The Issue The issue posed herein is whether or not the Respondent, Sherba Brothers, Inc., owes the Petitioner wages in the amount of $1,446.62 based on Respondent's failure to comply with the prevailing wage rate as set forth and defined in Chapter 215.19, Florida Statutes. Based on the entire record compiled herein, including the testimony of the witnesses and their demeanor, I make the following:
Findings Of Fact The Petitioner, Aldine Clinton Carter, Jr., was employed by Sherba Brothers, Inc., from approximately May 27, 1976 to October 14, 1976 as a licensed electrician (Dade County). The project in which the Petitioner was employed is the Dade County Courthouse, Project No. 4169, Code 915-018001 which entailed the complete renovation of the 12th floor. The Petitioner was employed by Respondent approximately 39 days, 2-1/2 hours, receiving wages of One Thousand Nine Hundred Thirty-Four Dollars and Twenty-Five Cents ($1,934.25). The prevailing wage rate for electricians in the subject area is Ten Dollars and Seventy-Five Cents ($10.75) which based on the work period involved here i.e. 39 days, 2-1/2 hours times the prevailing hourly rate equals Three Thousand Three Hundred Eighty Dollars and Eighty-Seven Cents ($3,380.87). This figure represents a difference of One Thousand Four Hundred Forty-Six Dollars and Sixty-Two Cents ($1,446.62) which as stated is the amount claimed by the Petitioner as now being due and owing. The Respondent offered no evidence to contest the fact that the Petitioner was in fact, employed as an electrician on the subject project. Some testimony was adduced by Respondent for the purpose of establishing that Petitioner was classified as a second or third class electrician. The proof falls short in this regard. There was no testimony establishing that there in fact exist such a classification(s) and the job classifications listed in the specification book for this project list only an electrician classification at the hourly rate of Ten Dollars and Seventy-Five Cents ($10.75). It is undisputed that the Petitioner is licensed as an electrician. Therefore, for purposes of this proceeding, I conclude that the Petitioner was in fact employed as a licensed electrician while employed by Respondent. However, the Respondent contends that as a nonunion subcontractor, it was not obligated to pay the prevailing wage rate and that the Petitioner was aware of this when he accepted the job for the lower wages. 1/ Secondly, the Respondent contends, that in any event the Petitioner failed to timely file an affidavit in protest of the asserted "noncompliance" as is set forth and defined in Chapter 215.19(3)(a)(1), Florida Statutes. In this regard, the last date the Petitioner was employed by Sherba Brothers was October 14, 1976. On October 31, 1976, the Petitioner sent a letter to the Public Works Department, protesting the fact that he was not paid the prevailing wages. That letter was forwarded to the administrative agency for that project and the county architect, Alf O. Barth, advised Petitioner, by letter dated November 15, 1976, that while his letter of October 31, 1976, contained the essential information regarding his claim, his letter was not notarized as required by state law. The general contractor, Rainey Construction Company and the subcontractor, Sherba Brothers (Respondent) were both notified by copy of Mr. Barth's letter to Mr. Carter that the amount as claimed by him was being withheld from their final payment until a final determination had been made on Petitioner's claim. Two days later on November 17, 1976, the Petitioner forwarded a notarized letter to the parties involved. The Petitioner testified that he made numerous inquiries from various project employees seeking to ascertain if in fact the Respondent was obligated to pay the prevailing wage rate. According to his unrefuted testimony, it was only after he left the Respondent's employ that he was able to determine that Respondent was indeed obliged to pay prevailing wages. This determination came through a communique from Messr., Luther J. Moore, Administrator of Prevailing Wage. The Respondent failed to introduce evidence showing that the prevailing wage rate was posted on this project during the period in which the Petitioner was employed. By so doing, the Petitioner urges and is now claiming that be was thwarted in asserting his rights under the prevailing wage law.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Respondent shall pay the Petitioner the sum of $1,446.62 as claimed in the petition filed herein. RECOMMENDED this 7th day of April, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact On October 30, 1985, the Florida Department of Transportation (FDOT) received bids on State Project 30010-3528 (Project) which is not a federal aid project. The Project was posted for award to White Construction Company, Inc. (White) on December 9, 1985 and formally awarded to White on December 12, 1985. The Project was a typical resurfacing job that consisted of improvement to drainage structures; resurfacing of U.S. Highway 19 in Dixie County from the south city limits of Cross City northerly for approximately 8 miles, including the milling of the existing asphalt and replacing it with recycled asphalt; placing new pavement markings, placing new guardrails; and placing sod strips. At the time bids were received for the Project, Columbia Paving was resurfacing U.S. 19 adjacent to the Project. Because Columbia Paving already had an asphalt plant set up adjacent to this Project, White knew it would have to submit a conservative bid in order to be the low bidder on the Project. The contract required the Project to be completed within 205 calendar days. The bidders know the contract time limitations at the time bids are received. The number of calendar days established in the contract are calculated by multiplying the number of estimated work days by a factor of 1.825, which represents an allowance for one day per week for weather, weekends and holidays. The bid documents also give the contractor the time frame for award and execution of the contract, issuance of the notice to proceed, and the initiation of charged contract time. White executed the contract on December 23, 1985, and FDOT executed the contract on January 2, 1986. Under the terms of the contract, a preconstruction conference was to be held soon after award of the contract, and the notice to proceed was to be issued within 30 days after execution of the contract by FDOT. The preconstruction conference was held on January 2, 1986, at the FDOT Construction Office in Chiefland, Florida. None of White's subcontractors attended the conference. Judd Gilmer of White stated that White would not start work before April 1, 1986. At the preconstruction conference, there was no mention of any problem with obtaining an asphalt site. The notice to proceed was issued on January 31, 1986, which stated that contract time would start 61 days from date of the notice. The 60 day time period is allowed for the contractor to secure materials, secure aggregate, and to secure and set up an asphalt plant site. Although the contractor's progress schedule was required to be submitted within 30 days of the preconstruction conference, White did not prepare a progress schedule until June 4, 1986, some 65 days after the work was to commence on April 1, 1986, and approximately 5 months after the preconstruction conference. By letter of January 2, 1986, White submitted its Sequence of Operations proposal which called for erection of concrete barriers, signs, and barricades necessary for construction of the southbound lane, with construction of the drainage structures to follow. The letter also stated White would obtain all permits necessary for operation of the asphalt plant. A Quality Control Plan, dated February 4, 1986, was submitted by White for the asphalt plant operations. The Plan stated an Aztec Drum Mix Asphalt Plant would be used for the project. A revised Quality Assurance Plan was later approved in July for the Chiefland batch plant. The contract places responsibility for locating an asphalt plant site and obtaining all appropriate permits on the contractor. White took no action to look for or obtain an asphalt plant site prior to award of the contract. At the time of submitting bids on the project, and on the date contract time began to run, White had an asphalt plant set up in Chiefland which could have been used to build the project. White made a conscious business decision not to use the Chiefland plant site and decided on finding a closer plant site for the Project and bid accordingly. White made little effort to secure a plant site between the award of the bid on December 12, 1985, and March 14, 1986, except for some oral agreement with a Mr. Crapps for the use of his property. Although White requested a zoning change on this property from the Dixie County Board of County Commissioners, which was approved on April 3, 1986, White never pursued a building permit for the asphalt plant on the Crapps property. White entered into an asphalt plant site lease with Anderson Contracting Company on April 17, 1986, but as early as March 18, 1986, White had requested approval from the Department of Environmental Regulation to relocate its Chiefland plant to the site leased on April 17, 1986, from Anderson. The request was approved on May 9, 1986, but the plant site did not become available until May 16, 1986. White's initial Quality Control Plan had called for the use of an Aztec drum plant, which is a portable plant which can be set up easier than the batch plant White had in Chiefland. At some point in time, White decided not to use the Aztec plant and chose to move the Chiefland plant to the job site and convert it to a recycling plant. The Aztec plant was then moved for use on another project. The normal time frame is 2-3 weeks to set up a plant and 3-6 weeks to get materials. Materials can be delivered to the site once the layout of the plant is established. It took White from May 16 to July 8 for White to get set up, a total of over 7 weeks. White did not begin any asphalt work until July 8, 1986, contract day 99. Any delay in White's performance under the contract before or after May 16, 1986, other than the 46 days for which FDOT granted an extension, that resulted from White being unable to secure an asphalt plant site was within White's control. Therefore, White is not entitled to any further extension of time due to the delay in securing an asphalt plant and bringing the plant into operation. Contract time began April 1, 1986. White's survey crews were present on the job site on June 10, 11, and 12, 1986, and signs were placed on June 17, 1986, but no actual work was done until July 2, 1986, calendar day 93. The first construction operation was milling performed by J.E. Hill Milling. Milling had to be done first to produce material for recycling into asphalt. The asphalt work was completed on November 5, 1986, contract day 219, but a 30- day curing period is required before the pavement markings and striping can be done. Paving markers were completed on January 7, 1987, contract day 282. Time was not suspended after completion of the asphalt work because drainage safety improvements were not finished. Traffic was impeded during concrete pours, with traffic restricted to one lane. There was insufficient evidence to prove that the contract time should have been suspended after the asphalt was finished and drainage work was in progress. The bid document, which later comprised the contract, required White to subcontract at least 10% of the total contract work to a disadvantaged business enterprise (DBE) certified by FDOT as meeting DBE requirements. FDOT listed the area of work they performed but did represent that the DBE was qualified to perform the work. White obtained several quotations from DBEs to perform drainage work on the Project but selected Hardan Construction Company (Hardan) who gave the lowest quote. White was neither familiar with Hardan, nor did White discuss Hardan's work with other contractors before using Hardan in the bid. White had no contract with Hardan prior to time beginning to run on the contract. White had attempted unsuccessfully to contact Hardan by phone in March, 1986, and then in early April mailed a set of subcontract documents to be executed. White did not receive a response, so they once again tried to contact Hardan by telephone and after repeated attempts did reach someone who said the executed documents had been returned. After the documents were not received and unsatisfactory responses were made by Hardan, White sent a second set of contract documents on May 7, 1986. This was over a month after contract time began to run. At one point White was told that Hardan was going out of business, but the next day was told Hardan would do the work. This went on for several weeks. Mr. Hardan came in person to White's offices on May 29, 1986, and signed the contract. A request to sublet was sent to DOT for approval. Hardan gave a date it would go to work, so construction signs were erected, but Hardan failed to show. Hardan was ultimately given a deadline to report to work, but once again failed to show. On June 26, Nancy Bennett, Vice President of White, contacted Ronald Layfield, FDOT's Resident Engineer, concerning Hardan and was told to contact the FDOT's Minority Affairs Office in Tallahassee. Upon contacting the Minority Office that day was told how to terminate the DBE and how White must make good faith attempts to fulfill the DBE goal. On June 26, Hardan was notified by telegram that the contract was terminated. After defaulting Hardan, White contacted a number of DBEs for quotes for the drainage work. White was familiar with the quality of work of these DBEs, but rejected their prices as being too high. One quote was received from J.E. Hill, which was already working on the project. White then contacted Carpio- Walker (C-W), who was being used by White as a DBE on a Broward County job. Negotiations went on for about a month before a contract was finally executed between White and C-W on July 24, 1986. The prices in C-W's contract were basically the same as in Hardan's, except White had to furnish certain equipment and material at no cost. C-W was unable to assure completion within the contract time, so a provision was put in the contract that C-W was not responsible for liquidated damages. There was nothing in the contract telling C-W to do the work within the contract time or on a priority basis, nothing about minimum manpower, nothing about additional crews, and nothing about when to come to work. The contract did provide for White to assist in paying for overtime work, but there was no evidence any overtime was ever paid. Some time after August 6, 1986, White submitted a Request to Sublet form to FDOT to approve C-W. White was told it needed a revised Form 1, so on August 29th, White submitted the revised Form 1 to Tallahassee FDOT for approval. It was approved on September 8, 1986. White never requested approval from FDOT for C-W to start work before all forms were approved. FDOT did nothing to delay the substitution of DBE subcontractors. There was no more delay than normal mobilization time before C-W went to work. C-W came on the job when they said they would be there. C-W first moved onto the project on September 15, 1986. The DOT Resident Engineer encouraged White to do the drainage work early on in the project. There was sufficient good weather to complete the job within the original contract time. The job was especially dry during the initial months of the contract. However, once C-W moved onto the job, there were times that wet weather had an effect on the drainage work because the water had to be pumped down to work on the footings. The high water did not prevent the drainage work. C-W normally had only one crew working on the drainage and they would not work on more than two culverts at a time. Nothing in White's contract prohibited work by a subcontractor with multiple crews. C-W's work was delayed by equipment breakdowns and manpower deficiencies some 20 days between September 15, 1986 and March 27, 1987, when the job was completed. Although White gave Hardan the maximum opportunity to compete for, and perform on, the subcontract, and made a good faith effort to replace Hardan so as to fulfill the DBE goals, any delay suffered by White in fulfilling its performance under the contract that resulted from White being unable to secure Hardan's performance, and subsequently any delays that resulted from C-W's inability to perform due to rain, inadequate equipment or personnel or otherwise was within White's control which White failed to properly exercise. Therefore, White is not entitled to any extension of time on the contract for the problems encountered with Hardan or C-W. FDOT issued a preliminary notice of delinquency on June 5, 1986. June 5, 1986 was the 66th of 205 contract days, which meant 32% of the contract time had expired, and at that point O% of the work had been done. On June 23, 1986, White requested a time extension of 158 days. The request sought additional contract time for the alleged delay of Dixie County in approving the plant site and for the failure of Hardan to go to work. White represented that Dixie County had taken no action on the plant site approval. June 23, 1986, was the 84th contract day. On June 26, 1986, Mr. Layfield requested further documentation on the time request and the search for the asphalt plant site. No response was received from White, so FDOT issued a final delinquency notice on July 24, 1986. Since on July 24, 1986, 56% of the contract time had expired with only 17% of the work completed, the percentage of dollar value of completed work was not within 20% of the percentage of contract time expired. Although the extension subsequently granted by FDOT would have changed the percentage of contract time expired, this change would not have brought the percentage of dollar value of completed work within 20% of the percentage of contract time expired. On January 5, 1987, White submitted a response to Mr. Layfield's June 26, 1986 letter. White requested a time extension of 103 days for difficulty in obtaining a suitable asphalt plant site; 55 days for problems with DBE subcontractors; 39 days for rainfall and wet conditions; and 37 days for additional work, for a total of 234 calendar days. The original contract time expired on October 22, 1986, which was the 205th contract day. On April 16, 1987, FDOT granted a time extension of 59 days. Forty- six days were allowed for the permit problem and was the contract time from April 1, 1986, contract day 1 to May 16, 1986, contract day 46, the date the site was made available to White. This gave White 106 days for setting up a plant; the 60 days built into the contract, plus the additional 46 days extension. Five days were granted for additional work. Eight days were granted for rain. Rain days were calculated by taking the total number of rain days beginning on day 1 of the contract time through the 251st day (205 plus 46) and subtracting the rain days occurring on weekends and 1 day per week for rain already built into the calendar day formula. There was no adjustment by FDOT to bring the 8 work days lost to calendar days. Converting work days to calendar days is accomplished by multiplying work days by a coefficient of 1.4. Using the coefficient of 1.4 takes into consideration the weekends (365 - 102 = 261. 365 divided by 261 = 1.4). Subsequent to the hearing, the parties agreed that an additional extension of 6 days should be added to the 59 days already granted for a total of 65 days. The extension granted by FDOT does not provide for rain days beyond the 46 days extension for locating the asphalt plant site. Since essentially White was not on the job until the 93rd day and no work was lost due to rain or conditions caused by rain, the more accurate method of calculating any loss of time due to rain that is beyond White's control would be to start on the 93rd day. Starting on the 93rd day and ending on the 262nd day (205 plus 46, 5 and 6) there were 41 days of work lost due to rain, not counting rain on weekends. Subtracting 25 days for the days already built into the formula (25 weeks - 1 day per week) from 41 days lost, equal 16 days which when multiplied by the coefficient of 1.4 equals 22 days and should extend the contract 22 days. This 22 day extension, up to day 284, had 6 days of rain, minus 3 days for days already built into the formula equals 3 days. When the 3 days are multiplied by the coefficient of 1.4, it equals 4 days more than the contract should be extended. These 4 days produce no additional time for rain days. Since this extension fell on January 13, 1987, the 288th day, White should be granted an additional 6 days for days White did not work during Thanksgiving, Christmas and New Years and was not given an extension for. This would bring the total contract time to 294 days. The adjusted contract time expired on January 19, 1987. The project was recommended for final acceptance on April 8, 1987, contract day 373, for a difference of 79 days. There was insufficient evidence to show that White did not have sufficient equipment, personnel, or finances to timely complete the Project. A Final Order was entered by the Florida Department of Transportation on April 4, 1988, in the case of White Construction Company, Inc. v. Florida Department of Transportation, Case No. 87-3811, finding the White Construction Company, Inc., delinquent on Project Nos. 61989-3522 and 61080- 3523 and suspended White's Certificate of Qualification for 4 days.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Florida Department of Transportation enter a Final Order finding White Construction Company, Inc., delinquent in the prosecution of its work on State Project No. 30010-3528 for 79 days and that its Certificate of Qualification be suspended for 79 days, plus an additional three (3) months at the expiration of the 79 day suspension. Respectfully entered and submitted this 2nd day of August, 1988, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-3302 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1.- 2. Adopted in Findings of Fact 1 and 2, respectively. 3. Adopted in Finding of Fact 3. 4. Adopted in Findings of Fact 4 and 5. 5.- 22. Adopted in Findings of Fact 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24 and 25, respectively. Adopted in Findings of Fact 26 and 27. Adopted in Finding of Fact 24. Adopted in Findings of Fact 27 and 30. 26.-29. Rejected as being an argument rather than a finding of fact. 30. Adopted in Finding of Fact 31. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1.-2. Adopted in Findings of Fact 1 and 5, respectively. 3. Adopted in Findings of Fact 26 and 27. 4.-5 Rejected as not being material or relevant to any determination in this proceeding. 6.-7. Rejected as not being material or relevant to any determination in this proceeding particularly in light of the asphalt being completed within the contract time plus the 46 day extension. Rejected as not being supported by substantial competent evidence in the record. The date the milling process began and the asphalt was completed is adopted in Finding of Fact 12. The balance of paragraph 9 is rejected as not being supported by substantial competent evidence in the record. Rejected as not being relevant or material because there was a lack of substantial competent evidence in the record to show that the delays were not within White's control and thereby thru no fault of White. 11-12. Adopted in Findings of Fact 13 and 23, respectively. Rejected as not being material or relevant to any determination in this proceeding since White's efforts in the early stages of the contract were "too little, too late". Adopted in Finding of Fact 17. 15-16. Adopted in Finding of Fact 18 but clarified. 17-18. Adopted in Findings of Fact 19 and 20 but clarified. The first sentence is adopted in Finding of Fact 21. The second sentence is rejected as not being supported by substantial competent evidence in the record. Adopted in Finding of Fact 21. The first sentence is rejected as being an admission a witness and not necessarily a finding of fact and is not supported by substantial competent evidence in the record. The second sentence, although a statement of what a witness agreed to, is supported by the record and adopted in Finding of Fact 21. Adopted in Findings of Fact 24 and 25. Rejected as not being material or relevant to any determination in this proceeding. Adopted in Finding of Fact 24 but clarified. Rejected as not being material or relevant to any determination in this proceeding. Rejected as being an argument rather than a finding of fact. Rejected as not being supported by substantial competent evidence in the record. Rejected as being an argument rather than a finding of fact. White's problems with obtaining performance by Hardan and White's responses to those problems are set out in Findings of Fact 14, 15, and 16 and do not reflect White's "extraordinary effort". The last 2 sentences are rejected in that there is no substantial competent evidence in the record to support the position that delays on the drainage portion were due to factors beyond White's control and therefore rejected. Rejected as not being material or relevant to any determination in this proceeding. Rejected as being argument rather than a finding of fact. Adopted in Finding of Fact 29 with the exception that White did work on the day of Thanksgiving. Rejected as not being material or relevant to any determination in this proceeding. Rejected as not being material or relevant to any determination in this proceeding because without specific days of rain no determination of days loss can be calculated. Adopted in Finding of Fact 26 with the exception of the coefficient of 1.825 which is rejected for reasons set out in Finding of Fact 26. 36.-37. Adopted in Finding of Fact 28 and 29 but clarified to use the correct coefficient and the correct work days loss due to rain or conditions caused by rain. There is no numbered paragraph number 38. Rejected as not Supported by substantial competent evidence in the record. Adopted in Finding of Fact 32. Rejected as not being material or relevant to any determination in this proceeding. COPIES FURNISHED: Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Attention: Eleanor F. Turner, M.S. 58 Samantha Boge Cummings, Esquire Post Office Box 589 Tallahassee, Florida 32302-0589 Robert I. Scanlan Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Thomas H. Bateman, III General Counsel Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458
The Issue The issue for determination is whether Petitioner was subjected to discrimination in the work environment by Respondent due to Petitioner's gender in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner was employed as a payload operator by Respondent, a fertilizer manufacturer, at the time of her employment termination in August of 1996. Petitioner’s job duties included scooping fertilizer onto the pay loader, or front-end loader, and dropping the fertilizer into a “hopper” for subsequent loading into rail cars. Petitioner was expected, along with other payload operators, to perform other duties, including the cleaning of work areas when she ceased her loading function. During Petitioner's employment, a union contract existed between Respondent and the International Chemical Workers Union of which Petitioner was a member. The union contract governed overtime assignments, pay structure, shift structure, disciplinary/termination procedures and lay-offs, among other things. Respondent paid Petitioner and gave her breaks, contrary to her allegations, in the same manner as other employees. Governed by the union contract during the busy 1995-96 period, Respondent assigned work to employees on many different shifts. The plant operated 24 hours a day, seven days a week. Overtime requirements were based on business necessity. All employees worked the same number of hours regardless of the shift to which they were assigned. Petitioner never formally complained to anyone regarding displeasure with shift assignments. Neither salary nor number of work hours were affected by Petitioner’s assignments to different work shifts. Petitioner and other employees worked the same number of hours. Petitioner took breaks just like other employees. Changes from shift to shift experienced by Petitioner had nothing to do with her gender. The union contract governed how Respondent assigned overtime to its employees. The contract established a procedure that distributed overtime hours evenly and fairly among all of Respondent's employees. Those procedures were adhered to by Respondent and all employees were given overtime opportunities in an equal manner without regard to gender. On one occasion, Petitioner complained about her overtime assignment. She felt that she should have been called into work on a day when another operator (male) was called to come in and work. Respondent had attempted to contact Petitioner at contact numbers provided by Petitioner, without success. Safety equipment was distributed to all employees. Petitioner signed a check list indicating that she had received or knew how to request safety equipment. A pair of boots requested by Petitioner on one occasion had not yet arrived, but did arrive before the conclusion of the business day. The delay in delivery of Petitioner's requested boots to her was not related to her gender. Petitioner complained that adverse comments were made to her on the job by male workers. The alleged comments ranged from women should only do "clean up work" to "if you don't smoke or drink, we don't need you in this department." All of the alleged comments were roundly denied by Petitioner's co-workers at the final hearing. The credibility and candor of the testifying co-workers establishes that the adverse comments were not made. One incident in which Petitioner complained about her work assignment resulted in the general foreman's immediately contacting Respondent's human resource department. A meeting was then held with Petitioner to address the situation. The foreman felt confident that Petitioner would voice any additional concerns if the situation did not change. Petitioner never voiced further concerns to the foreman. Petitioner alleged that she was denied the right of free speech at a meeting attended by her, Respondent representatives, and union representatives. As established at the final hearing, she was told by the union representative to remain quiet and let him do the talking if Respondent representatives made Petitioner angry. However, the union representative did not instruct Petitioner to otherwise remain silent. Under the union contract, Respondent could terminate employees who received three reprimands within a 12-month period. Petitioner was aware of this procedure. Petitioner had numerous instances of work-related misconduct and received more than three reprimands in a 12-month period. Counseled on June 4, 1995, for damaging a payloader, Petitioner received a reprimand on July 18, 1995, for again damaging a payloader. Petitioner was counseled again on August 14, 1995, for failure to communicate with the shipping operator. On October 16, 1995, Petitioner received a second reprimand for poor work performance for mixing discarded product with good product, a violation of Respondent policy. Petitioner received her third reprimand on February 28, 1996, for loading hot fertilizer, a violation of Respondent's policy. The difficulty of loading fertilizer before it cooled was the later removal of the hot product which would harden upon cooling into a concrete-like substance. Petitioner was given a second chance and not fired upon receiving her third reprimand in a 12-month period. Management hoped that Petitioner would seek to improve her work performance. Petitioner refused to help clean the plant on July 10, 1996, and was counseled by her supervisor. On July 25, 1996, she received a verbal warning for failure to report an accident. In August of 1996, Petitioner received her final reprimand for failure to attend a company meeting at the proper time and for again loading hot product. Petitioner's employment was terminated. The various reprimands imposed on Petitioner were from different supervisors at different times. None of the reprimands were based on Petitioner's gender. After a complete review of Petitioner's case, the union representative determined that Respondent had properly terminated her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 12th day of October, 2001, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 12th day of October, 2001. COPIES FURNISHED: Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Artie Johnson 2672 Northwest 6th Drive Jennings, Florida 32053 Mary L. Wakeman, Esquire McConnaughhay, Duffy, Coonrod, Pope, and Weaver, P.A. Post Office Drawer 229 Tallahassee, Florida 32302-0229 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Olin Scott Stoutamire is required to repay monies paid to Olin Scott Stoutamire as salary, which is alleged by the Department of Transportation (DOT) to be excess salary.
Findings Of Fact Petitioner is an agency of state government. The Respondent is a career service employee of the Petitioner, and is employed at a site located away from the Petitioner's District Office in Chipley, Florida. The Respondent is the Project Manager of the Petitioner's Thomasville Road and Interstate 10 Intersection Improvement Project in Tallahassee, Florida. The Respondent is paid less than other Petitioner's Construction Project Managers because the Respondent has less tenure. The Respondent's supervisor told Respondent that he would try to correct what appeared to be a salary inequity. The Petitioner initiated a raise for Respondent equal to 5 percent of the Respondent's base rate of pay. The proposed 5 percent salary increase was initiated by his supervisor completing and submitting an "Employee Action" form. The form provides the employee's identification, position, and includes the employee's current base pay rate and the calculated pay rate after the proposed increase becomes effective. The Respondent's base rate of pay and the resulting calculations as to the proposed resulting pay increase were incorrect on the Employee Action form submitted to the Petitioner's Personnel Office (Personnel) in Chipley, Florida. Personnel detected the supervisor's error, but then committed its own error, resulting in an $80 bi-weekly overpayment. The Respondent noticed the apparent overpayment and inquired of his supervisor if there had been a mistake. Respondent told his supervisor that he did not want the State to seek reimbursement for a large amount at a later date. The Respondent's supervisor told Respondent that the payment was correct and to accept it. The Respondent asked him to check and be certain because he did not want to have to repay the money. A short time later, the Respondent's supervisor told Respondent to accept the total amount of the warrant as being correct. His supervisor mentioned other pay increases for which the Respondent was being considered during the same time that the 5 percent pay increase was being processed. The Respondent thought that his supervisor had checked with personnel, and that his pay was correct. The Petitioner did not become aware of the error until an overpayment of $1,200 had accumulated. The Petitioner's Office of Financial Services requested reimbursement in the amount of $771.15 as payment in full within ten days or a payment of $117.00 biweekly pursuant to Sections 110.205(2) and 216.251, Florida Statutes and Chapter 60L-8, Florida Administrative Code. The Respondent's salary was immediately adjusted to show the correct amount. The Respondent contends he did his best to determine if he was being overpaid and was assured the payment was correct. The Respondent changed his budget and spent the money in reliance upon the assurance that the payment to him was correct. The Respondent concedes that Petitioner's records reflect an error and an overpayment. However, the Respondent does not believe he should have to repay the money immediately or in amounts greater than he received the overpayment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent repay $40 per pay period to the Department beginning on the effective date of the next annual pay raise and continuing each month thereafter until the overpayment is repaid. The Department refer the case to the Department of Banking and Finance if an agreement cannot be reached. DONE AND ENTERED this 9th day of July, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1997. Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 34399-0458 Olin Scott Stoutamire 63 Graham Trail Crawfordville, Florida 32327
Findings Of Fact Genaro H. Rodriguez, Petitioner, was employed by Y.A.C. Electric Corporation, Respondent, as an electrician on the City of Miami Fire Station #5 project during the period February 1976 through September 1977. He did not work on this project every working day during this period. During most of the period involved Petitioner held a Dade County license as a journeyman electrician. Before the job was completed he was licensed as a master electrician. Petitioner was the electrical foreman on the job for Respondent. This project came under the Prevailing Wage law. While working on this project Petitioner was paid $6.50 per hour and later $6.75 per hour. The prescribed prevailing wage for electricians on this project was $10.75 per hour. The difference between the amount Petitioner received while working on this project and the prevailing wage he should have received is $2,429.65. F. Bilboa and Associates was the general contractor on this project and Y.A.C. Electric Corporation was a subcontractor for the electrical work. At the commencement of the project Respondent advised its employees that they would be paid less than the prevailing wage while the work was in progress and when the work was completed they would be paid the difference in a lump sum between what they had been paid and the prevailing wage. Respondent had been a subcontractor with General Electric as prime contractor on an earlier prevailing wage job and pursuant to a similar agreement the prime contractor paid the lump sum difference to the workers to satisfy the prevailing wage law at the completion of the project. In this case, Respondent has been unable to collect what is owed him by the prime contractor and has, therefore, not fulfilled his agreement with Petitioner.
Findings Of Fact David G. Tracy is, and at all material times has been, an employee of the Respondent, and a public employee within the meaning of Florida Statutes s. 447.203(3). The Firefighters Union is, and at all material times has been, an employee organization within the meaning of Florida Statutes s. 447.203(10). The Respondent is a public employer within the meaning of Florida Statutes s. 447.203(2). The Respondent and the Firefighters Union have been engaging in the collective bargaining process since prior to October, 1973. The parties first entered into a collective bargaining agreement on October 16, 1973. 1/ A second agreement was adopted on March 4, 1975. 2/ This latter agreement was retroactively effective from the first day of October, 1974 until October 1, 1975. The collective bargaining relationship that existed between the Firefighters Union and the Respondent, and the contracts promulgated by them were undertaken in accordance with the Firefighters Bargaining Act, Florida Statutes (1973) 447.20 et seq. In 1972, the Respondent adopted a merit pay plan as a part of its general pay plan. The merit pay plan was adopted by ordinance of the City Commission, but it was not immediately funded. The merit pay plan was funded by the Respondent for the first time in March, 1975, retroactive to October 1, 1974. The merit pay plan as adopted, and as funded, applied to all employees of the Respondent. The merit pay plan was specifically included as part of the second agreement between the Respondent and the Firefighters Union. 3/ In accordance with the second agreement, which was then in effect, the Firefighters Union advised ,the Respondent that it wished to renegotiate 12 of the 36 articles contained in the agreement by letter dated May 22, 1975. 4/ Negotiations commenced during the month of June, 1975. Mr. John Kooser, the Respondent's Assistant City Manager, represented the Respondent at the initial bargaining sessions. Among the articles which the Firefighters Union was seeking to renegotiation was Article 14, Wages. Article 14 included the reference to the merit pay plan. At the initial sessions the Firefighters Union indicated that it was requesting an across-the-board pay increase, and a grade increase for rescue drivers. The Firefighters Union did not mention the merit pay plan at the sessions. Mr. Kooser did not respond to the specific requests pertaining to wages, and raised nothing respecting the merit pay plan. During July, 1975, Diane Schiffman, the Respondent's Personnel Director, became the Respondent's chief negotiator. During the time that Ms. Schiffman served as chief negotiator, the merit pay plan was not raised as an issue at bargaining sessions. Herbert Mintz, an attorney, became the Respondent's chief negotiator on July 31. The merit pay plan was not raised as a subject for bargaining during any of the negotiating sessions attended by Mr. Mintz prior to October 3, 1975. The merit pay plan was discussed at a negotiating session on September 10, 1975; however, it was not discussed as a subject for bargaining. A City Commission meeting had been conducted on September 9, 1975, and on September 10, 1975 Mr. Mintz asked the Firefighters Union representative what had transpired at that meeting respecting the merit pay plan. On or about August 15, 1975 John Kooser, then acting city manager of the Respondent, presented his budget submission message to the Mayor and City Commission for the fiscal year 1975-76. 5/ Mr. Kooser therein stated: "I recommend that merit increases for FY 75-76 be suspended and to support this action they have not been budgeted in the FY 75-76 budget." A copy of the proposed budget was delivered to the Charging Parties. Mr. Tracy in turn delivered the proposed budget to a private consulting firm. The merit pay plan was not budgeted in the proposal; however, neither Mr. Tracy nor any other representative of the Firefighters Union deciphered that fact from the proposed budget. The consulting firm did not so advise the Charging Parties. Whether the merit pay plan would be implemented for the 75-76 fiscal year was a topic for discussion at a City Commission meeting on September 9, 1975. Mr. Gauthier, as a representative of the Firefighters Union, addressed the City Commission at that meeting, and argued forcefully in favor of maintaining the merit pay plan. It is apparent that Mr. Gauthier was aware that the Respondent was considering suspending the merit pay plan for all employees, including firefighters. Mr. Gauthier and Mr. Tracy testified that they believed the Respondent was considering suspending the merit pay plan only for employees other than firefighters. It is apparent, however, from the comments that he made at the City Commission meeting on September 9, that Mr. Gauthier did know that the Respondent was considering suspending the plan for all employees. From other comments made at the meeting and from the totality of the circumstances, Mr. Gauthier should have known what the Respondent was planning, and his testimony that he did not is not creditable. At a meeting conducted on October 1, 1975 the Respondent's City Commission suspended the merit pay plan for the 1975-76 fiscal year, effective on that date. No impasse had been reached in negotiations respecting the merit pay plan on October 1, and indeed, the merit pay plan had not been actively negotiated. It has not been shown that suspension of the merit pay plan was a matter of fiscal necessity for the Respondent. The Charging Parties did not learn of the action until October 3. A negotiating session had been scheduled for October 3, 1975. The parties met on that date. Mr. Tracy, representing the Firefighters Union expressed outrage at the Respondent's action. He expressed the position of the union that only those matters raised in General Counsel's Exhibit 2 were open for negotiation, and that the merit pay plan was not among those items. Mr. Mintz, as the Respondent's chief negotiator, expressed the Respondent's position that all issues were open for negotiation. No specific discussion was had respecting future reinstatement of the merit pay plan. The meeting did not last long. It terminated when Mr. Tracy walked out. Since October 3, 1975, the parties have engaged in several negotiating sessions. The Respondent has made no specific proposals respecting the merit pay plan other than to note in a proposed contract that the plan had been suspended. 6/ The Respondent has not, since October 3, 1975, either formally or informally refused to bargain respecting the merit pay plan, and has, in fact, been willing to do so. The Charging Parties have not requested that the merit pay plan be negotiated, but have rather rested on their earlier position that the merit pay plan is not properly a matter for negotiation, and should be reinstated retroactively to October 1, 1975. At the time that the complaint was filed by the General Counsel, the merit pay plan had not become an active matter of negotiation. The parties may have reached an impasse as to whether the merit pay plan is properly a subject for negotiation. Contracts negotiated between the Firefighters Union and the Respondent for the 1973-74 and 1974-75 years were not adopted in accordance with the provisions of the Public Employees Relations Act. Florida Statutes s. 447.201 et seq. The Act became effective during December, 1974. On or about September 2, 1975, the Respondent and the Firefighters Union filed a voluntary recognition petition with the Public Employees Relations Commission. On or about January 13, 1976, the Public Employees Relations Commission certified the Firefighters Union as the exclusive bargaining representative of employees in the Respondent's Fire Department. The Firefighters Union had not been certified by PERC at the time that the Respondent suspended the merit pay plan.
Findings Of Fact Respondent contracted to build a fire-police-safety training center (hereafter center) for the City of Tampa, and by reference to Determination No. 1110-V, which was physically attached to the contract, agreed to pay carpenters at the rate of eight dollars and thirty-one and a half cents ($5.315) an hour and laborers at an hourly rate of six dollars and fifteen cents ($6.15). Charles Shade worked for respondent as superintendent of the center job. Petitioner first worked at the center job site as a carpenter in the employ of Armco, one of respondent's subcontractors. On respondent's behalf, Charles Shade hired petitioner Herron when Armco laid him off. At that time, Mr. Shade said, "Well, I don't have much carpentry now," but offered petitioner a job as assistant superintendent at five and a half dollars ($5.50) per hour. Part of the inducement for petitioner to take this job was the prospect of eventually working as a superintendent for respondent, and after he began work, petitioner submitted a resume in letter form listing his considerable experience in the construction industry. This letter came in evidence as respondent's exhibit No. l. Petitioner testified that he began working for respondent in August of 1976, but, according to payroll records introduced as petitioner's composite exhibit No. 3, he began work on September 10, 1976. This conflict in the evidence has been resolved in favor of the payroll records. From September 10, 1976, through January 28, 1977, petitioner was paid at an hourly rate of five and one-half dollars ($5.50), for 504 hours worked during regular working hours; and at an hourly rate of eight and one-quarter dollars ($8.25) for sixteen hours worked overtime. After January 28, 1977, until his employment with respondent ended, petitioner was paid at an hourly rate of six dollars and fifteen cents ($6.15), for a total of 176 hours worked during regular working hours. During the course of his employment by respondent, petitioner performed a great variety of tasks, often using tools he brought with him and kept in his car. Hammers, pliers, framing square, chisels, wrenches, a small electric drill and a small power hand saw were among the tools he had in his car. He did rough and finish carpentry, ironworking, counted how much brick the masons laid, shoveled sand, did layout, discussed plans with subcontractors, supervised laborers, filled out payroll sheets in Mr. Shade's absence, ran the bobcat, oversaw the paving of the driveway and dealt with the subcontractors in Mr. Shade's absence. From time to time in the course of his employment, petitioner did miscellaneous carpentry, including layout, putting backing on walls, hanging outside doors, installing door frames, building platforms, constructing wood curbing on the roof, putting thresholds in, and grading with a transit and level. While doing carpentry, petitioner ordinarily worked with a carpenter's helper. Mr. Shade also performed a great variety of tasks, including miscellaneous carpentry. Petitioner's last full day of work was February 25, 1977, a Friday. The following Wednesday he returned to the center job site and told Mr. Shade he had filed the affidavit which initiated these proceedings. Mr. Shade told petitioner he could continue working if he signed a statement acknowledging that he was an assistant superintendent. Petitioner answered that he wanted to obtain legal advice before deciding and did no further work for respondent. Shade did not hire petitioner in an effort to obtain a carpenter's services at less than the prevailing wage. In preparing its bid for the center contract, respondent budgeted one thousand dollars ($1,000.00) for rough carpentry (wages for carpenter and helper) and one thousand dollars ($1,000.00) for finish carpentry (wages for carpenter and helper). Petitioner spent approximately five and a half months on the center job site, which would have been ample time to do all the carpentry budgeted and more, even without a helper if respondent had hired petitioner for that purpose. The fact that respondent hired a carpenter to work on the center project after petitioner's departure indicates that a significant amount of carpenter's work still remained to be done, however. Everybody on the job, including petitioner was paid for a full day on Christmas Eve, although only a half day was worked. On one unspecified date, everybody on the job, including petitioner, was paid a day's wages although everybody was sent home because it was too cold to work.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the contracting authority, the City of Tampa, pay petitioner Herron the sum of three hundred twenty-five and forty hundredths dollars ($325.40). That the contracting authority, the City of Tampa, pay respondent the balance of moneys heretofore withheld on account of petitioner's claim, pursuant to Section 215.19(3)(b) Florida Statutes (1975). DONE and ENTERED this 30th day of June, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dale W. Vash, Esquire 620 Twiggs Street Tampa, Florida 33602 James B. Loper, Esquire 101 East Kennedy Boulevard Tampa, Florida 33602 Dan F. Turnbull, Jr., Esquire Florida Department Of Commerce 401 Collins Building Tallahassee, Florida 32304 Luther J. Moore Administrator of Prevailing Wage Division of Labor 1321 Executive Center Drive East Tallahassee, Florida 32301
The Issue Whether or not Respondent has committed an unlawful employment practice by terminating Petitioner due to the "handicap" of manic depression and/or bipolar disorder.
Findings Of Fact Petitioner suffers from bipolar disorder, a psychiatric disorder manifested by mood swings from elation to depression. When experiencing an episode of mania, the Petitioner is incapable of attending to a task for any length of time. She is also overly excited and exercises poor judgment. Dependent upon how expert medical physicians characterize this condition at various stages, it is either a type of manic depression or a psychiatric condition very similar in symptomatology to classic manic depression. Petitioner began working for Respondent Mark III on March 20, 1985 as a seamstress. Her primary job function was running an industrial grade sewing machine for van conversions. She was a very good employee except for the occasions when she suffered bouts of mania. She was never subject to discipline, and during the periods of mania she experienced, her work-related problems were treated by the employer as a disability. The first episode of mania occurred in April 1986. Prior to her hospitalization for mania, the Petitioner was drinking excessively and staying out from work. She was hospitalized in Monroe Regional Hospital from April 22, 1986 to April 29, 1986. Thereafter, she returned to work, but again began to experience problems and had to be hospitalized again from June 7, 1986 to June 13, 1986. After she came-out of the hospital, Respondent employer permitted her to work part-time (that is, fewer hours) for a period of several months until she was able to resume full-time responsibilities. The employer's providing Petitioner part-time employment in 1986 was prompted by several factors. First, Petitioner was accorded the same accommodation any of Respondent's employees would receive under Respondent's general policy of allowing persons who have left for medical reasons to return to work if work is available. Second, this was also done personally and specifically for Petitioner at this time to accommodate her individual situation at that time. Third, the cyclical nature of Respondent's business of van conversions is such that June and July are a wind-down period toward the month of August when Respondent either closes down or lays off personnel for one to three weeks' duration. Fourth, Petitioner's team position had not been filled because "many girls," in the words of Respondent's representative Joe Krim, "float regularly." Respondent's method of payment of seamstresses in Petitioner's category bears some discussion because it does not equate in every respect with the street definition of "full-time" and "part-time" labor. Petitioner worked as part of a group or team on production work. Teams are paid when each van is completed, and payment for each van is then divided among the whole sewing room, based upon hours individually worked. The entire team is needed to construct each vehicle and in Petitioner's absence, if they did not replace her, the rest of the team had to pick up her slack. Petitioner's rate of pay was determined on a weekly basis depending upon the amount of work produced by the team/group she worked with. During her period of full-time employment just prior to November 1987, Petitioner's weekly net pay, if averaged, would be $534.74. Pursuant to the foregoing arrangement, Petitioner received no pay during any of the periods that she was out of work. The Respondent provided no sick leave or disability benefits and did not have a formal procedure for requesting a leave of absence. After the manic episode(s) in 1986, the Petitioner returned to work full-time on or about July 1986 and experienced no problems for over a year. In November 1987, Petitioner again experienced an episode of mania. She began staying away from her job and disrupting her coworkers with overt sexual solicitation and lewd remarks when she was present. Her immediate supervisor, Jon Lanning, requested a meeting with her sometime shortly before December 1, 1987. Petitioner's friend, Mark Wagner, accompanied her to that meeting. At that meeting, Mr. Lanning urged Petitioner to seek hospital treatment for her psychiatric problems. Mr. Lanning was unavailable to testify at formal hearing, having left Respondent's employment in October 1988. Petitioner's impression of Mr. Lanning's representations on behalf of Respondent were that her job would be held for her if she would seek medical help. Mr. Wagner's impression of this so-called "admission" on behalf of Respondent by its agent Lanning was that Lanning was saying Petitioner was a good worker and would be welcome to come back to work when she was able to work. It was obvious to Wagner from this meeting that "if [Petitioner] did not get the situation under control, they would have to let her go." Petitioner was hospitalized from December 1, 1987 to December 6, 1987 at Charter Springs Hospital. Upon her discharge, she continued to take Loxitane, a prescription medication which can cause drowsiness if taken in excess, at the wrong times of day, or with alcohol. The use of alcohol is contraindicated in the presence of Loxitane. Although Respondent established alcohol and drug mixing by Petitioner back in 1986, the uncorroborated hearsay and inconclusive and uncredible repetition by witnesses of so-called "admissions" by Petitioner do not permit or support a finding that Petitioner was abusing alcohol or mixing alcohol with prescription medications in 1987- 1988. Dr. Fred Miley, Petitioner's psychiatrist, signed a release permitting the Respondent to return to work on December 21, 1987. Petitioner returned to work on December 22, 1987 but exhibited signs of drowsiness around the heavy sewing machinery she had to operate and was told by a superior to go home. At formal hearing, Petitioner acknowledged that she "did not need to be on the machine" in that condition. Petitioner stated that after her December 22, 1987 work attempt she had decided that the decision to go back to work was one, "I and I alone would have to make." Petitioner did not report the problem of drowsiness to her psychiatrist at the time she had the Loxitane prescription renewed by him December 30, 1987 or at the time of her next office visit to him on January 12, 1988 except that she did complain to him on that date of being drowsy in the mornings. At formal hearing, Dr. Miley opined that there was really no reason physically or psychiatrically why Petitioner could not have returned to work for Respondent on January 12, 1988; he merely felt pressured by the patient to defer her return-to-work date since she did not want to go back to work then and therefore he felt she could not return to work successfully. Dr. Miley did not know prior to formal hearing in this case that Petitioner's inability to work precluded an award to her of unemployment compensation benefits. On January 12, 1988, Petitioner advised Dr. Miley she wanted to draw unemployment compensation and would receive it until June 1988; that Petitioner did not want to return to work at that time because Respondent had only part- time employment; and that Petitioner was working for herself, sewing free lance. In fact, Petitioner had filed an application for unemployment benefits on December 15, 1987, effective December 13, 1987. She had been denied unemployment benefits on January 4, 1988 because she was deemed by the unemployment compensation reviewer to be unable to work. "Unavailability for work" precludes the award of unemployment compensation benefits pursuant to Chapter 443 F.S. On January 15, 1988, Dr. Miley filled out an unemployment compensation form stating that Petitioner had been unable to work from December 1, 1987 to January 15, 1988 and with the equivocal statement that Petitioner "may possibly be able to return to work in early February 1988" and it should be halftime (20 hours). Petitioner took the January 15 statement by Miley to Jon Lanning because Lanning had advised her he could not hold her job without a statement from her doctor. Sometime in January 1988 Petitioner approached Joe Krim, Mr. Lanning's superior, for help with Mr. Lanning about "getting on up." At some time between the December 1987 hospitalization and February 3, 1988, Petitioner sent her employer a note asking to work night shift instead of day shift. On February 3, 1988, the Petitioner initiated a meeting with Mr. Lanning for the purpose of inquiring whether she could return to work halftime. Mr. Lanning responded that she had been terminated the day before, February 2, 1988. Petitioner had received no prior notice of her impending termination, and Barbara Boos' and Joe Krim's direct testimony confirm Petitioner's understanding that her team position had not yet been filled as of February 3, 1988. At Petitioner's specific request, motivated by her intent at that time to pursue a social security disability claim, Mr. Lanning supplied her with a document dated February 3, 1988 stating: Due to health reasons, [Petitioner] was unable to perform her duties and has not returned to work since late November 1987. Petitioner later abandoned the social security appeal plan. According to Mr. Krim's testimony, Petitioner was actually not rehired because she had not returned to work between November 1987 and February 1988. He was apparently unaware at the time of her termination by Mr. Lanning on February 3, 1988 that she had tried to work for a few hours on December 22, 1987. Nonetheless, he emphasized that although December and January are not heavy production months, February is the month the Respondent must "gear up" for its heaviest production of the season and that he had to "get production up" at that time for that reason. Further, the purpose of Respondent's recent move to new quarters had been partly to eliminate a night shift which in 1986 had done little real production work and did mostly clean up and preparation for the day sewing teams. In February 1988, he had put all teams on full-time day work. He did not, therefore, have available part-time work (fewer hours) with which to accommodate Petitioner as he had in 1986. Respondent had full-time work available for Petitioner in January and February of 1988. By February of 1988, the new "season" had commenced, Respondent had moved into a new plant, and Respondent could no longer accommodate halftime or part-time work arrangements. On March 15, 1988 Dr. Miley completed an additional form stating that the Petitioner had been unable to work from December 1, 1987 to February 14, 1988. Petitioner admitted that in February 1988, she wanted to go back to work only part-time but that Respondent had not established a part-time crew, as such. Petitioner also admitted not knowing if there were any part-time work available then. In light of her several conflicting representations under the circumstances related supra., the undersigned is not persuaded by Petitioner's representations at the formal hearing in the instant case that if she had been told by Mr. Banning directly that part-time employment was unavailable, she would have agreed to full-time employment on February 3, 1988. Petitioner eventually received unemployment compensation from approximately March 1988 until September 1988. In November 1988, Petitioner secured employment very similar to that she previously held with Respondent, which employment she has continuously held with no further episodes of mania requiring psychiatric treatment.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's charge of discrimination against Respondent DONE and ENTERED this 4th day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-0985 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1, 2, 3, 5, 6, 7, 8, 9 and 10 are accepted. 4 is accepted with the exception of the last sentence, which rejected as not supported by the record. See FOF 7. 11 is rejected. This is legal argument which mischaracterizes both the burden to go forward and the burden of proof in this type of case. Except for sentence 1 of 12 which is rejected as not supported by the record for the reasons set forth in the Findings of Fact and Conclusions of Thaw, 12 and 13 are accepted as modified to more clearly reflect the record evidence as a whole. Respondent' s PFOF: 1, 2, 4, 5, 6, 8, 10, 11, 14, 15, 16, 17 and 18 are accepted. 3 and 9 are rejected as stated as not supported by the record as a whole. 7 is immaterial. See FOF 8. 12 and 13 are subordinate and unnecessary to the facts as found. COPIES FURNISHED: Frank C. Amatea Attorney at Law 500 Northeast Eighth Avenue Ocala, Florida 32670 Carla Franklin Attorney at Law Post Office Box 694 Gainesville, Florida 32601 Donald A. Griffin Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570
Findings Of Fact Petitioner was first employed with the State of Florida, Department of Management Services, Division of Facilities Management, Bureau of Maintenance (DMS), in 1979 or 1980. Her date of retirement was February 19, 1993. Petitioner graduated from Florida A&M high school and attended Florida A&M University for approximately one and one-half years. Between 1950 and 1979 or 1980, Petitioner was primarily a homemaker but also worked in various clerical positions until starting work with the Department of Management Services as a custodial worker. Petitioner began working as a custodial worker at the Twin Towers Building in Tallahassee, Florida. In that capacity, Ms. Lewis was responsible for dusting, vacuuming, trash removal, and spot cleaning furniture, walls and doors. During her tenure at the Twin Towers Building Ms. Lewis received the following discipline: Oral reprimand for excessive absenteeism, on September 20, 1982. Written reprimand for excessive absenteeism; on September 15, 1983; and Suspension for three workdays for the third offense of excessive absenteeism on September 5, 1984. Additionally, around April 30, 1985, the building superintendent at Twin Towers gave Ms. Lewis a memorandum of concern about her absenteeism. Around April 23, 1987, she was given a memorandum of concern about tardiness in reporting to work because she had been late to work twelve times in the three month period prior to the memo. Ms. Lewis seemed to improve her daily attendance at work but, the problem of tardiness to work continued. Petitioner began working as a night shift custodial worker at the Capitol in May of 1988, when she was transferred from the Twin Towers Building. The transfer was necessary because all of the full-time custodial positions at the Twin Towers Building were changed to halftime positions. DMS custodial workers at the Capitol on the night shift were responsible for cleaning of the public areas and offices of the capitol complex, including dusting, vacuuming, trash removal, and spot cleaning furniture, walls and doors. Generally, four employees work as a team to quick clean certain areas and do more thorough cleaning in other areas each night as assigned by that shift's custodial supervisors. All members of the general cleaning teams were expected to arrive at work at 5:00 p.m. and work until 1:00 a.m. The lunch break was considered work time for the employees and was therefore paid. Upon joining the custodial workers at the Capitol, Ms. Lewis was assigned the task of dusting the historic capitol building. Her performance appraised by Tommy Denis, Custodial Supervisor III, indicated that she was a good worker with attendance and tardiness problems. Eventually, Petitioner, at her request, was moved to work with a team on the plaza level at the Capitol. Her duties consisted of dusting with occasional vacuuming and emptying of small office trash cans which weighed less than 10 pounds into large trash containers on wheels. She continued to receive good appraisal ratings with the problems of attendance and tardiness noted. Another change in duty assignment placed Ms. Lewis with a team working on multiple, upper floors of the Capitol. Her principal duty continued to be dusting with occasional vacuuming and emptying of small office trash cans which weighed less than 10 pounds into large trash containers on wheels. Ms. Lewis reported to her doctor that she was assigned the duty of dusting. Petitioner testified she could empty the small office trash cans. Ms. Lewis was not assigned to lift recycle paper and not assigned to pull bags of trash out of the large trash barrels on wheels. Additionally, Ms. Lewis, along with other custodial workers were instructed not to lift anything that was too heavy and to call for help when such a situation was encountered. At some point in her employment, Ms. Lewis injured her back while lifting trash. Because of the injury she experienced recurrent pain in her right leg and lower back. In August of 1989, Ms. Lewis had surgery for her back problem. Soon after the surgery in September of 1989, Ms. Lewis fell out of bed onto her hip. The fall delayed her in recovering from the surgery mainly due to new pain in her hip. The pain for which she had the surgery was absent. However, Ms. Lewis did not communicate with DMS regarding her status and her ability to return to work. Since her medical condition was unclear to Building Superintendent Boynton, he requested the assistance of the Bureau of Personnel Management Services. Bureau Chief Dave Fulcher wrote Ms. Lewis to ascertain her status. She solicited her surgeon, Dr. Geissinger, to respond to Mr. Fulcher. Dr. Geissinger evaluated the duties of the position held by Ms. Lewis from her position description. On November 30, 1989, Dr. Geissinger wrote Mr. Fulcher that Ms. Lewis could be expected to perform the duties of her position. Dr. Geissinger also attached a copy of his office notes dated 11/30/89, which indicated Ms. Lewis still experienced some pain but that she was not in acute distress. In November 1989, Dr. Geissinger did not specify "light duty" for Petitioner but at other times, Dr. Geissinger and other doctors specified a weight limit for Petitioner's lifting. The suggested limits did not exceed the lifting requirements of Petitioner's position. Dr. E. E. Lowder sent the last "light duty" restriction for Ms. Lewis. He limited her lifting to 10 - 15 pounds and indicated that her release from doctor's care was pending. Importantly, there was no evidence which indicated that Petitioner's back problem amounted to a condition which impaired any major life function of Petitioner. Moreover, there was no evidence that DMS perceived Petitioner's back problem as a handicap. In fact, the evidence presented at the hearing demonstrated Petitioner's condition was not a handicap and was not perceived as such by her employer. During the six month period from 5/8/92 to 11/5/92, Ms. Lewis was tardy 46 times by eight minutes or more. During the eight month period from 6/20/90 to 2/28/91 Petitioner was tardy 46 times. Following 2/28/91, Ms. Lewis was tardy at least 5 more times. On April 11, 1991 Ms. Lewis received an oral reprimand for her tardiness. Ms. Lewis was again tardy two more times and received a written reprimand for excessive tardiness on May 7, 1991. Later, Petitioner received a three workday suspension for tardiness which was served on January 12, 13, and 14, 1993. Ms. Lewis did not deny that she had been tardy. Other employees, males and females, were disciplined for excessive absenteeism and tardiness. After the suspension was served in January, 1993, Ms. Lewis was tardy 15 times in the next 18 days, nine days of which were 8 minutes or more. The fact that some of the days Petitioner was late were for less than seven minutes does not eliminate the tardiness. DMS rules on the subject only address when an employee's wages can be docked for such lateness. Since Ms. Lewis continued to be tardy, Allen Dallis, Maintenance Supervisor, initiated the first step of a recommendation to dismiss Ms. Lewis for continuing tardiness. Ms. Lewis gave reasons for being tardy which included, being stuck in traffic, doctors' appointments, her ride to work being late, caring for her grandchildren, and sickness of her daughter. Often she was late simply because, for unknown reasons, she waited outside her place of employment before coming into work. At no time in the disciplinary process leading up to the suspension or after the suspension did Ms. Lewis assert that she was being singled out due to her sex or handicap. In fact, Ms. Lewis would not talk with her supervisors about her tardiness or her assignments. In general Ms. Lewis did not communicate well with her supervisors and had formed the habit that if they said something to her, she would walk off and not respond. Generally, Ms. Lewis did not notify her supervisors ahead of time that she would be tardy even though she knew in advance when her tardiness might occur. She occasionally called Mr. Rivers, a custodial supervisor, on the same day that she would be tardy to tell him she would be late. Mr. Rivers was not available for calls until 5:00 p.m. each day after the shift had begun. Occasionally, Ms. Lewis would advise her supervisors the evening before that she would be late the next day. After July 12, 1990, Ms. Lewis received leave without pay (LWOP) when she was more than seven minutes tardy and she had not brought in medical certification. Tardiness of custodial workers presented problems in scheduling the work because the workers were organized in teams whose members moved together doing their tasks. If one of the usual team members was absent or late at the beginning of the shift, the supervisors would organize the employees who were present into different teams in order to try to cover all areas with the available workers and have no one working alone. Frequently it was not evident whether Ms. Lewis was tardy or absent for the evening. Ms. Lewis asked that if she were tardy in reporting to work, she be allowed to make up the amount of time she had been tardy on the same night. She did not request a change in her schedule. Her choice of make up time was during the lunch break when her time was already counted as work-time, or after 1:00 a.m., when all workers and supervisors were gone from the building. The request was denied because a daily schedule which changes as the employee chooses would not fit the staffing organization of the custodial work force in the Capitol. Additionally, a worker could not stay in the Capitol past the end of the shift at 1:00 a.m. with no supervisors present. No employee was permitted to adjust their daily schedule in such an unpredictable manner. A few years ago, Dunk Chambers, at the time a custodial worker on a floor team, and Johnny Pease, at the time a Custodial Supervisor I, had flexible schedules in which they reported to work at 5:30 p.m. each day except Wednesday. On Wednesdays they reported to work early enough to make up time missed during the week. These schedules were predictable and set well in advance. Currently, Mr. Chambers, Custodial Supervisor II, and Mr. Pease, Custodial Supervisor III, currently follow the regular night shift schedule. Presently, two female custodial workers at the building where Tommy Denis is supervisor, follow a schedule in which their arrival and departure from work is different from that of other employees. Again these schedules are predictable and are set well in advance. The denial of Ms. Lewis' request to make up time when she was tardy was not due to a medical condition, handicap or sex. At least one other female employee who had no medical problem was disciplined for excessive tardiness to work. Allen Dallis asked Ms. Lewis if she wanted to work part-time as a suggestion of a possible change that would enable her to report to work on time, but she walked off with no answer. The option of retirement was offhandedly mentioned to her also. During these conversations, there was no coercion, duress, misinformation or deception by the supervisors and there was no indication that Ms. Lewis was in any way harassed by her supervisors. During her tenure with DMS, Ms. Lewis did not present any medical justification for nor request any specific accommodation for her back problems other than temporary light duty for a condition from which she would soon be released. The evidence was very clear that Petitioner was only doing light duty work which work could not be lightened further. Finally, there was no evidence that Petitioner was subjected to any discrimination based on sex or handicap. Finally, the evidence did show that Petitioner's discipline was justified, that she was not constructively discharged, and that Petitioner chose to retire in February 1993. Given these facts, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that she was discriminated against because of her sex or handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE and ORDERED this 30th day of November, 1994, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 30th day of November, 1994. APPENDIX TO DOAH CASE NO. 94-3996 The facts contained in paragraphs of 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 18, 19, 20, 22, 23, 34, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 44, 45, 46, 47, 48, 49, 52, 54, 55, 57, 60, 62, 63, 64, 65, 66 and 68 Respondent's proposed findings of fact are adopted in substance insofar as material. The facts contained in paragraphs 3,,, 13, 14, 15, 21, 25, 39, 40, 41, 42, 43, 50, 51, 53, 56, 58, 59, 61, 67, 70, 71, 72 and 73 of Respondent's proposed findings of fact are subordinate. The facts contained in paragraphs 4, 5, 6, 7, 10, 14, 43, and 44 of Petitioner's proposed findings of fact are adopted in substance insofar as material. The facts contained in paragraphs 3, 9, 11, 18, 13, 18, 20, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 33, 34, 35, 40, 45, 46 and 47 of Petitioner's proposed findings of fact are subordinate. The facts contained in paragraphs 8, 15, 16, 17, 19, 21, 28, 36, 37, 38, 39, 41 and 42 of Petitioner's proposed findings of fact were not shown by the evidence. COPIES FURNISHED: Joan Van Arsdall Department of Management Services Suite 309 Knight Building 2737 Centerview Drive Tallahassee, FL 32399-0950 Marie Mattox 3045 Tower Court Tallahassee, FL 32303 Helen Burgess AFSCME Florida Council 79 345 South Magnolia Drive Suite A-13 Tallahassee, FL 32301 Ms. Sharon Moultry Clerk Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149
The Issue The issue to determine in this bid protest matter is whether the Department’s intended award of state term contracts for information technology staff augmentation services was contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact The Department is the state agency responsible for procuring state term contracts. See §§ 287.012(28), 287.042(2)(a), 287.056-057, Fla. Stat. A “state term contract” is a term contract that is competitively procured by the Department. § 287.012(28), Fla. Stat. A “term contract” means an indefinite quantity contract to furnish commodities or contractual services during a defined period. § 287.012(29), Fla. Stat. The Department initiated this competitive procurement to establish a state term contract for information technology (“IT”) staff augmentation services. The procurement’s objective is to enable state agencies and other eligible users (“Customers”) to supplement their IT staff. The solicitation at the center of these protests is Request for Proposals for Information Technology Staff Augmentation Services – 3rd Bid, RFP 15- 80101507-SA-D (the “RFP”). The RFP is intended to replace an existing state term contract for IT staff augmentation services. The current contract has an estimated annual spending volume of approximately $66,800,000. As described in the RFP, the Department intends to award up to approximately 200 vendors with the ability to provide (temporary) IT staff services per specific position. Thereafter, a Customer who desires IT staff assistance will issue a Request for Quote, which is available for review by all vendors awarded with the state term contract (the “Contractors”). A Contractor who desires to fulfill the request responds to the Customer’s Request for Quote agreeing to provide IT staff who possess the technical skills needed. A Request for Quote also allows Customers to obtain pricing and service information from interested Contractors. See § 287.056(2), Fla. Stat. If selected, the Contractor will then charge the Customer for the assigned personnel on an hourly basis.6/ In other words, the Department will competitively procure IT staffing services from multiple vendors/Contractors. A vendor who is awarded a contract under the RFP is not given an actual IT job, but rather is included on a list of Contractors as a potential source to fill an IT position in the future. Thereafter, Customers may obtain IT staff assistance, through a Request for Quote, without having to conduct a separate, independent solicitation. The Department issued the RFP on February 5, 2019.7/ On February 11, 2019, the Department posted Addendum No. 1 to the RFP. Addendum No. 1 notified vendors that the RFP was a “new solicitation,” and that the previous solicitation had been cancelled and rebid. The Department subsequently posted Addendum No. 2 to the RFP revising and clarifying the bid specifications. The Department posted Addendum No. 3 to the RFP on May 20, 2019.8/ Addendum No. 3 instructed vendors that all proposals were due by March 19, 2019. On or before March 19, 2019, the Department received proposals from 378 vendors,9/ including ArnAmy and Seva. Under the RFP’s evaluation methodology, vendors’ proposals were scored in four Evaluation Criteria, as follows: Evaluation Criteria Maximum Possible Points IT Experience Certification (Attachment B) 100 Staffing Resource Management Plan 300 IT Staff Augmentation Contract Experience 200 Price (Attachment C) 400 per Job Title Total Score Possible Per Job Title 1000 Regarding the IT Experience Certification criteria, vendors submitted information on an IT Experience Certification Form which was included in the RFP. The form was scored based on the number of years the vendor had been in the IT business. The Procurement Officer identified in the RFP, Joel Atkinson, scored this criteria. (Both ArnAmy and Seva received the maximum 100 points in this category.) Regarding the Staffing Resource Management Plan (the “Management Plan”) and the IT Staff Augmentation Contract Experience (“IT Staff Contract Experience”) categories, the Department appointed three individuals (the “Evaluators”) to independently score these sections of each proposal. (The three Evaluators are referred to as the “Scoring Team”.) The Scoring Team consisted of Stephanie Reaves, Denise Roberts, and Heather Shoup. For the Management Plans, the Evaluators were to assign point values based on whether the vendors demonstrated “exceptional ability” (300 points); “intermediate ability” (200 points); “minimal ability” (100 points); or “fails to demonstrate ability” (0 points). For the IT Staff Contract Experience category, the Evaluators were to assess a point value based on whether the vendor demonstrated “extensive” experience (200 points); “intermediate” experience (150 points); “minimal” experience (100 points); or “fails to demonstrate experience” (0 points). Regarding the Price criteria, each vendor was required to complete a price sheet wherein the vendor quoted an hourly rate for each specific IT staff service for which the vendor desired to contract. The price sheet divided each staff service into “Job Families.” Within each Job Family, the RFP listed multiple “Job Titles.” The RFP included a total of 130 different Job Titles for which vendors could submit proposals. In addition, the price sheet further divided the majority of Job Titles into “Scope Variants,” which are degrees of experience within an individual Job Title (typically up to three Scope Variants per Job Title). For example, in the Job Family of Applications Development, the Job Title of Systems Analyst was broken out into Scope Variant levels of Entry, Intermediate, and Advanced.10/ Further, the RFP attached a “Ceiling Rate” to each Scope Variant. The RFP explained that the Department would not consider or evaluate a vendor’s proposal for a particular Job Title if the hourly rate the vendor quoted was higher than the Ceiling Rate. Finally, the price per hour the vendor quoted for the Job Title was considered a “not to exceed” price. In other words, after the state term contract was awarded, when a Contractor received a Request for Quote from a Customer, the Contractor could not charge a higher hourly rate than the price listed in its proposal. However, the RFP permitted Contractors to respond with a (competitively) lower hourly rate for the IT staffing services it would agree to provide. RFP, section 5.2.4 set forth a formula to calculate the score for the prices the vendors quoted for the specific Job Titles. The Department designed the formula to establish a base line with which to compare proposals. Using the formula, the vendor with the lowest price per Job Title or Scope Variant11/ was awarded 400 points (the maximum). Thereafter, every other vendor received points for price per Job Title using the following calculation: (X) x 400 = Z (N) Where: X = lowest price of all Proposals submitted per Job Title N = Respondent's submitted total price per Job Title Z = points awarded The Procurement Officer, Mr. Atkinson, (not the Scoring Team) calculated and assigned the points for price. The Vendors’ scores for IT Experience Certification and Price (from the Procurement Officer) were added to the Evaluators’ scores for the Management Plan and Staff Contract Experience for a total score for each proposal. Upon winning a contract, Contractors are only permitted to provide services for the specific IT positions awarded through the solicitation. As explained in RFP, Exhibit A, STATEMENT OF WORK, the Contractors agree to provide IT staffing services described in a document entitled “Job Families Descriptions.” The Contractors will be responsible for the following activities: The Contractor shall possess the professional and technical staff necessary to allocate, outsource, and manage qualified information technology staff to perform the services requested by the Customer. The Contractor shall provide Customers with staff who must have sufficient skill and experience to perform the services assigned to them. All of the information technology staff augmentation services to be furnished by the Contractor under the Contract shall meet the professional standards and quality that prevails among information technology professionals in the same discipline and of similar knowledge and skill engaged in related work throughout Florida under the same or similar circumstances. The Contractor shall provide, at its own expense, training necessary for keeping Contractor's staff abreast of industry advances and for maintaining proficiency in equipment and systems that are available on the commercial market. The Contractor shall be responsible for the administration and maintenance of all employment and payroll records, payroll processing, remittance of payroll and taxes, and all administrative tasks required by state and federal law associated with payment of staff. The Contractor shall, at its own expense, be responsible for adhering to the Contract background screening requirements, testing, evaluations, advertising, recruitment, and disciplinary actions of Contractor’s information technology staff. The Contractor shall maintain during the term of the Contract all licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required to perform the information technology staff augmentation services. In short, the Contractors are responsible for finding, hiring, and recruiting qualified IT personnel. Thereafter, the Contractors must provide and manage their IT staff pursuant to the terms of the Request for Quote. Awards under the RFP were made by Job Title. RFP, section 5.3, explained the Basis for Award as follows: The Department intends to make multiple awards from this solicitation and anticipates awarding 200 contracts per Job Title. Contracts will be awarded to the responsible and responsive Vendors that are determined to be the most advantageous to the state based on, per Job Title, the highest total evaluation criteria scores, which includes price, IT Experience Certification, Staffing Resource Management Plan, and IT Staff Augmentation Contract Experience scores. The maximum possible total score per Job Title is 1000. * * * For those Job Titles where, in determining the 200th awarded Vendor, there are multiple responsible and responsive Respondents with the same numeric score, the Department reserves the right to award more than 200 contracts per Job Title to those responsive and responsible Respondents who are tied for the 200th contract award. Awards will be made per Job Title. A vendor was not required to submit a response for every Job Title. Instead, vendors were free to bid for only those Job Titles for which they desired to provide IT Staffing services. However, if a vendor did respond to a specific Job Title, the vendor was required to provide a price per hour for every Scope Variant within that Job Title. On June 5, 2019, the Department held a public meeting during which the three Evaluators, as well as the Procurement Officer, confirmed their scores. On June 24, 2019, the Department posted its Revised Notice to the Vendor Bid System listing all vendors to whom the Department intended to award IT staffing contracts. The Department awarded contracts to the top 200 vendors (plus ties) for each of the 130 Job Titles. ArnAmy bid for all 130 Job Titles. The Department awarded ArnAmy 21 out of 130 Job Titles. In other words, ArnAmy finished in the top 200 for 21 of 130 Job Titles. Seva bid for all 130 Job Titles. The Department did not award Seva any Job Titles. In other words, Seva did not finish in the top 200 for any of the Job Titles. ARNAMY’S PROTEST: ArnAmy protests the Department’s decision to award it a state term contract for only 21 of 130 Job Titles offered through the RFP. Mr. Datta Kadam testified on behalf of ArnAmy. Mr. Kadam is the founder and chief executive officer of ArnAmy. Mr. Kadam prepared and submitted ArnAmy’s response to the RFP. Mr. Kadam initially relayed that ArnAmy was formed in 2007 as an IT consulting and software development company. He further expressed that ArnAmy has extensive experience under the current (2016) state term contract, for which it is authorized to support all 130 IT staff positions. Approximately 85-90 percent of ArnAmy’s IT consulting practice is dedicated to providing IT staff augmentation services through contracts such as the Department’s state term contract. ArnAmy also services staffing contracts for Maryland and Texas. ArnAmy (through Mr. Kadam) presented three primary arguments protesting the Department’s award. The Scoring Team Failed to Evaluate ArnAmy’s Final Management Plan: ArnAmy argues that the Scoring Team was not provided with the final version of its Management Plan. Instead, the three Evaluators scored an incomplete, preliminary draft. Mr. Kadam believes ArnAmy would have received higher scores for Job Titles had the Evaluators scored the correct version of its Management Plan. ArnAmy attributes this mistake to a possible error in the MyFloridaMarketPlace (“MarketPlace”) program that interfered with or prevented Mr. Kadam from uploading, saving, and/or submitting the final version of ArnAmy’s Management Plan for scoring. MarketPlace is the State of Florida online procurement system. MarketPlace served as the “web portal” for vendors to access the Department’s procurement documents, as well as a guide to assist them through the purchase process. The RFP required vendors to submit proposals through MarketPlace. The main software component of MarketPlace is a program called “Ariba,” which is a suite of programs or tools. MarketPlace (through Ariba) allowed vendors to electronically submit their responses to the RFP. A vendor may take three distinct actions within MarketPlace/Ariba: (1) upload documents; (2) save documents; and (3) submit documents to the Department. Mr. Kadam maintained that the version of ArnAmy’s Management Plan that the Evaluators scored was an “intermediate working copy” that he had saved “locally” to MarketPlace. Mr. Kadam testified that he uploaded and saved at least three versions of ArnAmy’s Management Plan to MarketPlace. He intended the Department to score the last version of the Management Plan that he saved and submitted on March 18, 2019. Mr. Kadam explained that he was not aware that the Department did not score the appropriate version of ArnAmy’s Management Plan until after the Department posted its Revised Notice on July 24, 2019. Upon learning that ArnAmy was only awarded 21 Job Titles, Mr. Kadam conducted a “root cause analysis” to determine the reason. He initially reviewed the scores of several other proposals “to obtain a baseline of comparison.” He soon discovered that the Management Plan the Evaluators scored for ArnAmy was not the last (and correct) version he believes he uploaded to MarketPlace. Mr. Kadam suggests that a glitch occurred within the MarketPlace program that replaced or substituted an earlier version of ArnAmy’s Management Plan for the final version. At the final hearing, Mr. Kadam relayed that he did not find any error at the “front” or “user’s” (ArnAmy’s) end of the system. Nor did he receive any error messages after submitting ArnAmy’s Management Plan. He did, however, offer several possible, “logical” causes for the inconsistency. His theories included “deadlock,” or a situation that occurs on the system when one document is in use on the server that prevents another document (i.e., ArnAmy’s Management Plan) from being properly uploaded. Mr. Kadam explained that the difference between the early version and the final version of ArnAmy’s Management Plan was significant. RFP, section 5.2.2, instructed vendors to recite how they proposed to recruit, staff, and manage requests for IT services. The intermediate version of ArnAmy’s Management Plan did not include the information referenced in RFP, section 5.2.2.B, which specifically directed vendors to identify and describe the roles and expertise of their Principal Personnel.12/ Mr. Kadam represented that the final version of ArnAmy’s Management Plan did contain this information. ArnAmy argues that if the MarketPlace error had not occurred, its proposal would have received a much more favorable score. Mr. Kadam specifically pointed to the score from one Evaluator, Stephanie Reaves, who only awarded ArnAmy’s Management Plan 100 out of 300 points. Mr. Kadam contends that if Ms. Reaves had just increased her score to the next level (200), ArnAmy would have been awarded most, if not all, of the 130 Job Titles. As more fully discussed below, despite Mr. Kadam’s detailed analytical investigation into the MarketPlace program, ArnAmy did not produce conclusive or direct evidence to support his theory that an error within MarketPlace was responsible for the submission of an intermediate version of ArnAmy’s Management Plan to the Department, instead of Mr. Kadam’s final version. During his testimony, Mr. Kadam stated that “a lot could have happened” to the documents he uploaded. However, he conceded that he did not know exactly what that might have been. The Scoring Team was Not Qualified to Score the Proposals: ArnAmy also charges that the Department failed to properly train the three Evaluators or provide them adequate guidance on how to effectively score the vendors’ proposals. Specifically, ArnAmy asserts that the Department failed to select Evaluators with the requisite background, experience, and knowledge in the subject matter of the RFP, i.e., information technology. Consequently, the Evaluators could not have conducted a comprehensive or sound review of the IT staffing services listed in the RFP. In other words, the Department could not have competently or fairly decided that ArnAmy should not be awarded an IT staff augmentation contract because the Evaluators did not know how to properly score its proposal. To support its argument, ArnAmy points out that not a single Evaluator possessed IT experience. ArnAmy contends that the technical details involved in evaluating proposals for IT staff services require direct experience in the IT field or in acquiring and/or utilizing IT staffing services. Because the Evaluators were unqualified, as well as the fact that the Evaluators were under time pressure to evaluate all 374 proposals, ArnAmy alleges that they inconsistently applied the RFP’s evaluation criteria, and, in some cases, failed to apply it altogether. As discussed below, the facts adduced at the final hearing support a finding that the Evaluators were suitably qualified to score the vendors’ proposals. Therefore, the undersigned finds this argument insufficient to reverse the Department’s award. Evaluator Stephanie Reaves Incorrectly Scored ArnAmy’s IT Staff Contract Experience: Finally, as a direct result of the Scoring Team’s inexperience, ArnAmy asserts that one of the three Evaluators, Stephanie Reaves, failed to properly score its IT Staff Contract Experience. ArnAmy specifically alleges that, in her haste to review ArnAmy’s proposal, Ms. Reaves overlooked key information included in its IT Staff Contract Experience submission. RFP, section 5.2.3, advised that a vendor “will be scored” based on “the best representation of its experience in providing IT Staff Augmentation.” Section 5.2.3 specifically asked vendors to include information regarding: Total number of IT Staff Augmentation contract/purchase orders. Total combined dollar amount of IT Staff Augmentation contracts/purchase orders. At page 19 of its response to section 5.2.3, ArnAmy reported on its IT Staff Contract Experience document that ArnAmy had 11 years of IT staffing experience with the State of Florida involving 147 total contracts worth over $19,600,000. As discussed in paragraphs 93, 146, and 147 below, ArnAmy’s argument on this point has merit. Ms. Reaves awarded ArnAmy’s IT Staff Contract Experience 150 out of 200 points. At the final hearing, Ms. Reaves admitted that she did not see this information in ArnAmy’s proposal prior to formulating her score. SEVA’S PROTEST: Seva was not awarded any of the 130 Job Titles for which it bid. Seva protests the Department’s award arguing that the RFP’s scoring formula was built on an arbitrary evaluation system and a mathematically deficient price scoring system. Consequently, the evaluation process resulted in unfair and unreliable awards that should not have excluded Seva’s proposal. Danny O'Donnell spoke on behalf of Seva. Mr. O’Donnell prepared and submitted Seva’s proposal to the RFP. In addition, at the final hearing, Mr. O’Donnell was accepted as an expert in statistics, data presentation, and pattern analysis. Mr. O’Donnell explained that he is very competent at extracting and compiling data from spreadsheets and reports and presenting that information in a form that is more easily understood. Mr. O’Donnell testified that Seva is an IT consulting and software development services firm headquartered in Tallahassee, Florida. He further represented that Seva has extensive experience providing IT staffing services to the State of Florida. Seva has provided temporary IT staff for state agencies since 2009, and has participated in a total of 120 IT staffing contracts with the state worth over $19,800,000. Further, Seva is an active vendor supporting 129 of the 130 IT jobs awarded in the 2016 state term contract. Mr. O’Donnell also commented that Seva’s 2019 proposal was substantially the same as its 2016 submission. Further, the 2019 RFP criteria was very similar to the 2016 procurement terms. In 2016, Seva received good (and winning) scores for its Management Plan. Consequently, Mr. O’Donnell was puzzled why Seva received such low scores under this RFP. To understand the reason the Department did not award Seva any Job Titles, Mr. O’Donnell culled through reams of Department data, charts, and spreadsheets. Based on his statistical analysis, Mr. O’Donnell reached two primary conclusions why the Department’s scores for the 2019 RFP are unsound. The RFP’s Price Scoring System: Initially, Mr. O’Donnell argued that the RFP’s “extremely flawed” price scoring formula set forth in RFP, section 5.2.4, produced arbitrary and unreliable scoring results. Specifically, the formula allowed vendors to propose “low-ball,” “unrealistic,” and “unsustainable” prices that are excessively below the market value for IT staffing services in order to procure higher scores for their proposals. Consequently, vendors who submitted these “unbalanced” bids received an unfair competitive advantage over vendors who presented realistic prices (i.e., ArnAmy and Seva) for their IT staffing services. Mr. O’Donnell further urged that the formula caused a very narrow “band compression of price points,” which gave rise to “price neutralization.” In other words, vendors who offered legitimately low, but realistic, prices for Job Titles received no corresponding benefit because the unbalanced bids “caused the relative value of the pricing criteria to be neutralized in value.” Concomitantly, the two subjectively scored criteria graded by the Scoring Team (Management Plan and IT Staff Contract Experience) took on much greater significance in determining whether a particular vendor was awarded a state term contract. A vendor could lose more points on pricing than it could earn for its Management Plan and IT Staff Contract Experience. As a result, vendors who tendered “unbalanced” bids (with unreasonably low prices) obtained an inequitable and unwarranted benefit. Mr. O’Donnell asserted that there is no correlation between winning vendors having the best price, and the responsible and responsive vendors who can provide the best IT staffing service to Customers. Mr. O'Donnell testified to his belief that the Department did not account for or prevent these artificially low, “unbalanced,” bids. Consequently, it was his opinion that the Scoring Team did not select vendors whose proposals will be the most advantageous to the State of Florida (i.e., Seva). Therefore, the Department’s decision not to award the IT staffing contract to Seva must be overturned. Mr. O’Donnell alleged that his extensive statistical analysis reveals that the three Evaluators used markedly different standards to review, then score, vendors’ proposals. To support his argument, Seva produced a chart showing that Ms. Reaves awarded 161 of the 374 Management Plans a top score of 300. Ms. Shoup awarded 116 Management Plans with 300 points. Ms. Roberts awarded only 66 Management Plans the maximum 300 points. Mr. O’Donnell stressed that these diverse scores indicate an arbitrariness that is outside any zone of reasonable results. Consequently, as a matter of fairness, all proposals must be reevaluated. Mr. O’Donnell further argued that the inequity is compounded by the fact that the Department limited state term contracts for each Job Title to 200 vendors (and ties). Not only is restricting the available Contractors to 200 arbitrary, but the 200 Contractor cap impacts whether legitimate vendors were awarded IT staffing contracts. In addition to Mr. O’Donnell’s analysis and conclusions, Seva presented expert testimony from Dr. Wei Wu. Dr. Wu is a professor in the Department of Statistics at Florida State University. Dr. Wu was accepted as an expert in statistics, including the chi-square correlation test, as well as the “p value” as applied to the solicitation scoring. To formulate his opinion, Dr. Wu applied basic statistical methods and tools. He explained that he conducted a “standard chi-square test” to determine whether the three Evaluators produced the same scoring distribution. Dr. Wu then analyzed the data, reviewed the intuitive results, and formulated his conclusion. He rechecked his data to ensure that it was mathematically correct. Based on his statistical analysis, Dr. Wu announced, with “very high confidence,” that the three Evaluators did not apply the same methodology when scoring Management Plans. Dr. Wu specifically opined that he was “99.99 percent confident that, of the three evaluators; they don’t have the same standard to give the score.” In other words, his research indicated that the Evaluators did not have the same, common understanding of the RFP’s scoring criteria. On the contrary, the Evaluator’s scoring distributions were arbitrarily and unreasonably different. Further, Dr. Wu expressed that the scores awarded for price were “crunched” in the final results, thereby reducing their importance in the proposals’ total scores. Dr. Wu testified that, if the Evaluators had followed the same scoring standard, the score distributions across the 374 proposals would not have been so varied. Dr. Wu acknowledged that some deviation between Evaluators is expected, but not this much. Based on Mr. O’Donnell’s analysis, as supported by Dr. Wu, Seva asserts that statistical data confirms that each Evaluator applied dissimilar grading scales, which manifested itself into erratic scoring. Each Evaluator appears to have a different understanding of what a vendors’ proposal would have to show in order to earn a top-ranked score. Despite his conclusions, however, Mr. O’Donnell conceded that he has no previous experience forming statistical inferences from procurement criteria. Neither does he feel qualified to explain the meaning of his statistical analysis of the scores. Consequently, he could not testify “why” the data shows what it shows. Similarly, Dr. Wu acknowledged that he has never researched procurement scoring formulas, scoring of requests for proposals criteria, or the scoring behavior of procurement evaluators. Nor did his opinion take into account the subjective opinions of the three Evaluators. The Scoring Team was Not Qualified to Score the Proposals: Secondly, similar to ArnAmy, Seva asserts that the wide-ranging scores show that the Department failed to select Evaluators with the requisite experience and knowledge in IT. Seva further charges that the Department neglected to effectively train the Scoring Team. The Department only provided the three Evaluators poorly defined guidelines explaining how to evaluate the vendors’ Management Plans. In addition, Seva argues that amount of time the Department allotted for scoring (eight weeks) was too short to reasonably evaluate 374 separate proposals. DEPARTMENT RESPONSE TO THE TWO PROTESTS: In response to ArnAmy and Seva’s challenges, the Department asserts that it properly acted within its legal authority, as well as the RFP specifications, to award the RFP to qualified responsive and responsible vendors. The Scoring Team Selection/Qualifications: Initially, the Department rejects ArnAmy and Seva’s allegations that the Scoring Team members lacked the requisite experience and knowledge to evaluate the vendors’ proposals. To score a procurement in a request for proposals solicitation, section 287.057(16)(a)1 directed the Department to appoint: At least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought. In accordance with section 287.057(16)(a)1, the Department appointed three individuals (Ms. Reaves, Ms. Roberts, and Ms. Shoup) to serve on the Scoring Team. The three Evaluators were selected by Cliff Nilson (Deputy Director of the Division of State Purchasing), and Joel Atkinson (the Department’s Procurement Officer). Thereafter, the Evaluators were approved by the Department’s Secretary. At the final hearing, Mr. Nilson testified as the Department’s corporate representative. In his role as Deputy Director of State Purchasing, Mr. Nilson oversees the Department’s procurement process, as well as the state term contracts awarded under the RFP. Initially, Mr. Nilson discussed how the Department selected the three Evaluators. Mr. Nilson explained that the state term contract in this solicitation is fundamentally a “staffing” contract. Mr. Nilson characterized the procurement as “essentially . . . a human resource function that’s outsourced to a vendor to recruit, employ, and manage those people.” Mr. Nilson explained that the RFP’s purpose is to solicit vendors who will find, recruit, and manage IT personnel; then effectively provide those employees to Customers to use on an hourly basis to perform IT work. Vendors awarded with a state term contract are only responsible for providing “a person,” not directing or overseeing an IT project. Accordingly, the Department sought evaluators who had experience in human resources and staff management. Further, Mr. Nilson did not believe that a working knowledge of IT services was necessary for a fair and reasonable evaluation of the vendors’ proposals. Mr. Nilson relayed that, because the RFP’s purpose was to identify staffing companies, extensive knowledge of the IT tasks and responsibilities listed in the 130 Job Titles was not necessary when reviewing the vendors’ Management Plans and IT Staff Contract Experience. At the final hearing, the Department elicited testimony from Mr. Kadam (for ArnAmy) and Mr. O’Donnell (for Seva) admitting that the “deliverable” under this state term contract is people and their time and expense, not the various vendors’ IT prowess. During the hearing, both Mr. Kadam and Mr. O’Donnell acknowledged that their primary responsibilities would be to find, recruit, and place suitable IT staff with a state agency. Regarding training the Evaluators, Mr. Nilson conveyed that the Department anticipated that scoring would be fairly straightforward. Therefore, the Department did not plan a lengthy training regime for the Evaluators. Mr. Nilson further commented that the grading criteria described in the RFP did not require specific knowledge of IT services. The Evaluators were to review how each vendor proposed to hire, manage, and retain persons with IT skills. The Evaluators were not scoring the specialized knowledge of the vendors or their employees. Before starting their reviews, the Department arranged for each Evaluator to receive a copy of each proposals’ Management Plan and IT Staff Contract Experience section. The Evaluators also received an Evaluators Guide, as well as Instructions for the Evaluator Score Sheet. Each Evaluator also received and signed a document entitled Evaluator Instructions for Ethics, Sunshine Law, and Conflict of Interest. Finally, the Procurement Officer, Mr. Atkinson, contacted each Evaluator separately to explain their role and answer any questions. The RFP gave the three Evaluators eight weeks to review and score every proposal. Mr. Nilson envisioned the Evaluators spending approximately 30 minutes on each proposal. Mr. Nilson recognized that the scoring would entail hard work, but he was comfortable that the Evaluators would have enough time to perform their responsibilities. The Evaluators scored Petitioners’ proposals as follows: ArnAmy: Management Plan (out of 300 points): Ms. Reaves: 100 points Ms. Roberts: 200 points Ms. Shoup: 200 points IT Staff Contract Experience (out of 200 points): Ms. Reaves: 150 points Ms. Roberts: 200 points (maximum) Ms. Shoup: 200 points (maximum) Seva: Management Plan (out of 300 points): Ms. Reaves: 100 points Ms. Roberts: 0 points Ms. Shoup: 100 points IT Staff Contract Experience (out of 200 points): Ms. Reaves: 150 points Ms. Roberts: 200 points (maximum) Ms. Shoup: 200 points (maximum) Mr. Nilson testified that he was not concerned that the Evaluators’ scores were slightly different. He commented that in his experience, a one-step difference in the scoring spread between evaluators was “not unusual at all.” At the final hearing, each of the Evaluators testified about their background and experience in state procurements and IT staffing contracts as follows: Stephanie Reaves: Ms. Reaves testified that she has worked in the field of human resources for her entire career. She has hired, managed, recruited, and trained employees. At the time Ms. Reaves was selected as an evaluator, she was employed as the Director of Human Resources for the Department of Children and Families. During the RFP process, she transferred to the Department of Environmental Protection where she works as an Employee Relations Specialist. In addition, Ms. Reaves was previously employed with the Florida Housing Finance Corporation, where she reviewed and scored proposals submitted in response to requests for proposals for public contracts. Ms. Reaves also holds a Bachelor of Science degree in Business Administration, as well as a Masters in Human Resource Development. Prior to this RFP, however, she has never been involved in procuring IT staff services. Ms. Reaves declared that she had a firm grasp of her responsibilities as an evaluator. Before she scored the proposals, she reviewed and understood the scoring criteria described in RFP, section 5. She also read the Evaluators Guide, as well as the score sheet instructions. She further relayed that she spoke with the Procurement Officer, Mr. Atkinson, who provided general guidance. Ms. Reaves expressed that she felt adequately trained to evaluate the vendors’ proposals. She also believed that she had the necessary human resources experience to discern whether vendors sufficiently described their staffing abilities in their proposals. Ms. Reaves explained that, when evaluating a proposal, she read the vendor’s submission twice, as well as reviewed the applicable RFP sections. She then compared the proposal to the RFP evaluation criteria. At that point, she scored accordingly and submitted her scores electronically to the Department. Ms. Reaves spent approximately 20-30 minutes per proposal. Ms. Reaves rejected any concerns that her lack of IT knowledge affected her evaluation. She relayed that she did not find scoring difficult. She did not encounter terms in the RFP or the various vendors’ proposals that she did not understand. Ms. Reaves asserted that she worked fairly and independently. Further, she testified that she used the criteria set forth in the RFP and applied the scoring criteria consistently to each proposal. She relayed that she held vendors to the same standard and used the same method when evaluating each proposal. Finally, despite the large amount of commitment and work this evaluation required, Ms. Reaves firmly asserted that she had sufficient guidance and time to review and score each proposal. Regarding her specific scores, Ms. Reaves testified that she awarded ArnAmy 100 out of 300 points for its Management Plan. She explained that, for a perfect score of 300, a proposal would have to “demonstrate exceptional ability.” This score meant that she thoroughly understood how a vendor would provide prospective IT staff to Customers, and the vendor did an excellent job in describing how it would identify potential IT staff that would respond to a Customer’s Request for Quote. ArnAmy’s Management Plan, however, only showed minimal ability to meet the RFP’s objectives. Specifically, ArnAmy did not explain “how” it intended to accomplish or implement a plan to provide IT staff to Customers. In addition, ArnAmy failed to include information regarding the experience of its Principal Personnel to manage IT staff. Regarding ArnAmy’s IT Staff Contract Experience, Ms. Reaves awarded ArnAmy 150 out of 200 points. Ms. Reaves explained that she did not find in ArnAmy’s proposal responses to two specific requests for information: 1) the total number of IT Staff Augmentation contracts/purchase orders; and 2) the total combined dollar amount of IT Staff Augmentation contracts/purchase orders. However, as became apparent during the final hearing, ArnAmy’s proposal did, in fact, include information on these two specific points. What appears to have happened is that Ms. Reaves missed this information because ArnAmy presented these numbers at the very end (page 14) of its IT Staff Contract Experience section (and in tiny print).13/ In RFP, section 5.2.3, the total number of IT contracts and their combined dollar amount are the first two bullet points listed in the IT Staff Contract Experience criteria section.14/ Accordingly, Ms. Reaves looked for this information in the order set forth in the RFP, i.e., at the beginning of each vendors’ response to this section. (For example, Seva inserted its contract history in the first two lines of its IT Staff Contract Experience submission.) The RFP did not contain any specific instructions on how a vendor was to format its response to this section. At the final hearing, Ms. Reaves testified that she would still have given ArnAmy’s IT Staff Contract Experience a score of 150, even if she had found the entry for total IT contracts. It does appear, however, that Ms. Reaves plainly overlooked this information when evaluating ArnAmy’s proposal. Regarding Seva, Ms. Reaves awarded it 100 points (out of 300) for its Management Plan. She explained that she did not believe Seva adequately explained “how” it was going to accomplish “what was critical” to performing the IT staffing contract. On the contrary, Seva’s proposal lacked specifics, which left Ms. Reaves questioning Seva’s ability to provide quality IT staff for potential Customers. Ms. Reaves awarded Seva 150 out of 200 points for IT Staff Contract Experience. She testified that she could not determine the level or type of Seva’s staffing experience from its proposal. Denise Roberts: Ms. Roberts has spent her entire public service career working in the procurements field for various state agencies. When she was selected to serve as an evaluator, Ms. Roberts was employed as a Purchasing Agent for the Agency for State Technology. During her evaluation, Ms. Roberts moved to the Department of Lottery where she processed procurements, solicitations, and purchase orders. Notably, Ms. Roberts has previously procured IT staff augmentation services, as well as obtained quotes for IT staff assistance for the Agency for State Technology, the Department of Corrections, as well as the Department of Transportation. Additionally, Ms. Roberts is a Certified Public Professional Buyer and a Florida Certified Contract Manager. She does not, however, have any IT experience or training. Nor did she have knowledge of what the IT Job Titles listed in the RFP specifically entailed. Ms. Roberts testified that, before she scored the proposals, she reviewed and understood the RFP, as well as the documents she was to score. In addition, she spoke with the Department’s Procurement Officer (Mr. Atkinson) who provided general guidance on how to score the proposals. Ms. Roberts expressed that she followed the instructions the Department gave her and felt sufficiently trained to evaluate the vendors’ proposals. She also believed that she had enough experience to evaluate proposals regarding IT staffing services. Ms. Roberts explained that she generally conducted the following evaluation process: Initially, she read the vendor’s proposal, followed by a review of the RFP’s requirements. She then reviewed the proposal again to determine how the vendor complied with the RFP criteria. At that point, she scored the proposal. When scoring, Ms. Roberts handwrote all scores onto the RFP’s scoresheet. Thereafter, she input her scores online and submitted them electronically to the Department. Ms. Roberts spent about 30 to 45 minutes evaluating each proposal. Regarding her specific scores, Ms. Roberts testified that she awarded ArnAmy 200 out of 300 points for its Management Plan. She explained that, for a perfect score of 300, a proposal had to meet every aspect the RFP requested in great detail, as well as describe how the vendor was going to accomplish the RFP’s tasks. ArnAmy’s Management Plan, however, was missing information and provided less detail than she expected. Specifically, Ms. Roberts did not find a response to the RFP’s requirements that ArnAmy list the “Respondent’s Principal Personnel who will make management decisions concerning staff placement for services under the contract(s),” or the “role each Principal Personnel” would have in the contract. Regarding ArnAmy’s IT Staff Contract Experience, Ms. Roberts awarded ArnAmy the maximum 200 points. She found that ArnAmy provided “quite a bit” of information regarding its prior experience. Regarding Seva, Ms. Roberts awarded it 0 points for its Management Plan. She explained that she did not believe Seva’s proposal provided the information the RFP requested. Specifically, Seva did not explain “how” it was going to accomplish “any” of the RFP’s staffing requirements. Seva simply offered general comments with no details or step-by-step processes describing how it would acquire, then manage, IT personnel for potential Customers. Neither did Seva include the role its principals would play in its Management Plan. Conversely, Ms. Roberts awarded Seva with the maximum 200 points for IT Staff Contract Experience. She found that Seva provided all the information requested regarding its prior contract experience. Ms. Roberts asserted that she worked independently and did not communicate with the other Evaluators. Further, she testified that she conscientiously used the criteria set forth in the RFP and gave each proposal consistent and fair consideration. Despite the large amount of proposals, Ms. Roberts confidently voiced that she had adequate time to consider, then score, each proposal. Heather Shoup: Ms. Shoup currently serves as the Director of Human Resources for the Department. In this position, she oversees all human resource activities for the Department, including recruitment and retention, benefit administration, classifications, compensation, employee relations issues, orientation, and retirement coordination. Ms. Shoup testified that her professional experience has been primarily in the areas of financial and human resources. In addition, she has experience hiring and managing individuals who provide IT services. However, she has no prior experience in public procurements. In preparing for her evaluations, Ms. Shoup met with the RFP’s Procurement Officer (Mr. Atkinson), as well as reviewed the RFP criteria, the Evaluators Guide, and the Instructions for the Evaluator Score Sheet. Ms. Shoup expressed that she understood her responsibilities and had sufficient training and time to evaluate each proposal. When evaluating, Ms. Shoup relayed that she worked independently through each proposal and scored as best as she could. For a perfect score, she was looking for answers to all RFP criteria. She wanted to see clear, precise responses that provided all information the RFP requested. She specifically reviewed “how” the vendor intended to deliver IT staff support for Customers. Ms. Shoup testified that she spent approximately ten minutes per evaluation. Regarding her specific scores, Ms. Shoup awarded ArnAmy 200 out of 300 points for its Management Plan. She explained that ArnAmy’s Management Plan was missing information regarding its Principal Personnel who would make management decisions under a potential staffing contract. On the other hand, Ms. Shoup awarded ArnAmy the maximum 200 points for IT Staff Contract Experience. She found that ArnAmy’s proposal reflected extensive IT staffing experience. Regarding Seva, Ms. Shoup awarded it 100 out of 300 points for its Management Plan. She explained that Seva’s proposal was “too broad.” Specifically, Seva did not answer the “how” questions in multiple categories. Conversely, Ms. Shoup awarded Seva with the maximum 200 points for IT Staff Contract Experience. She found that Seva’s proposal clearly showed its prior IT contract experience. Finally, Ms. Shoup testified that she fairly scored each proposal she evaluated. She did not have difficulties reviewing the various submissions. Ms. Shoup also expressed that she had adequate time to consider, then score, each proposal. Based on the testimony received, the Department persuasively demonstrated that the Scoring Team “collectively [had] the experience and knowledge” required to score the RFP. Each Evaluator convincingly conveyed her ability to ably participate in the Department’s solicitation process. Although, none of the Evaluators had prior experience in the IT profession, each possessed the acumen and ability to competently conduct a procurement for IT staffing services. Ms. Reaves and Ms. Shoup both had extensive experience in personnel and human resource functions, including hiring and managing employees. Further, Ms. Roberts had broad knowledge in procuring services, including IT staff augmentation services. Finally, upon reviewing their scores again at the final hearing, each Evaluator testified that they would not change their scores. They each credibly expressed that neither ArnAmy nor Seva adequately addressed some or all of the criterion set out in the RFP. Therefore, based on their various professional and educational backgrounds and vocational experience, the undersigned finds that the Scoring Team was fully capable and proficient to review and score all aspects of each of the 374 vendor proposals. The Evaluators were adequately knowledgeable of, and sufficiently experienced for, their task of understanding and evaluating the vendors’ IT staffing plans. Conversely, neither ArnAmy nor Seva established that the Department’s appointment of a Scoring Team consisting of Stephanie Reaves, Denise Roberts, and Heather Shoup was contrary to the governing authority in section 287.057(16)(a)1. The RFP was not Contrary to the Department’s Governing Statutes, Rules, Policies, or the Solicitation Specifications: In addition to describing the Evaluator selection process, Mr. Nilson explained why the RFP limited the number of awards to 200 Contractors per Job Title (plus ties).15/ Initially, Mr. Nilson conveyed that the Department desired that vendors continue to compete to provide staffing services. Two hundred potential Contractors for each Job Title would maintain active competition when Customers requested price quotes. This arrangement would help ensure that Customers would continue to receive fair and reasonable prices in response to a Request for Quote. Secondly, restricting the number of Contractors to 200 would enable the Department to more easily monitor the large pool of vendors. Finally, the Department hoped to keep the Request for Quote process as simple and straightforward as possible for the Customers. When seeking IT staff services, Customers would have a definite and finite list of prospective Contractors. Further, Mr. Nilson added that market research indicated that only about 90 vendors actually participated in the prior/currently existing state term contract. Consequently, the Department determined that economical and fair competition for IT staff services would reasonably end at approximately 200 Contractors. Finally, the Department called Kimberly Stiver to discuss the possibility that an error occurred in the MarketPlace online system that impeded ArnAmy’s attempt to submit the final version of its Management Plan to the Department. MarketPlace is operated by Accenture. Ms. Stiver is Accenture’s Program Manager for MarketPlace. Ms. Stiver testified that, after learning of ArnAmy’s allegations, she and her staff investigated the MarketPlace system to uncover any evidence that would justify ArnAmy’s claim. Ms. Stiver reviewed event logs, the attachment history log, and the system logs to determine whether an error took place within MarketPlace related to the uploading, saving, or transmitting of ArnAmy’s Management Plan. Initially, Ms. Stiver explained that responding to a solicitation takes two steps. First, the vendor uploads the document. Then, the vendor “submits” the document to the agency. After uploading the document, but prior to submitting it, MarketPlace allows vendors to replace, revise, or upload additional documents. After a vendor has “submitted” the document, the agency then accesses the last uploaded and successfully saved version of the document in MarketPlace. At the final hearing, Ms. Stiver declared that, following her detailed inquiry, she found no indication within MarketPlace that ArnAmy was not able to, was prevented from, or encountered any difficulties in properly submitting its Management Plan to the Department. Expanding on her assertion, Ms. Stiver explained that each procurement in MarketPlace is a unique and distinct “event” that tracks key activity from the vendor community. ArnAmy’s activity on MarketPlace relating to this RFP shows that ArnAmy submitted a Management Plan at approximately 1:41 p.m. on March 18, 2019. Based on the event log, Ms. Stiver stated that ArnAmy logged onto MarketPlace only one time on March 18, 2019, and that ArnAmy only uploaded one document identified as its Management Plan at that time. The event log does not support Mr. Kadam’s suggestion that he uploaded multiple versions of a Management Plan which may have resulted in an earlier version being submitted to the Department instead of ArnAmy’s final intended version. The attachment history log also shows that ArnAmy logged into MarketPlace only one time on March 18, 2019, to upload, save, and submit documents. Ms. Stiver testified that, like the event log, the attachment history log does not support Mr. Kadam’s assertion that he saved at least three versions of ArnAmy’s Management Plan in MarketPlace. If Mr. Kadam had uploaded and saved, but not submitted, multiple versions of a Management Plan, Ms. Stiver asserted that the attachment history log would document the entries as “not submitted.” The attachment history log for ArnAmy, however, records no entries or messages with a status of “not submitted.” Finally, Ms. Stiver reviewed ArnAmy’s system log for the period of March 12 through 19, 2019, the time period during which MarketPlace was open to receive vendors’ proposals. The system log shows no system errors occurred at any time while ArnAmy was logged into MarketPlace from March 12 through 19, 2019. Based on her comprehensive explanation, Ms. Stiver persuasively testified that no errors or inconsistencies occurred in the MarketPlace online system that caused an earlier (incomplete) version of ArnAmy’s Management Plan to be submitted to the Department or prevented ArnAmy from effectively and timely uploading its Management Plan in response to the RFP. The logical conclusion is that the discrepancy between the version of ArnAmy’s Management Plan that the Evaluators eventually scored and the final version that Mr. Kadam claims he submitted in MarketPlace was the result of ArnAmy’s unfortunate oversight. The Possibility of “Unbalanced” Bids: Regarding Seva’s (and ArnAmy’s) complaint that the Department failed to identify and reject “unbalanced bids,” Mr. Nilson expressed that the RFP did not prevent vendors from presenting “unbalanced” proposals. Moreover, no statute, rule, or solicitation specification required the Department to reject a vendor’s proposal simply because the hourly rate quoted might be lower than market value for a certain Job Title or Scope Variant. Further, nothing in the RFP directed the Department to conduct a statistical analysis of vendor prices prior to awarding the state term contract.16/ The RFP clearly informed all vendors of the scoring criteria the Department would apply for price. Every vendor was free to submit a hourly rate for each Job Title for which it would agree to abide. The Department uniformly applied the RFP’s price formula to every Job Title from every proposal. Finally, while Seva asserts that the price formula could have led to unfair and/or misleading scoring results, the RFP allowed all vendors (including ArnAmy and Seva) to present “low-ball” prices in their proposals. Further, even if certain vendors did include unrealistic prices for their IT staffing services, the RFP protects Customers by binding a Contractor to the maximum price per Job Title or Scope Variant listed in its proposal. (In fact, a Contractor could offer even lower prices for its IT staff services in response to a Request for Quote.) Finally, regarding Seva’s complaint that its proposal was substantially similar to its previous proposal (which received a higher score), Mr. Nilson commented that Seva’s 2019 proposal was materially different from its 2016 proposal. Seva presented fewer Principal Personnel in 2019 (two versus four individuals). Mr. Nilson surmised this factor may have reduced the amount of IT experience Seva represented. In addition, Mr. Nilson believed that Seva’s prior proposal presented a clearer description of how it intended to recruit, and then place, prospective IT personnel for Customers. In that regard, Mr. O’Donnell confirmed that Seva’s 2019 proposal contained several substantive differences from its 2016 proposal. To summarize the findings in this matter, neither ArnAmy nor Seva established, by a preponderance of the evidence, that the Department’s decision to award only 21 of 130 Job Titles to ArnAmy and 0 of 130 Job Titles to Seva was clearly erroneous, contrary to competition, arbitrary, or capricious. The evidence does not demonstrate that either ArnAmy or Seva were placed at a competitive disadvantage in this solicitation. Neither is there evidence that the Department conducted this procurement in a manner that was contrary to its governing statutes, rules or policies, or the provisions of the RFP. Regarding ArnAmy and Seva’s complaint that the Department did not assemble a qualified Scoring Team, the evidence establishes the contrary. Testimony at the final hearing demonstrated that the individuals the Department assigned to score the vendors’ proposals possessed the “experience and knowledge in the program areas and service requirements for which [the] contractual services [were] sought” as required by section 287.057(16)(a)1. The Evaluators’ scores for ArnAmy and Seva’s proposals were logical, reasonable, and based on a sound understanding of the criteria requested in the RFP.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order dismissing the protests of ArnAmy and Seva, except that the Department should rescore ArnAmy’s IT Staff Contract Experience. Otherwise, the Department should award state term contracts under Request for Proposals for Information Technology Staff Augmentation Services – 3rd Bid, RFP 15-8010H07- SA-D as set forth in the Revised Notice of Intent to Award the RFP issued on June 24, 2019. DONE AND ENTERED this 5th day of February, 2020, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 5th day of February, 2020.
