMMENDED ORDER entered on this 27th day of May, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 27th day of May, 1982. COPIES FURNISHED: Mr. William Davidson Mrs. Michaeline Davidson Post Office Box 847 Winter Park, Florida 32790 Charles G. Gardner, Esquire 562 Haydon Burns Building Tallahassee, Florida 32301 Paul Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact The Respondent, Bill Salter Outdoor Advertising, Inc., was issued permits numbered AI-962-10 and AI-963-10 on or about April 28, 1983. These permits were for the erection of a sign located on the north side of I-10, approximately 1.6 miles east of SR 297, in Escambia County, Florida. They were issued because of the proximity of an automotive business noted on a sketch attached to the applications submitted by the Respondent as "Bill's Paint and Body Shop." In February of 1984, replacement tags numbered AL844-12 and AL845-12 were issued. The Respondent submitted the applications and the attached sketch for these permits, and designated on the applications that the sign location would be in an unzoned area within 800 feet of a business. The sketch shows what is designated as "Bill's Paint and Body Shop" to be in close proximity to the proposed sign location. On each of these applications the Respondent certified that the sign would meet all requirements of Chapter 479 of the Florida Statutes. Prior to the issuance of these permits, the subject site was inspected by the Department's outdoor advertising inspector, who approved the applications because of the existence of a "Pritchett's Paint and Body Shop" nearby the proposed sign location. This inspector was able to see several autos on the Pritchett property and some activity around these autos. Apparently because the inspector expected to find an automotive business near the proposed sign site as represented on the Respondent's applications, it was concluded that such a business existed there, and the applications were approved. Subsequently, a sign was erected on the Pritchett property with the copy "Willie's Paint and Body Shop," but this sign was not in place when the site inspection was made. From the main traveled way of I-10, the inspector was not able to testify specifically that any paint and body work was observed, or that any commercial activity could be seen from the interstate. The inspector merely testified "I observed activity around those automobiles going on." The Pritchett property is residential. Mr. Pritchett lives there. He does operate a paint and body business from his back yard. He has had an occupational license since 1977, renewing these businesses each year through 1984. Although he could not produce a license for the year when the permits were approved, this does not mean that he didn't actually renew the license for this year. Nevertheless, as viewed from I-10, only the sign which was erected subsequent to the approval of the permits and the rear portion of some autos, can be seen. The Department's inspector made a mistake in approving the Respondent's applications because no commercial activity is visible from the interstate. The testimony of the Respondent and his witnesses, including Mr. Pritchett, is rejected as being inconsistent with what can be seen by viewing the photographs in evidence. Moreover, whoever erected the sign had to feel that the view from I-10 was inadequate to qualify the site as commercial without it. During the summer of 1984, the subject site was inspected by a Department Right-of-Way Administrator, who determined that the permits had been issued in error because of the absence of visible commercial activity within 800 feet of the sign. In December of 1984, the Department issued its notices of violation advising the Respondent that the subject sign permits were being revoked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permits numbered AL844-12 and AL845- 12 held by the Respondent, Bill Salter Outdoor Advertising, Inc., authorizing signs on the North side of I-10, approximately 1.6 miles east of SR 297 in Escambia County, Florida, be revoked, and any signs erected pursuant to these permits be removed. THIS RECOMMENDED ORDER entered this 31st day of October, 1985, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-0327T The Proposed Findings of Fact submitted by the parties are ruled upon as follows: Petitioner's Proposed Findings of Fact: Accepted. Rejected, as irrelevant. Rejected, as irrelevant. Accepted. Rejected, as irrelevant. Accepted relative to use of sketch. Rejected relative to remainder, as irrelevant. Accepted. Accepted relative to the photos. Rejected relative to remainder, as irrelevant. Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Rejected, as irrelevant. Rejected. Accepted relative to the application. Rejected relative to remainder, as irrelevant. Rejected, as irrelevant. Accepted relative to visibility of the commercial activity. Rejected relative to remainder. Accepted relative to everything except the visibility from I-10. Rejected, relative to the visibility from I-10. Accepted. Rejected relative to visibility from I-10. Accepted relative to the remainder. Accepted. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Mark J. Proctor, Esquire Post Office Box 12308 Pensacola, Florida 32581 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
The Issue The issue in this proceeding is whether the Respondent's intended award of Invitation to Negotiate (ITN) 13/14-01 was contrary to the Department's governing statutes, rules or policies; contrary to the solicitation specifications; and was clearly erroneous, contrary to competition, arbitrary or capricious.
Findings Of Fact The Department is designated by section 409.2257, Florida Statutes (2014), as the Title IV-D agency for the State of Florida. As such, it is responsible for the administration of the Child Support Enforcement program that is required in all states by the Federal Social Security Act. See § 409.2577, Fla. Stat. As part of its duties under chapter 409, the Department is authorized to solicit proposals from, and to contract with, private contractors to develop, operate, and maintain a state disbursement unit (SDU). The SDU is responsible for processing, collecting and disbursing payments for most child support cases in Florida. The current contractor for the SDU is Xerox whose contract will expire on February 28, 2015. In general, Florida procurement law provides a continuum of competitive procurement processes running from invitations to bid, through requests for proposals, to invitations to negotiate. Invitations to bid are used where specifications can be stated with certainty with the primary issue being price. Invitations to negotiate, on the other end of the procurement spectrum, are used to purchase services when state agencies need to "determine the best method for achieving a specific goal or solving a particular problem." § 287.057(1)(c), Fla. Stat. (2014). In essence, an ITN contains the process a state agency follows in awarding a contract and the criteria to which a vendor should reply in order to be considered responsive to the ITN. Under an invitation to negotiate and even though a reply must be responsive to the invitation, specifications generally are more fluid and less mandatory. Price, while important, is negotiable. Indeed, an agency may "reply shop" the terms, including price, of one vendor's reply against a competitor's reply in seeking revisions to that vendor's reply. As such, contract price is a more fluid concept under an ITN and is not the primary consideration in an ITN. In this case, the Department was seeking a solution for processing, collecting and paying child support payments based on a negotiated per transaction rate resulting from such SDU services plus negotiated service costs associated with the operation of the SDU. In fact, contracting for a transaction- rate-based price was one of the prime considerations under this ITN because the Department felt it could gain significant contract savings by utilizing a transaction-rate-based pricing scheme in its negotiations. Towards that end, the Department issued Invitation to Negotiate 13/14-01 on August 27, 2013, soliciting service solutions for the operation of the SDU. Prior to receiving replies to the ITN, the Department issued seven addenda to the ITN, provided several replacement pages to the ITN and answered numerous vendor questions regarding the ITN. After the release of the ITN and the seven addenda, there was no protest filed pursuant to section 120.57, Florida Statutes, regarding the ITN's specifications. As such, any objection to those specifications was waived by Petitioner and Intervenor. In this case, the ITN required a vendor's reply to be in a particular format. Specifically, the ITN required that a vendor's reply consist of two components presented in two multiple-tabbed binders: the Administrative/Technical Reply (Technical Reply) and the Cost Data Reply (Cost Reply). Technical Replies were to contain non-cost information such as corporate capability, proposed solution technical components, quality assurance and monitoring, and a variety of attachments. Cost Replies were to contain a vendor's Transaction Rate, Baseline Compensation, Reimbursable Costs, and other cost-related information as specified by the ITN. Vendors were not permitted to disclose any cost information in the Technical Reply. Additionally, the ITN required that a 15-page "Requirements Response Location Form" be completed and provided by the vendor in its ITN reply. The form listed the section numbers of the essential criteria of the ITN and the pages of the ITN on which each criterion could be found. The form also contained blank spaces adjacent to each referenced criteria where the vendor was to list the sections and pages of the vendor's reply that responded to each of the referenced criteria in the requirements response form. Relevant to this case, Section 1 of ITN 13/14-01 contained general definitions of terms used in the ITN. Under Section 1, a "Responsive Reply" was defined as "[a] Reply submitted by a responsible Vendor that conforms in all material respects to the solicitation." A "Minor Irregularity" was defined as "[v]ariations of terms and conditions from the Invitation to Negotiate which do not affect the price of the Reply or give the Vendor an advantage or benefit not enjoyed by the other Vendors or do not adversely impact the interests of the State." Additionally, the Department reserved the right to waive minor irregularities in a vendor's reply. ITN Section 2.4 provided: "The FDOR intends to negotiate with one or more Vendors who are compliant with the mandatory compliance items identified throughout this document." ITN Section 2.5 addressed Desired vs. Mandatory Requirements and Actions: Within the ITN the use of "shall" or "must" indicates a mandatory requirement or mandatory action. The FDOR may consider failure to meet a mandatory requirement to be a material deficiency, in which case the FDOR may reject the Reply and not consider it further, or FDOR may have the option to score that requirement with a zero (0). (emphasis added). The use of "should" or "may" indicates a desired requirement. The FDOR will not reject a Reply just because it fails to meet a desired requirement and may result in a lower score for that requirement. Clearly under the ITN, the mandatory nature of a requirement did not result in the criteria also being material since the Department could consider failure to meet a mandatory requirement to be a material deficiency or allow the vendor to move to the evaluation phase with the materiality of such criteria to be addressed by the evaluators during scoring. ITN Section 3.1.9, titled "Material Requirements Compliance Review," addressed the ITN's pro-forma review for responsiveness and provided: Each Vendor shall submit a Reply that conforms in all material respects to this solicitation. Material requirements of the ITN are those set forth as mandatory or those that affect the competitiveness of Replies. All Replies will be reviewed to determine if they are responsive. The FDOR will conduct a Material Requirements Compliance Review of all Replies submitted in response to this ITN. This review does not assign scores, but is simply a pass/fail review. Replies that do not meet all material requirements of this ITN; fail any of the mandatory requirements in this ITN; fail to timely respond to Reply Qualification Requests (see Section 3.1.10); fail to provide the required/requested information, documents, or materials in the Reply and/or during the Reply Qualification Process; or include language that is conditional, or takes exception to terms, conditions and requirements, shall be rejected as non-responsive and not considered further. The FDOR reserves the right to determine whether a Reply meets the material requirements of the ITN. Additionally, Section 3.1.10 of the ITN provided that the Department was to initially review each reply "to determine a Vendor's compliance with the requirements of the ITN not directly related to the Technical Specifications and Cost Data of the ITN." (emphasis added). A checklist titled "Material Requirements Compliance Review" was used to determine the responsiveness of a reply. The checklist items are not at issue here. Importantly, per the ITN criteria, the material responsiveness review was a review of the form of a reply and not a review of the substance of the same. Indeed, deficient replies could be cured as part of the "Reply Qualification Process." After the responsiveness review, an Evaluation Committee chosen by the Department would score the Administrative/Technical Volume for each vendor in accordance with the evaluation criteria in the ITN. Towards that review, the vendor was required to complete and submit the "Requirements Response Location Form" as part of its reply. As indicated earlier, the response location form listed the section numbers of the essential criteria of the ITN and the pages of the ITN on which each criterion could be found. The form's criteria references matched the criteria references in the score sheets to be used by the individual evaluators to score a vendor's reply. Further, the evaluation committee used the location form to locate information within a vendor's reply. In evaluating replies, the committee members were not expected to hunt down information in a vendor's reply outside what was provided by a vendor on its response location form. Thus, the form is a very good indication of the materiality or importance of a particular ITN criteria since those criteria were the ones on which a vendor's reply was to be evaluated. Relevant to this case, Section 7.13.1.1 of the ITN required that a letter of commitment for a surety bond be submitted with a vendor's cost reply. There was no prescribed format or wording for this letter. Additionally, Section 12 of the ITN contained a table titled "Attachments and Submittals." According to Section 12, the table listed a variety of documents "to be completed and included in Volume One: Administrative/Technical as indicated[.]" However, the table clearly listed documents that the ITN, in other sections, required to be in Volume Two, the Cost Data Reply. In fact, the table itself only indicated who should complete a document. It did not indicate whether a document was required, for responsiveness purposes, to be submitted with a reply. The "as indicated" language, referenced above, referred to other sections within the ITN to determine if such documents should be submitted and in what volume they should be submitted. Other than referral to other sections of the ITN, Section 12 did not require that any document listed in its table be attached to the ITN. Two of the documents listed in Section 12 of the ITN were "Incident Control Policy and Procedures" and "Change Management Policy and Procedures." In the column of the table titled "Attachment" these two documents were listed as "Vendor's Documents." However, unlike the other documents listed in the Section 12 table, these two documents had no attendant requirement in other sections of the ITN stating that the two documents should be provided or where in a vendor's reply the two documents should be placed. The Department's responses to October 24, 2014, vendor questions 18 and 19 regarding these documents were that the two documents referred to the vendor's corporate documents and that a copy of such documents were required to be submitted with a vendor's "proposal." Except for the Department's responses, there were no written addenda amendments to the ITN document making such submission mandatory or indicating in what section of the vendor's multi-tabbed response the documents should be included. Further, no addenda amendments were made to the response location form to cover these documents. Similarly, no addenda amendments were made to the evaluator's score sheets to cover or evaluate these documents. Thus, despite the use of the word "required" in the Department's response to questions 18 and 19 and in view of the lack of any amendments to the ITN in relation to these responses, the evidence demonstrated that submission of these two documents with a vendor's reply was only desired by the Department and was not mandatorily required under the ITN for purposes of responsiveness. Section 12 of the ITN also listed Attachment G, "Individual Contractor Security and Agreement Form." The form was to be "completed" by the vendor and subcontractors. As discussed above, inclusion in the Section 12 table did not indicate whether a document was required for responsiveness purposes to be submitted with a reply. Those criteria were found elsewhere in the ITN. Notably, the provision of the standard contract which would emerge from this ITN required the security form be executed by subcontractors within five days of signing the contract. More importantly, Section 6.6 of the ITN stated that Attachment G "should" be executed and submitted with a vendor's reply. As such, the document's attachment was not mandatorily required for responsiveness purposes, but was only desired by the Department at this point in the ITN process since the winning vendor and its subcontractor's must provide the document within five days of signing the contract. The ITN further provided in Section 10.3.2 that upon completion of the Administrative/Technical evaluation, the Cost Data Volume would be publicly opened and scored. Relevant to this case, the ITN addressed renewal cost and renewal of any future contract in Section 7.4 of the ITN. Section 7.4 stated, in pertinent part: RENEWALS The FDOR reserves the right to renew any Contract resulting from this ITN. Renewals shall be subject to the terms and conditions set forth in the original Contract and subsequent amendments, . . . Vendors shall include the cost of any contemplated renewals in their Reply, . . . In substance the section tracked the language of section 287.057(13), Florida Statutes, making any renewal subject to the same terms and conditions, including price, as the original contract. The statute also requires that the "price" of any "services to be renewed" be provided in a vendor's reply. However, if a separate renewal price was not provided in a vendor's reply, any renewals would be at the price of the original contract since under the ITN the original price would be the renewal price for section 287.057(13) purposes. On the other hand, Section 7.4 of the ITN deviated from the statute's language and required that the "cost" of any "contemplated renewals" be included in the vendor's reply. Such cost information was not part of the criteria requirements listed for the ITN on the "Requirements Response Location Form" and was not part of the requirements to be evaluated by the evaluation committee. Question 39 posited by SMI on September 18, 2013, asked about the handling of renewal cost information in the vendor replies to the ITN. The Department's response to question 39 was that "renewal rate information" "should" "please" be provided in summary form in the cost volume of the vendor's reply to the ITN. Additionally, the Department's response stated that renewal cost information was not to be "scored" as part of the transaction rate. Clearly, the Department in its response viewed this "rate information" as related to the transaction rate, which was one of several costs used to calculate total compensation under the ITN. The Department's explanation or interpretation of Section 7.4 has a reasonable basis since renewal of the contract was statutorily restricted to the same terms and conditions of the original contract, making such renewal cost information immaterial. Additionally, the renewal information was not part of the scoring criteria that permitted a vendor to move through the negotiation process under the ITN and was not required in order for a vendor to be responsive to the ITN. In essence, the Department's response made the provision of renewal cost information a non- essential criteria of the ITN. Non-compliance with such criteria can be waived by the Department as a minor irregularity.2/ ITN Section 10.3.2.1.4 provided: Only cost submitted in the prescribed format will be considered. Alternate cost models will not be considered for scoring purposes. Vendors selected for negotiations will be provided the opportunity to present alternate costing structures. "Alternate cost models" referred to models that did not use a transaction-based rate such as a fixed price model or did not use the format for calculating compensation required by the ITN. Part of the format for vendor cost replies included Attachments K (Transaction Rate Cost Form), L (Baseline Compensation Form), M (Reimbursable Cost Form), N (Unknown, Unanticipated, and Unspecified Tasks Cost Form), and O (Total Compensation Form). Additionally, after questions posed by the vendors, the Department supplied an estimate of the number of transactions it predicted might be processed by the SDU under the contract. The estimate provided by the Department was 69,425,110 transactions and was based in part on an assumed percentage increase in actual transactions that occurred under the current contract in 2012. Attachment K was the form used by a vendor to explain and report the per-transaction rate that the vendor would charge the Department for each transaction it processed through the SDU. The form required disclosure of the costs the vendor included in determining its transaction rate. The form was required to be signed by a representative who could bind the vendor. Relative to Attachment K under the ITN, neither the method used nor the costs included by a vendor to calculate its transaction rate was prescribed by the ITN criteria. There was no requirement that the Department's estimated number of transactions of 69,425,110 be used in calculating the vendor's transaction rate. The Department only supplied such estimates as information to the vendor. In fact, a vendor was free to use its own assumptions regarding the estimated number of transactions that might be processed through the SDU in its calculation of its transaction rate. The method of rate calculation did have to be explained. However, once calculated, the vendor's transaction rate was carried over to line "B" on Attachment L which, as discussed below, ultimately filtered through to a contract price and commensurate price of services that might be renewed in Attachment O. Attachment L was the form used to calculate the baseline compensation cost for the vendor. The initial form did not require that the Department's estimate of 69,425,110 transactions be used in the calculation of the baseline compensation cost. After questions from the vendors and internal discussions within the Department, Attachment L was revised to require that the Department's estimated number of transactions be used on that form. Notably, the Department did not revise Attachment K to require the use of the estimate when it revised Attachment L. The formula used to calculate Projected Baseline Compensation on Attachment L required the vendor to multiply its transaction rate from Attachment K by the Department's estimated transactions of 69,425,110. The requirement to use the Department's estimated number of transactions on Attachment L normalized the vendors' baseline compensation calculation so that an apples-to-apples comparison of baseline compensation could be made between vendors. Once calculated, the projected baseline compensation cost calculation was carried over to a line item in Attachment O, which form calculated the total projected SDU compensation, the cost factor used in awarding points to evaluate a vendor's reply. Attachment M was the form on which a vendor was to submit estimates of actual costs the vendor anticipated it would expend for performing the contract. Although not specified, presumably the costs listed by the vendor on Attachment M would be those not used in the vendor's Attachment K transaction rate calculation. Additionally, ITN specifications Sections 7.10.4.3 and 10.3.2.3 provided that all vendors "shall execute and submit Attachment M: Reimbursable Costs." The term "execute" simply means to complete. Within Attachment M, a list of several anticipated cost categories (facilities rent/lease, postage, e-disbursement, post office box fees, etc.) were provided by the Department. There were also several blank fields for additional cost categories contained on the form. The specifically-listed cost categories were those categories the Department, in its experience, anticipated a vendor might incur and for which it would reimburse a vendor. The use of the phrase "will reimburse" in relation to these anticipated cost categories did not make the reporting of such costs mandatory given the format of Attachment M and the instructions later provided on the form discussed below. Such anticipation only indicated interest by the Department in those expense categories but did not create a requirement that those specific expenses were required to be estimated by a vendor for purposes of responsiveness to the ITN in order to move forward in the evaluation and negotiation process.3/ Indeed, such costs or expenses were intentionally negotiable under the ITN. Following this list, a box to provide the amount of each reimbursable cost and ultimate total was provided at the end of Attachment M. Notably, except for two of the anticipated cost categories, the box did not include any of the anticipated costs listed earlier in Attachment M. The two cost categories that were listed in the reimbursable cost box were "Facilities Rent/Lease" and "CSR Salary Expenses." Both these cost categories had blank fields where the vendor was required to fill in an amount in the reimbursable cost box at the end of Attachment M. Additionally, the instructions for executing the box clearly stated that amounts for these two categories must be provided. As indicated, the other anticipated costs contained on Attachment M were not specifically listed in the reimbursable cost box. Only blanks, labeled as "(other)," where amounts for vendor "proposed" costs could be reported were contained within the box. Given the format of this form and the instructions at the top of the reimbursable cost box, amounts for anticipated cost categories listed in Attachment M, other than the two required cost categories in the box, were not required to be proposed by the vendor in completing Attachment M and, as indicated earlier, such amounts were not required in order for a reply to be responsive to the ITN. As with the other forms, the total from the reimbursable cost box was carried over to a line item in Attachment O. Attachment O was the form used to calculate the total projected SDU compensation that constituted the vendor's proposed contract price. The proposed price was also the price for services which may be renewed since, unless the vendor proposed a different renewal price, this was the original price proposed as a term of the initial contract. Section 10.3.2 sets forth the formula for scoring the Cost Data Volume of a vendor. The formula was: Total Available Cost Points x Amount of Lowest Response Cost/Vendor's Reply Cost (emphasis in original). The ITN further stated: "Each Vendor's Cost Data points will be added to their Administrative/Technical score to obtain the Vendor's Total Reply Score. The Vendor's Total Reply Score will be used to determine which Vendors the FDOR will Negotiate with." Thus, the vendor with the lowest cost would receive the maximum points available for its Cost Data Volume with all other vendors receiving a portion of the total available Cost Data points proportionate to the difference between their proposed cost and that of the vendor with the lowest cost. Notably, lower cost points did not disqualify a vendor from selection for negotiation. Similarly, a lower Total Reply Score did not disqualify a vendor from selection for negotiation because the goal in an ITN procurement is to develop a range of vendor replies for negotiation. The ITN, in Section 11.3, provided broad discretion to the Department regarding the manner in which negotiations would be conducted, including obtaining revised offers from vendors. The section reserved to the Department the right to: negotiate with one or more, all, or none of the vendors; eliminate any vendor from consideration during negotiations as deemed to be in the best interest of the State; and conduct negotiations sequentially, concurrently, or not at all. Sections 3.1.19.1 and 11.5 of the ITN provided that at the "conclusion" of negotiations, the Department would post a Notice of Intended Agency Decision, as determined to be in the best interest of the State. However, this language must be read in conjunction with Section 11.4 of the ITN that authorized the Department's negotiation team to request a Best and Final Offer (BAFO) from one or more vendors with which the Department concluded negotiations. The section reserved to the Department the right to "request additional BAFO; reject submitted BAFO; and/or move to the next vendor" after a BAFO had been submitted and negotiations concluded. Additionally, Section 2.6.9 contemplates that discussions, i.e. negotiations, regarding the form and language of the final contract would continue after the Notice of Intent to Award was posted. Section 2.6.9 states: The FDOR anticipates initially addressing any contract terms and conditions or concerns during the Negotiation process and then continue discussions post award. Given this language, the Department, in its judgment and acting in the best interest of the state, may post an intended award prior to the complete conclusion of negotiations and finalization of the contract with a vendor. In this case, SMI and Xerox both timely submitted a reply to the ITN. Each reply contained a Volume I: Administrative/Technical; and a Volume II: Cost Data. Both vendors submitted a completed Requirements Location Response Form and had information contained in their reply relative to the references contained in that form. As indicated earlier, under the ITN's pro forma responsiveness review, the substance of each vendor's reply was not a determining factor in whether a vendor's reply was responsive to the ITN for purposes of being accepted and moving forward in the ITN process. John Kinneer was a purchasing analyst with the Department. He served as the procurement officer and as a negotiator with respect to the ITN. Mr. Kinneer reviewed the technical replies submitted by Xerox and SMI for pro-forma responsiveness to the ITN sufficient to move forward in the ITN process. In compliance with the ITN, he checked the Material Requirements form for both vendors and checked that each vendor had some information in its technical reply relative to the response form. Per the ITN, he did not check the substance of that information. In this case, the evidence demonstrated that both replies met the preliminary responsiveness requirements of the ITN and properly moved forward in the ITN process to the evaluation phase. The Department appointed an evaluation team of seven persons to evaluate and score the Technical Replies. The Committee consisted of Shannon Herold, Barbara Johnson, Connie Beach, Stan Eatman, Beth Doredant, Mark Huff, and Craig Curry. Under the ITN, the evaluation team was tasked with analyzing the substance of each reply and scoring them accordingly with any issues regarding the quality or responsiveness of a vendor's reply to be addressed in that evaluator's scoring. Each evaluator reviewed and independently scored each vendor's reply according to the criteria listed in the "Requirements Response Location Form." In this case, both replies contained a surety letter of commitment as required by Section 7.13.1.1 of the ITN. SMI's letter was from OneBeacon, the apparent bonding agent in the letter. Indeed, there was no evidence that OneBeacon was not a bonding company. The letter indicated that OneBeacon intended to provide a bond to SMI and that SMI qualified for such a bond in an amount sufficient to meet the requirements of the ITN. Xerox's letter of commitment was also from an apparent bonding company and stated only that the bonding company was "prepared to write the required performance bond" in an unspecified amount and "subject to standard underwriting conditions." While one may quibble about the language used in both Xerox's and SMI's letters, the evidence showed that both letters were not simply letters of reference from a bonding company but were letters of commitment from such companies and were intended as such by those bonding agents. Moreover, the language of both letters was acceptable to the Department as meeting the requirements of the ITN. As such, both Xerox and SMI were responsive to the surety commitment requirements of the ITN. Xerox's reply also attached a copy of its Corporate Change Control Policy and Procedures and a copy of its Corporate Incident Control Policy. These documents were developed by Xerox over several years of being in the business of providing SDU services. They were not developed in relation to this ITN and the evidence did not show that Xerox was disadvantaged either monetarily or otherwise by producing these documents for the ITN. On the other hand, SMI did not attach such documents. Instead, SMI summarized the substance of its policy and procedures in Tabs 3, 10 and 13 of its Technical Reply and included a copy of SMI's corporate Security Plan encompassing the incident and control policies of SMI. The quality of SMI's reply was evaluated by the evaluation committee members and scored according to the criteria relevant to the ITN. Further, the evidence demonstrated that failure to attach these two documents would not adversely affect any vendor or impair the procurement process since a vendor ultimately was required to agree to adopt the Department's incident control and change management policies and procedures. Moreover, as indicated earlier, the documents were not part of the responsiveness requirements under the ITN. Therefore, SMI's reply was responsive without the attachment of these two documents. However, assuming such documents were required, the evidence demonstrated that the lack of copies of specific documents titled in a certain way was a minor irregularity which the Department reasonably waived since SMI summarized the information relevant to these documents in its reply. Such waiver was not clearly erroneous, contrary to competition, arbitrary, or capricious. Additionally, Xerox submitted with its reply an executed Attachment G, Individual Contractor Security Agreement Form, for both itself and its proposed subcontractors. SMI submitted an executed Attachment G for itself but did not submit the attachment for its proposed subcontractors. The form was not submitted for SMI's proposed subcontractors because its subcontractors could not access the Department's online procurement library to determine what they would be agreeing to by signing the form. The inaccessibility of the procurement library was not the fault of SMI or its subcontractors but was due to the Department's failure to provide the policies referenced. Additionally, the Department's Standard Contract required Attachment G to be provided within five business days of contract execution. The evidence did not demonstrate that SMI's failure to include an executed Attachment G for its subcontractors constituted a material deviation from the ITN. Further, as indicated above, Attachment G was not a mandatory provision of the ITN for responsiveness purposes. As such, SMI's reply was responsive on this criterion. However, even assuming Attachment G was required under the ITN, the quality of SMI's reply was evaluated by the evaluation committee members under the relevant criteria. The evidence did not demonstrate that SMI obtained an unfair competitive advantage by not including this form in its reply since any subcontractor would have to submit the executed form after contract execution as required by the Department's Standard Contract. Additionally, the evidence did not demonstrate that the procurement process was undermined by the lack of a subcontractor Attachment G in SMI's reply. Therefore, the lack of such a document in SMI's reply was reasonably waived by the Department as a minor irregularity and such waiver was not clearly erroneous, contrary to competition, arbitrary, or capricious. The evaluation team completed scoring of the vendor's technical replies around January 17, 2014. Xerox scored 969 points and SMI scored 943 points. The difference of 26 points was not shown by the evidence to be significant since both vendors were experienced and well qualified to perform the services required to operate the child support State Disbursement Unit. After the technical replies were evaluated and scored, the initial Cost Data replies of each vendor were opened and the total costs read aloud at a public meeting. The initial cost replies were reviewed by Mr. Kinneer to ensure the replies were mathematically accurate and that the cost forms were used. He did not review or consider the substance of the cost numbers included on those forms or the narratives in the cost replies. The substance of the cost replies was left for consideration by the negotiation team. Xerox's proposed total compensation for years 1 through 5 of the contract was $84,920,072.00. SMI's proposed total compensation for the same period was $47,996,387.00, approximately $36 million less than Xerox's proposed compensation. Neither vendor submitted a separate price for renewal of the SDU services contract. Therefore, for purposes of section 287.057(13), Florida Statutes, the "price" for the "services to be renewed" was the amount stated above for that vendor. Both Xerox and SMI were responsive for purposes of the statutory requirement of section 287.057(13). Xerox also submitted a brief summary of renewal cost in its introductory letter to its cost reply. In essence, Xerox did not anticipate any renewal cost associated with future renewal of the contract. SMI, also, did not anticipate any renewal cost associated with future renewal of the contract, but did not submit a statement to that effect. However, as discussed above, such cost information was not part of the criteria requirements listed for the ITN on the "Requirements Response Location Form" and was not part of the requirements to be scored by the Department for purposes of the cost reply. The evidence demonstrated that the information was immaterial to the Department in evaluating these replies. Further, the evidence did not demonstrate that failure to summarize such renewal cost information would adversely affect any vendor or impair the procurement process. Under this ITN and the facts of this case, the failure to provide such non-essential cost information constituted a minor irregularity and was appropriately waived by the Department. The Department's action in that regard was not unreasonable and was not clearly erroneous, contrary to competition, arbitrary, or capricious. The evidence showed that both vendors filled out Attachments K, L, M, N, and O. Relative to Attachment K, Transaction Rate, both vendors completed the form based on their unique assumptions regarding the appropriate transaction rate. Neither vendor used the Department's estimated transaction amount of 69,425,110 transactions. Xerox claimed that its assumptions took into consideration the Department's estimate and that such consideration was buried in its ultimate calculation. However, Xerox's mathematical explanation of its transaction rate calculation on its Attachment K does not reflect that it used the Department's estimate in its calculation. In general, the explanation of its transaction rate contained in its reply reflects that Xerox based its transaction rate on the current contract price minus the annualized costs contained in its Attachment M, divided by the actual number of transactions Xerox processed in 2012 and discounted by 12% to produce a transaction rate of 1.150 for the ITN. Clearly, Xerox did not use the Department's estimate in its calculation and, instead, based its transaction rate on the current contract price, a method the Department warned vendors against using. Similarly, SMI did not use the Department's estimated transaction number in its calculation of its transaction rate on Attachment K. SMI based its proposed rate of .497 on its own historical transaction volumes from other states. The estimated number of transactions used by SMI was 45,066,694 transactions. For unknown reasons, the detailed explanation of the amount of transactions used by SMI was placed on Attachment L. However, the explanation was not used on Attachment L and did not impact the calculation contained on Attachment L. Such misplacement was immaterial to the ITN and had no impact on the ultimate result in Attachment O. As such, the misplaced explanation did not render SMI's Attachment K non-responsive to the ITN and both Xerox and SMI were responsive to the ITN regarding Attachment K. Likewise, the misplaced explanation of SMI's transaction volume did not render SMI's Attachment L non- responsive to the ITN since it was immaterial to that Attachment. Further, the evidence demonstrated that both Xerox and SMI used the Department's estimated transaction volume on Attachment L as required by the ITN. Therefore, both Xerox and SMI were responsive to the ITN regarding Attachment L. Relative to Attachment M, Reimbursable Costs, both vendors supplied cost amounts for rent and CSR salaries as required by Attachment M. However, neither vendor supplied all of the cost amounts listed in Attachment M's list of anticipated costs. SMI did not supply amounts for postage associated with certain services, post office box fees, foreign bank fees, and hand-signed paper check stock costs. Xerox did not supply amounts associated with SDU mass mailings as listed in cost category two for postage-related items on Attachment M and did not submit an amount for telecommunications cost. As discussed earlier, except for two of the anticipated cost categories of rent and CSR salaries, the ITN did not require that amounts be supplied for those categories in order for a reply to be responsive to the ITN. Therefore, both Xerox and SMI were responsive to the ITN regarding Attachment M. Both Xerox and SMI submitted a responsive Attachment O which included line items from Attachments K through N. Attachment O formed the basis for awarding points based on the lowest cost. As indicated earlier, Xerox's proposed total compensation for years 1 through 5 of the contract was $84,920,072.00. SMI's proposed total compensation for the same period was $47,996,387.00. Under the ITN, the cost replies were scored according to the ITN specifications in Section 10.3.2 and the formula contained therein. SMI received a total of 660 points as the low cost reply. As the second lowest cost reply, Xerox received 376 points as a proportion of the total 660 points received by SMI. Both vendors' scores were added to their technical scores. SMI received a combined Total Reply score of 1603 points for its reply. Xerox received a combined Total Reply Score of 1346 points for its reply. As responsible and responsive vendors, both Xerox and SMI were selected to participate in the negotiation phase of the ITN, where, under the ITN, the criteria and terms of the ITN became negotiable. Further, the evidence did not demonstrate that either the evaluation scores or the Total Reply Scores impacted the ITN process beyond qualifying the vendors to participate in the negotiation process. The Department formed a Negotiation Team consisting of Thomas Mato, Clark Rogers, Nancy Luja, Max Smart, Steve Updike, John Kinneer, and Bo Scearce. Several meetings of the Negotiation Team were held during which the team evaluated Xerox's and SMI's replies, posed written questions to the vendors and discussed technical issues with technical experts. Face to face negotiating sessions between the team and the vendors were also held, as well as meetings to discuss technical issues with the parties. Additionally, two rounds of separate demonstrations of a vendor's proposed system and solution were given to the Negotiation Team by Xerox and SMI. The Negotiation Team only observed the demonstration of each vendor in the first such meeting. During the second demonstration by each vendor, the Negotiation Team observed the demonstration and asked questions of the vendor. Based on these demonstrations and meetings, the team elected to request revised replies from both vendors. At some point prior to submission of the revised offers and per the ITN, the team communicated to Xerox that, if it wished to stay competitive in the ITN process, it should bring its price closer to that of SMI. The team also communicated its desire to SMI that costs from the anticipated cost list on Attachment M that SMI had not included in its initial reply should be included on that form. With that information from the Negotiation Team, Xerox and SMI submitted revised cost replies. Xerox's Total Projected SDU Compensation dropped from $84,920,072.00 to $48,200,000.00. Its transaction rate was reduced from $1.150 to $.525. Its Attachment M cost estimate increased from $5,081,195.50 to $9,926,119.00. SMI's Total Projected SDU Compensation increased from $47,996,387.00 to $49,500,000.00. Importantly, its transaction rate remained the same at $.497. Its Attachment M cost decreased from $13,492,107.00 to $12,433,125.00. After reviewing the revised replies, the Negotiation Team elected to continue to conduct negotiations with SMI first. Such vendor selection was appropriate under the ITN since its transaction rate remained lower than Xerox's transaction rate and the team preferred SMI's solution for a variety of legitimate reasons to Xerox's solution. Additional negotiations were conducted with SMI, resulting in additional terms and conditions. After several such negotiation meetings, the evidence showed that the substantive part of the negotiations, including price and scope of work, had concluded with only final contractual language remaining. As such, the Negotiation Team requested a Best and Final Offer (BAFO) from SMI. On May 14, 2014, SMI submitted its BAFO. SMI's Total Projected SDU Compensation increased from $49,500,000.00 to $50,700,000.00. Its transaction rate dropped slightly to $.495 and its Attachment M cost increased from $12,433,125.00 to $13,740,152.09. The BAFO was acceptable to the negotiation team and would, along with SMI's technical reply, become part of the Department's standard contract under the ITN. The team reasonably concluded SMI's management team was superior, and its solution was more customer friendly, intuitive, efficient, and innovative. The Negotiation Team documented its reasons for selecting SMI in a memorandum to the procurement file. On May 19, 2014, the Department posted its Notice of Intended Award to SMI. The evidence did not demonstrate that the award violated section 287.057, Florida Statutes, since that section only requires that negotiations be "conducted" prior to an intended award of a contract. Notably, the award is only intended and is not final since the Department under Sections 3.1.19.2 and 7.3 is not required to enter into a contract if such a document cannot be finalized. Indeed, the statutory language of section 287.057(4) and the ITN in Section 2.6.9 permit continued negotiation and finalization of a contract after the Notice of Intended Award. In this case, the evidence demonstrated that the negotiations between the negotiation team and SMI resulted in a meeting of the minds regarding the services that SMI would be performing and the price for those services. Further, the evidence showed that the negotiations had concluded in all substantial respects prior to posting of the Notice of Intent to Award the contract to SMI. What remained for the Department and SMI to accomplish was the finalization of the contract assembly by inserting the BAFO, Technical Reply, and price into the contract language; insertion of a start date; and work on implementation issues such as invoices and background screening of employees. Given these facts, the evidence demonstrated that the point at which the Department elected to post its Notice of Intended Award was reasonable since the substantive parts of the negotiations were complete. Ultimately, the evidence in this case did not demonstrate that the ITN process followed by the Department was fundamentally flawed or gave an advantage to one vendor over another. Further, the actions of the Department in this procurement were not contrary to the Department's statutes; contrary to the Department's rules or policies; or contrary to a reasoned interpretation of the ITN specifications. Finally, the evidence did not demonstrate that the Department's actions were clearly erroneous, contrary to competition, arbitrary, or capricious. Given these facts, the protest filed by Petitioner should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Respondent, Florida Department of Revenue, enter a final order dismissing the protest of Petitioner, Xerox State and Local Solutions, Inc., and approving the award of the contract to Intervenor, Systems and Methods, Inc. DONE AND ENTERED this 18th day of February, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 18th day of February, 2015.
The Issue Whether the amount awarded Petitioner for relocation was a sufficient and proper award.
Findings Of Fact Prior to the acquisition of a highway right of way for project 57050- 2515 in Okaloosa County, Florida the appellant operated a small business on parcel 103, which was needed for the highway. The business was known as Koolie of West Florida, Inc., and among other things sold bottle drinks, blue luster products and large round cakes of soybean meal used for fish bait. On August 23, 1976 the Respondent, Department of Transportation, informed Mr. Dick Carter, the President and Owner of the business of the different options available for reimbursing him for moving expenses. It was explained that if he hired a licensed mover the Florida Department of Transportation could pay the mover on an actual cost basis. It was further explained that if he wished to move the business, using his own personnel, he would be reimbursed up to the amount of the lowest of two commercial bids. One commercial bid was obtained but the requirement of two commercial bids was waived for the reason that Crestview, Florida is a small town and has only one licensed mover. On September 29, 1976, Mr. Carter was informed of the amount of the bid and Mr. Carter chose to move his business himself, although Mr. Carter made known his dissatisfaction with the amount of the low bid. Upon learning of the dissatisfaction with the estimate, the Respondent Department requested Mr. Carter to notify it of the time and date of the move so that any additional moving expenses could be documented. The Department was not informed and the Petitioner moved to its new location. Thereafter, a claim was made for additional moving expenses and a supplemental move cost claim in the amount of $347.25 was offered to the Petitioner and he was notified that if the amount was not satisfactory, an administrative hearing would be arranged. The additional amount was refused and Petitioner requested the subject hearing. The supplemental move cost claim and the supplemental amount allowed, $347.25 was based on the certified inventory sent by the Petitioner to the Respondent. The move took place some four months after the inventory was sent to the Respondent and the Petitioner had expressed its dissatisfaction with the moving reimbursement, but although requested by the Respondent, did not notify the Respondent of the time and date of moving so that a representative of the Respondent could be present to assess the additional cost of moving, if any. Petitioner contends that the inventory sent the Respondent was incorrect and that instead of 200 soybean cakes that had to be moved it was in fact 1000 soybean cakes. Petitioner contends that he should have received $625.00 for 250 cakes of soybean meal which he said were destroyed in moving plus a sum of $97.50 which was in addition to the original estimate by the moving company. Respondent contends that there are provisions for a self move providing the cost is less than a $1000.00 on the lowest of two estimates; that in the City of Crestview there is only one certified mover so a special dispensation was allowed so that the one certified mover would submit an estimate of moving cost; the Petitioner provided an inventory, and an estimate of moving cost was submitted by Shaw, a certified mover. The Petitioner chose to move himself and was offered reimbursement in the amount of the estimate by the certified mover as revised and was also offered reimbursement for one-third loss of 200 cakes of soybean meal inasmuch as this was an uninsurable item. Respondent further shows that all of the inventory except the soybean cakes would have been insured by the mover in the event of breakage or damage and that Petitioner had the choice of being moved by a certified mover or moving himself. Respondent further contends that it properly followed the requirements of law and the Petitioner has been offered payment in accordance with law.
Recommendation Deny the petition. DONE AND ENTERED this 16th day of January, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: C. Thomas Holland, Esquire 440 North Main Street Crestview, Florida 32536 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
The Issue Whether Respondent, the University of Florida, discriminated against Petitioner, Tracey Krefting, previously known as Tracey Hardin, on the basis of a handicap as alleged in the Petition for Relief filed by Petitioner.
Findings Of Fact The Parties. The Petitioner, Tracey Krefting, formerly known as Tracey Hardin, is a handicapped individual. She suffers from seizure disorder. Ms. Krefting graduated from the University of Florida in May of 1990. She received a bachelor of science degree with a major in advertising. Ms. Krefting had experience as an advertising sales representative prior to her employment by the Respondent. The Respondent, the University of Florida (hereinafter referred to as the "University"), is a State university located in Gainesville, Florida. Within the College of Journalism and Communications of the University is a radio station, WRUF. WRUF was an auxiliary operation of the University responsible for raising revenue to fund all of its expenses, including the salaries for its sales representatives. No state funding was received directly or indirectly from the University by WRUF. Ms. Krefting's Employment by the University. Ms. Krefting was employed by the University at WRUF on July 28, 1992. Ms. Krefting was employed as "OPS", other personnel services. Ms. Krefting was employed to act as one of six or seven sales representatives of WRUF. As of January 29, 1993, Robert Clark was the General Manager of WRUF. Mr. Clark was Ms. Krefting's supervisor from January 29, 1993 until her termination from employment. Sales Representative Qualifications. The essential function of sales representatives for WRUF was to sell radio time for advertising. This function was an essential function because the revenue necessary to operate WRUF was generated in this manner. Sales representatives were responsible for servicing existing clients and for finding new clients. An essential requirement of the sales representatives of WRUF, including Ms. Krefting, was the ability to travel to the businesses and offices of WRUF's advertising clients and prospective clients. Sales representatives were generally required to spend 80 percent of their working hours out of the office servicing clients and seeking new clients. Continuous contact and an ongoing relationship with clients was required. Contacts with clients were expected to be face to face and not just over the telephone. In addition to being required to make regular contacts with clients, sales representatives were also required to make themselves available to visit their clients with little notice. Obtaining new clients usually required more than one contact with a prospective client by a sales representative. The sales representative was required to sell himself or herself and the station and must gain the trust of the prospective client. Sales representatives were also responsible for performing public service work. This work entailed the providing of public service announcements. The public service work performed by sales representatives did not directly generate revenue for WRUF. Neither the application for employment completed by Ms. Krefting when she was initially employed at WRUF nor the University's OPS personnel requisition form authorizing her employment included any of the necessary skills or qualifications for the sales representative position she was hired to fill. Ms. Krefting was aware at the time she was hired, however, that she would be required to travel to her clients locations and to the locations of prospective clients. There are other means of transportation available which would have allowed Ms. Krefting to reach clients and prospective clients: vehicle driven by a hired driver, public transportation, taxi, and walking. The evidence failed to prove, however, that there were any reasonable means of transportation available to Ms. Krefting other than driving herself which would have allowed her to meet the requirements of a sales representative for WRUF. Ms. Krefting's Handicap. On April 18, 1993, Ms. Krefting fell while rollerskating. Ms. Krefting hit her head on the ground when she fell. On April 19, 1993, Ms. Krefting was admitted to the emergency room of the North Florida Regional Medical Center. The evidence failed to prove that the injury she suffered on April 18, 1993, caused Ms. Krefting to suffer any seizure. On May 6, 1993, Ms. Krefting suffered a seizure while leaving her home to go to work. Ms. Krefting was ultimately diagnosed as having "seizure disorder." At all times relevant to this proceeding, Ms. Krefting suffered from a "handicap." Ms. Krefting's Inability to Drive. On or about May 18, 1993, Ms. Krefting provided a letter from George Feussner, M.D., dated May 18, 1993, to Mr. Clark. In the letter Dr. Feussner indicated that Ms. Krefting was able to return to work but that she could "not operate a motor vehicle " Although Dr. Feussner did not indicate how low Ms. Krefting would be unable to drive, Ms. Krefting informed Mr. Clark that Dr. Feussner had informed her that she would not be able to drive until she was seizure free for one year from the date of her last epileptic seizure, May 6, 1993. As a result of the restriction on Ms. Krefting's ability to drive and based upon Florida law, Rules 15A-5.003 and 15A-5.004, Florida Administrative Code, Ms. Krefting was unable to drive herself to see existing or prospective clients until at least May 6, 1994. Ms. Krefting discussed with Mr. Clark the possibility of hiring a "tenant" of hers to drive her around. Ms. Krefting did not identify the "tenant." Nor did Ms. Krefting inform Mr. Clark that she had completed making arrangements with anyone to drive her. Mr. Clark did not preclude Ms. Krefting from making arrangements to have someone provide transportation for her. Mr. Clark did tell Ms. Krefting that it would have to be determined what implications, if any, a driver would have on WRUF's workers compensation coverage. The resolution of this issue was to be delayed, however, until Ms. Krefting made concrete arrangements for a driver and discussed those arrangements with Mr. Clark. Ms. Krefting failed to finalize any arrangement for a driver. Had Ms. Krefting provided her own driver, at her own expense, Ms. Krefting may have been able to meet the requirement of her position that she be able to provide her own transportation. Ms. Krefting, however, did not take the necessary steps to hire a driver prior to her termination from employment. Ms. Krefting talked to her tenant, Kenneth Vest, about acting as her driver. Mr. Vest worked in the same building that Ms. Krefting did. Mr. Vest worked Sunday through Wednesday from 3:30 p.m. to 1:30 a.m. He was, therefore, generally available for part, but not all, of Ms. Krefting's working hours. Mr. Vest was generally willing to drive Ms. Krefting, if he were compensated. Ms. Krefting did not discuss with Mr. Vest the exact hours that he would be expected to drive her or her schedule. Nor did Ms. Krefting discuss compensation with Mr. Vest. Ms. Krefting failed to prove that Mr. Vest or any other individual was available at any time relevant to this proceeding, or at the final hearing, to provide transportation for her in a manner that would fulfill her responsibilities as a sales representative. Because of the restriction on Ms. Krefting's ability to drive and her failure to make alternative arrangements to have someone like Mr. Vest drive her, Ms. Krefting failed to prove that she met all the qualifications of her position with WRUF. Ms. Krefting did not meet all the qualifications of her position. But for her handicap, however, Ms. Krefting would have met all of the qualifications of a sales representative. The University's Decision to Terminate Ms. Krefting's Employment. On or about May 24, 1993, Mr. Clark informed Ms. Krefting that WRUF could not continue to employ her because of her inability to drive. Ms. Krefting suggested alternative means of meeting her responsibilities with Mr. Clark when she was informed that WRUF would not be able to continue her employment. Mr. Clark considered the suggestions, but did not accept any of them. On June 16, 1993 Mr. Clark agreed to extend Ms. Krefting's termination date to accommodate her efforts to find another postition within the University. Ms. Krefting was ultimately terminated from employment in early July of 1993. Ms. Krefting was terminated because she was prohibited from driving her vehicle and there was no other reasonable means of meeting her responsibilities to service clients and prospective clients. The University's Inability to Accommodate Ms. Krefting's Inability to Drive. During 1993, the financial condition of WRUF was precarious. WRUF was operating at a loss. Three employees had been terminated and a department had been eliminated. Another vacant position had not been filled. WRUF was forced to borrow funds from the University and a foundation account in order to continue operating. At all times relevant to this proceeding, WRUF was unable to create a newly funded position or to allow a sales representative to fail to generate reasonably expected revenues. Ms. Krefting suggested several possible alternatives to accommodate her inability to meet her requirement that she be able to drive. The suggestions were discussed with, and considered by, Mr. Clark. One suggestion Ms. Krefting made to Mr. Clark was to create a new position. The position would entail performing all of the public service work of the sales representatives. Mr. Clark rejected this proposal because it entailed the creation of a new position. The creation of a new position was not a reasonable accommodation. The creation of a new position, especially one that did not generate revenue, would have created a financial hardship on WRUF. The evidence also failed to prove that the public service work could be performed without the need for travel. A second suggestion Ms. Krefting made to Mr. Clark was to restructure her position so that she would be responsible for the preparing of proposals, filing, handling incoming sales calls and telemarketing. In effect, this suggestion also entailed the creation of a new position. This suggestion was rejected by Mr. Clark. Ms. Krefting's second suggestion was not a reasonable accommodation. It would have created an undue financial hardship on WRUF because there was not sufficient work to justify such a position. A third suggestion made by Ms. Krefting to Mr. Clark was that she be teamed with another sales representative who would do all the driving. Mr. Clark rejected this suggestion. Ms. Krefting's third suggestion was not a reasonable accommodation. Teaming two sales representatives would have reduced the effectiveness of two sales representatives who would be available to visit different clients and prospective clients at the same time if they were not teamed. This would have created an undue financial hardship on WRUF. A fourth suggestion made by Ms. Krefting to Mr. Clark was that she use public transportation and taxis. Mr. Clark rejected this suggestion. Although it is questionably whether Ms. Krefting's fourth suggestion constitutes an accommodation, to the extent that it does, it was not a reasonable accommodation. Public transportation does not provide the flexibility required of sales representatives because of the inadequacy of routes and schedules of available transportation. A fifth suggestion made by Ms. Krefting to Mr. Clark was that she provide her own driver. It is questionable whether the use of a driver, as suggested by Ms. Krefting, constitutes an accommodation. To the extent that Ms. Krefting was suggesting that WRUF provide her a driver, her suggestion was not a reasonable accommodation. If WRUF had been required to provide the driver, it would have caused an undue hardship on WRUF. Finally, Ms. Krefting suggested that a student intern from the University's College of Journalism be assigned to work with her and that the intern provide the driving required by her position. Mr. Clark rejected this suggestion. Ms. Krefting had discussed the idea of using an intern with Dr. Joseph Pisani, the Chair of the Advertising Department of the College of Journalism. Although Dr. Pisani was not opposed to the use of an intern-if the intern was properly used-he was opposed to the use of an intern primarily or exclusively as a driver. The suggestion that interns be used was not a reasonable accommodation. Student interns usually are only available to work as an intern for a maximum of 12 hours a week. Additionally, the 12 hours a week that an intern would be available depends upon their class schedule. Therefore, student interns would not be available for a sufficient period of time for Ms. Krefting to fulfill the responsibilities of her position. Although it is not impossible to find a student that would be willing to act as an intern full-time, the evidence failed to prove that it was likely that a student could be found that would be willing to take no classes for up a year or that it would be financially feasible for a student to do so. Mr. Clark did not actually attempt to implement any of Ms. Krefting's proposals. Mr. Clark also did not "consult with any experts" about the proposed accommodations. Mr. Clark's failure to attempt to implement any of the proposals or to consult with experts was not, however, necessary. The issue confronting Mr. Clark was not one involving a decision which required special knowledge or understanding of Ms. Krefting's handicap, or the needs of persons who suffer from seizure disorder. The only issue confronting Mr. Clark was how to accommodate the inability of a sales representative to transport herself to meet the needs of clients and prospective clients. Mr. Clark had all the necessary information to decide how to deal with this issue: Ms. Krefting, regardless of her condition or needs, was prohibited from driving an automobile for at least a year. Mr. Clark was fully aware of the impact of this restriction on WRUF and the resulting inability of a sales representative to carry out their responsibilities. The suggested accommodations made by Ms. Krefting also required no special knowledge or understanding. The suggestions only required an understanding of the needs of WRUF and what was expected of sales representatives. Ms. Krefting's Loss of Income. Subsequent to her termination by WRUF Ms. Krefting remained unemployed until February of 1994. After her termination by WRUF Ms. Krefting received unemployment benefits of approximately $3,500.00 Ms. Krefting earned $800.00 for part-time employment in March of 1994. Ms. Krefting was unable to work from April of 1994 until June of 1994. Ms. Krefting is currently employed. Ms. Krefting's Complaint. Ms. Krefting filed a Charge of Discrimination with the Commission on or about August 18, 1993 alleging that the University had discriminated against her on the basis of her handicap. On or about January 21, 1994, the Commission entered a Notice of Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred. On or about February 17, 1994, Ms. Krefting filed a Petition for Relief contesting the Commission's determination. The Petition was filed with the Division of Administrative Hearings. Conclusion. The evidence in this case failed to prove that the University terminated Ms. Krefting's employment because of her disability. Ms. Krefting was terminated by the University because she could not meet all of the requirements of her position. The evidence failed to prove that the University could reasonably accommodate Ms. Krefting's inability to drive without undue hardship to WRUF's activities. Ms. Krefting failed to prove that the University discriminated against her on the basis of her handicap.
The Issue The issue in this case concerns whether the Florida Department of Transportation's (FDOT's or Department's) proposed action to award a contract to Couch Construction, L.P., is contrary to the agency's governing statutes, the agency's rules or policies, or the bid or proposal specifications.
Findings Of Fact The Florida Department of Transportation (Department) issued an Invitation to Bid (ITB) for road resurfacing on State Road 10/US 90 in Columbia County, Florida; Financial Project No. 208406-1-52-01 (The Project). Four companies submitted responses to the ITB. Couch was low bidder at $2,271,354.81, and Petitioner was second low at $2,278,263.07. The ITB incorporated the plans and specifications for the proposed highway resurfacing. The price proposal specifications stated in pertinent part: Item Number 2102-10. . .Approximate Quantity. . . 4,320.00 hours Item Number 2102-74-1 . Approximate Quantity . . .75,780.00 each day Item Number 2102-99 . . Approximate Quantity . . . 720.00 each day None of the bidders filed a timely objection to the price proposal specifications. Article 2-6, of the Florida Department of Transportation Standard Specifications for Road and Bridge Construction states: A proposal will be subject to being considered irregular and may be rejected if it shows omissions, alternations of form, additions not called for, conditional or unauthorized alternate bids, or irregularities of any kind; also if the unit prices are obviously unbalanced, either in excess of or below the reasonable cost analysis values. After the bids were opened, each bid was reviewed by the Department to determine whether the bid was mathematically and/or materially unbalanced. The Department's Preliminary Estimates Engineer conducts an unbalanced review of the bids to determine if the bids are mathematically unbalanced. A bid is considered to be mathematically unbalanced if the prices quoted are significantly different from the approximate cost of the item to the contractor. It is very common for bids on construction projects to contain some item prices that are mathematically unbalanced. Bid prices that are mathematically unbalanced are considered by the Department to be non-material irregularities if they do not affect the order of the bidders. In determining whether a mathematically unbalanced price is material, the Department follows a policy set out by the Federal Highway Administration (FHWA). The Department has been following the same policy since at least 1992. The FHWA does not allow for materially unbalanced bids to be accepted by the Department on projects that are federally funded. A materially unbalanced bid is one in which there is a reasonable doubt as to whether award to the bidder submitting the mathematically unbalanced bid will result in the ultimately lowest cost to the Department. The Department has developed an Unbalanced Program Logic for its computer analysis of the bids. The program flags the items that are mathematically unbalanced. It flags the item with an "A" for those items that are above the tolerance window, "U" for under the tolerance window, and "F" as front-loaded items. The flagged items which are short-listed by the computer program are sent to the designer of record to verify the quantities and to verify whether the correct pay item was used. The designer of record verified that the quantities were correct for this Project. As part of the bid review, the Department does a statistical average or mean average for each of the bid items. A standard and a-half deviation either side of the mean is established. The bid items outside that standard and a-half deviation, positive or minus, are discarded. The remaining bid items are re-averaged and this second average is referred to as the "serious average." A front-end loaded item is an item for which work is performed early in the contract. Mobilization is considered a front-end loaded item. Couch's Mobilization item 2101-1B was flagged by the computer analysis. The Department did an analysis of the Mobilization item. The Department started with the difference between Couch's bid and the Petitioner's bid on this item, $18,0000.00. That amount was multiplied by the current interest rate, 10 per cent, and then multiplied by a factor of .5, which spread it over half the contract, times 180-day contract period divided by 365, one calendar year. The result was $434.84, which represents the potential advantage that could result from paying the $18,000.00 amount early in the contract. That amount, $434.84, did not materially unbalance Couch's bid. The three items identified by Petitioner as unbalanced (paragraph 3, above) were low and did not present any detriment to the Department. If those three items overran at the rate established, it would be an advantage to the Department. In evaluating unbalanced bids, the Department follows the guidance in a May 1988 memorandum from the FHWA, which addresses bid analysis and unbalanced bids. The memorandum provides that where unit prices for items bid are either unusually high or low in relation to the engineer's estimate of the price, the accuracy of the estimated quantities of the items are to be checked. If the quantities are reasonably accurate, the bid is to be further evaluated to determine whether the mathematical imbalance is materially unbalanced such that there is "reasonable doubt that award to the bidder submitting the mathematically unbalanced bid will result in the lowest ultimate cost to the Government." The analysis of a mathematically unbalanced bid to determine if it is materially unbalanced considers the effect of the unbalanced bid on the total contract amount; the increase, if any, in the contract cost when quantities are corrected; whether the low bidder will remain as the low bidder; and whether the unbalanced bid would have a potential detrimental effect upon the competitive process or cause contract administration problems later. In this case, the Department compared the unit prices (line item prices) by each bidder on the bid proposal sheet to the average unit price for that item. The average unit price is based upon an average of the bidders' unit prices bid for a given pay item and the Department's estimated unit price for that item. If an individual bidder's unit price is significantly greater or less than the average price, the Department's computer flags the item as mathematically unbalanced. Such a bid then receives further evaluation by the Department to ensure the accuracy of the original estimates of the quantities of those items for which an unbalanced unit price has been submitted. The Department also reviews the project plans for accuracy. The more in-depth review is performed to determine if there is a potential for a cost overrun or if there is an error in the Department's estimated quantities which would result in an increased cost to the Department for the project. In this case, Couch and Anderson submitted bid proposals for each of the individual line item prices contained on FDOT's form. Couch's unit price for the off-duty law enforcement item was $0.25/hour. The Department's average price for the off-duty law enforcement item was $25.22/hour. The Petitioner's quotation for off-duty law enforcement was $26.00/hour. The Department's computer analysis of Couch's bid flagged the off-duty law enforcement item as mathematically unbalanced. The quote by Petitioner for the off-duty law enforcement item was not unbalanced, and therefore was not flagged for further review by the Department. The same analysis was applied to the barricades and variable message sign items, with similar results. The Department also did an in-depth review of item 2101-B, Mobilization, for front-end loading. The result of that analysis was that, as a result of front-end loading, there was the probability of increased cost to the Department of $443.84. This small increase in the cost to the Department was not large enough to change the order of the bidders. Therefore, it was not a materially unbalanced item. The Department then made a more in-depth review of the three mathematically unbalanced items in Couch's bid and determined that none of those items were materially unbalanced, because none of them had the potential to increase the cost to the Department and none of them had the potential to change the order of the bids. In sum, the Couch bid was not materially unbalanced. The evidence in this case is insufficient to support a basis for rejecting the Couch bid.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Florida Department of Transportation issue a final order in this case dismissing the Petitioner's Formal Protest and Request for Hearing; denying all relief requested by the Petitioner; and awarding the subject contract to the Intervenor, Couch Construction, L.P. DONE AND ENTERED this 7th day of May, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 7th day of May, 1999.
