The Issue Whether Respondent's intended award of a contract to Intervenor, pursuant to Invitation to Negotiate 024-12 (ITN), is contrary to Respondent's governing statutes, Respondent's rules and policies, or the specifications of the ITN?
Findings Of Fact Petitioner is a state agency authorized to enter into contracts for commodities and services subject to the procurement requirements of section 287.057, Florida Statutes [2011].1/ On April 17, 2012, the Department released the ITN which sought proposals to provide an ADLTS. The Department received and evaluated responses to the ITN from three vendors, including MorphoTrust and STS. On May 15, 2012, the Department issued Addendum 1 to the ITN, which answered questions vendors submitted regarding the ITN and replaced pages 31, 39, and 40 of the ITN. After completion of the first stage of [the] process of contractor selection where the Department evaluated the Statement of Qualification and Services Offered (SQSO) submitted by the vendors, the Department released the results of the initial evaluation process and proceeded to enter into negotiations with MorphoTrust and STS. The Department conducted ITN negotiation meetings with the representatives of MorphoTrust on July 10, 2012, and the representatives of STS on July 12, 2012. On July 18, 2012, the Department issued Addendum 2 to the ITN, which replaced pages 16, 23, 40, and 42. On July 26, 2012, the Department issued further instructions to MorphoTrust and STS, including a request for their [BAFO]. At this time, the Department issued Addendum 3 to the ITN, which replaced pages 15, 40 and 42. On July 31, [2012], the Department issued Addendum 4 to the ITN, which replaced page 16 of the ITN. MorphoTrust did not protest the terms, conditions, and specifications contained in the ITN, including any provisions governing the methods for ranking bids, proposals, or replies, awarding contracts, reserving rights of further negotiation, or modifying or amending any contract within 72 hours of the issuance of the ITN or any addendums thereto. On August 10, 2012, the evaluation team held a public meeting to evaluate the BAFOs submitted by MorphoTrust and STS. On August 13, 2012, the Department issued its intent to award the ADLTS contract to STS pursuant to the ITN. On August 16, 2012, MorphoTrust submitted its notice of intent to protest the intent to award the ADLTS contract to STS. On August 27, 2012, MorphoTrust filed its Formal Written Protest and Petition for Administrative Hearing. Section 1.1 of the ITN provides as follows: The Department of Highway Safety and Motor Vehicles, hereinafter called the Department, requests written proposals be submitted for an [ADLTS], which is to be provided at no cost to the Department. The [DHSMV] manages Florida's driver licensing program. Florida law requires a first-time driver to pass knowledge and skills exams prior to issuance of a driver license. The Department seeks to improve the integrity and efficiency of its licensing system by selecting a Contractor to provide a Driver License Testing System for use in State Driver License Offices, Tax Collector Offices and by Third-Party Test Administrators. Section 3.1 of the ITN provides as follows: The [DHSMV] manages Florida's driver licensing program. Florida law requires a first-time driver to pass knowledge and skills exams prior to issuance of a driver license. The knowledge and skills exams are designed to protect the public from hazards posed by unqualified motor vehicle operators. There are two (2) basic types of licenses--operator (Class E) and commercial (Classes A, B, and C). In Florida, Class E driver licenses are issued to drivers operating vehicles less than 26,001 pounds. Applicants must pass two (2) knowledge exams--road signs and road rules in order to obtain a learner's permit and must pass a driving skills exam to become fully licensed. The Department uses an aging web-based automated testing system for the administration of both Class E and commercial driver license knowledge exams in its fifty four (54) State Driver License Offices. In addition, one hundred and fifty six (156) county Tax Collector Offices in fifty two (52) counties also use the Department's automated testing system. Skills exams administered by State and Tax Collector Examiners are documented by hand, with pass/fail scores manually determined and entered into the driver license issuance system. In addition, six (6) Third-Party Contractors administer Class E knowledge exams online. The Department maintains the test databank and has established procedures for Third-Party Administrators to retrieve randomly generated test questions per applicant via web service. Currently, all operator skills exams are administered through State or Tax Collector Offices, with the exception of any teenager who completes a driver education program through their local high school. Driver education graduates are not required to complete additional skills exams. Driver education is currently offered in approximately fifty (50) of the sixty seven (67) school districts and a few private high schools. The majority of Commercial Driver License (CDL) skills exams are administered by third-parties, with less than ten percent (10%) of CDL skills exams administered by State Examiners. Over the next several years, we anticipate the following changes to our business environment. By 2015, all but three (3) of the sixty seven (67) counties will receive driver license services via the Tax Collectors. The Department will maintain driver license offices only in Broward, Miami-Dade, and Volusia counties; approximately twenty-six percent (26%) of all driver license transactions are conducted in these three (3) counties. More third-parties will offer Class E knowledge exams online. DHSMV started this program in July 2011. Seven (7) providers offer exams online now, but several others have applied. Some third-parties will offer Class E knowledge exams in a proctored setting. This option has been on the table since July 2011 and one vendor currently offers proctored exams. DHSMV will provide an opportunity for third-parties to administer Class E driving skills exams. The Department has delayed implementation of this opportunity until the conclusion of this ITN. DHSMV will expect third-parties administering Class E driving skills exams to use the system sought here, at their own expense. The Department will encourage Third- party administrators of CDL driving skills exams to use the system sought here, at their own expense. While we do not expect to mandate the use of this system for existing CDL Third-party administrations, there is a possibility that federal mandates may eventually recommend and/or require it. Section 3.2 of the ITN provides as follows: The Department seeks to improve the integrity and efficiency of its licensing system by selecting a Contractor to provide a NO-COST SOLUTION to the Department for a driver license testing system for use in State Driver License Offices, Tax Collector Offices and by Third-Party Test Administrators. This would include the system, web application and system maintenance, at no-cost to the Department. Third Party Administrators must be provided a consistent methodology for accessing and consuming the web-based tests questions and answers from the Awarded Contractor. The system must consist of: A web-based application for the administration of Class A, B, C, and E driver license knowledge exams in driver license and Tax Collector Offices. The Prospective Contractor must agree to provide this at no cost to the Department. A web-based application for the administration of Class E driver license road signs and road rules exams by third-parties. This system must also be accessible by Driver Education Licensing and Assistance Program (DELAP) administrators at no cost to the School Districts or the Department. A knowledge bank of at least five-hundred (500) questions for Class E road signs and road rules, plus CDL knowledge exam questions meeting American Association of Motor Vehicle Administrators (AAMVA) specifications. This must be provided at no-cost to the Department. A tablet-based solution for the administration of Class E driver license skills exams. Bonus points will be given to Prospective Contractors who provide this solution at no cost to the State for use by State and Tax Collector Offices. All Third-Party Administrators of Class E driver license skills exams will be required to adopt this solution. Third-Party Administrators can be charged for this solution. A tablet-based solution for the administration of Class A, B and C driver license skills exams. Third-party CDL skills exam administrators will not be mandated to adopt this solution at this time, but will be encouraged to do so. Section 3.3 of the ITN provides as follows: [ADLTS] is a centrally administered testing system that supports testing centers in State and Tax Collector Driver License Offices located throughout Florida. The purpose of the system is to perform driver license testing and other testing in a user-friendly Intranet and Extranet environment. The test information is stored centrally in Tallahassee offices of [DHSMV]. The system is a web-based system that is used to display and control all driver license testing, Administrative, Supervisor, Examiner and Extranet functions. The administrators of the ADLTS system control user accounts, testing office information, creating new exam categories, creating new questions, retiring questions and printing reports. In July 2011, the Department implemented a new third-party test administration program for Class E knowledge exams. The Department maintains the test databank and has established procedures for Third-Party Test Administrators to retrieve randomly generated test questions per applicant via web service. Any student who fails an exam is given the opportunity to retest with the Third Party Administrator two (2) additional times for each exam type (road rules and road signs). The Third Party Administrator is required to collect a statutory fee of ten dollars ($10.00) for each retest that is remitted to DHSMV electronically. Each exam is assigned a unique identifying number for tracking and auditing purposes. As part of this program, the opportunity exists for third-parties to administer the driver license knowledge exams in-person in a proctored setting. The Department does not currently provide a user interface application for third-party testers who administer exams on-line or in a proctored setting. Anyone wishing to offer these services must develop their own application to access the Department's web services. We have delayed implementation of this portion of the program until completion of this ITN, as we anticipate mandating that third-party administrators of Class E driving skills exams use the tablet testing system sought herein, at their own expense. All contractual language and current business rules for the Third Party Administration of Class E knowledge exams are available at http://www.flhsmv.gov/ddl/tpdlts.html. Approximately fifty (50) of the sixty seven (67) Florida school districts and several private high schools conduct both Class E knowledge and road tests for their enrolled driver education students through the Driver Education Licensing and Assistance Program (DELAP). The tests administered are the same as the Class E licensing tests given in driver license offices by Department and Tax Collector DL examiners. However, DELAP testers give the knowledge tests on paper forms generated by ADLTS, as they do not have direct access to the Department's electronic testing system. Commercial driver licensing (CDL) in-vehicle skills tests are conducted primarily by about two-hundred and thirty (230) third party businesses and agencies that have the necessary resources. Testing authority is granted by the Department through contracts. Some charge a fee for their services while others test only their own employees and do not. Test procedures are prescribed by federal regulation, following the AAMVA 2005 Model CDL Testing System. Section 4.1 of the ITN provides as follows: The Awarded Contractor will provide a web-based driver license testing system that will be used by Driver License Examiners in offices operated by the Department and Tax Collector Offices at no cost to the Department or County Tax Collectors. In addition, the Awarded Contractor must make available the same web-based solution for purchase by Third-Party Test Administrators. The testing system will include administrative and reporting functions. The awarded Contractor must also provide an option for purchase of a mobile tablet-based hardware/software solution for the administration of driving skills exams that will update the central testing database. The mobile solution will incorporate Global Positioning System (GPS) tracking technology for driving exam routes and time. The commercial driving skills exams must be generated in accordance with Federal Motor Carrier Safety Administration regulations and provide for subsequent updates upon release by AAMVA. Bonus points will be given to Prospective Contractors that offer this solution at no-cost to the Department. The Awarded Contractor will provide a minimum five-hundred (500) question databank of road signs and road rules Class E exam questions, plus CDL knowledge exam questions meeting American Association of Motor Vehicle Administrators (AAMVA) specifications that comports with Florida traffic and licensing laws. The Awarded Contractor may use the Department's existing bank of questions as the basis for the new databank. Currently, road signs and road rules exams are administered as two (2), twenty (20) question tests, but the Department will consider proposals to modify this testing model. For example, the Department would consider proposals for one (1) Class E knowledge exam that including both road rules and road signs questions and increases the total number of questions asked. Currently, approximately ninety five percent (95%) of applicants pass the road signs exam on their first attempt. Approximately forty eight percent (48%) of applicants pass the road rules exam on their first attempt. Please refer to the attached AAMVA Guidelines (Attachment VII) for knowledge and Skill Test Development. The Awarded Contractor is responsible for project planning, coordination, implementation, installation and maintenance, as applicable and must provide the name and qualification of the proposed project manager as part of the bid response. Any changes to the project manager after the ITN is awarded must be requested through the Department in writing. The Department will designate a project manager that will be the primary contact for the ITN. The Awarded Contractor will have access to personal identification data protected by the Florida and federal laws, including the Driver's Privacy Protection Act. The Prospective Contractor must describe in the bid response the security protocols related to employee background checks, training and monitoring. Section 4.2.8 of the ITN provides, in part, that "[a]t implementation, the system must provide replacements for the current test types which include[:] Class E General Knowledge, Road Signs . . . [and] Class E skill [testing]. " Section 4.2.13 of the ITN provides, in part, as follows: With the [BAFO], the Prospective Contractor must submit a price schedule to include a description of each item available for purchase and a purchase or use price. The pricing model may be per item, per license, or per use. While this will be a no-cost contract to the Department and Tax Collectors, price to third-parties will be considered during the evaluation process. An advertising plan must also be submitted by Prospective Contractors. (emphasis added). Section 8.1 of the ITN provides as follows: The Department will appoint an Evaluation Committee. The committee shall complete the evaluation of all valid proposals, in accordance with the criteria set forth in this section. Award will be to the highest scoring proposal, considering the technical proposal scoring and all costs for the five- year contract period, evaluated as described in Section 8.19 of this solicitation. (emphasis added). The reference in section 8.1 of the ITN to "Section 8.19" should be to "Section 8.9." The ITN does not contain a section 8.19. Section 8.9 of the ITN provides as follows: Price will be evaluated by the present value methodology required by Section 287.0572, Florida Statutes, and Rule 60A-1.063, Florida Administrative Code, to determine the lowest cost proposal. The lowest cost proposal will be awarded 15 points. Lowest total cost (LC) divided by proposal being considered (PC) times maximum points score (15) equals points awarded. Formula: LC/PC x 15=score. Section 1.5 of the ITN provides as follows, The Department has established certain mandatory requirements which must be included as part of any proposal. The use of the terms "shall," "must," or "will" (except to indicate simple futurity) in this solicitation indicates a mandatory requirement or condition. The words "should" or "may" in this solicitation indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature will not itself cause rejection of a proposal. Exception: This is a negotiation process. The DHSMV reserves the right to accept alternative means of accomplishing mandatory requirements, with reasonable assurance of satisfactory results, without addendum to this ITN. Such alternative(s) should be clearly identified by the Respondent firm in its proposal. The evaluation criteria set forth herein, and their relative weights, are also subject to modification in the negotiation process. Section 1.9 of the ITN provides, in part, that "[a]ny addenda or written answers supplied by the Department Procurement Officer to participating proposer's written questions become part of this solicitation." Section 1.34 of the ITN provides as follows: The contract resulting from this solicitation process shall consist solely of the purchase order issued by the Department to the successful proposer, this solicitation and any addenda thereto, and the proposal, including any license/use agreement submitted by the successful proposer as part of its proposal except to the extent of any conflict with Florida law or terms and conditions of the proposal. In the event of a conflict among any of the documents referenced herein, the following priority shall apply, with the language of each listed document governing the documents listed below it: The purchase order Any addenda to the solicitation The solicitation The awarded proposal including any agreements. Any agreements which include, but are not limited to installation, licensing, maintenance, software, etc. must be submitted with the proposal and agreed to by the Department during negotiations. Attachment I to the ITN is "State of Florida PUR 1000, General Contract Conditions (PUR 1000)." PUR 1000 is incorporated into the ITN by reference. PUR 1000, paragraph 4.(e), is entitled "Equitable Adjustment." This paragraph provides as follows: The Customer may, in its sole discretion, make an equitable adjustment in the Contract terms or pricing if pricing or availability of supply is affected by extreme and unforeseen volatility in the marketplace, that is, by circumstances that satisfy all the following criteria: (1) the volatility is due to causes wholly beyond the Contractor's control, (2) the volatility affects the marketplace or industry, not just the particular Contract source of supply, (3) the effect on pricing or availability of supply is substantial, and (4) the volatility so affects the Contractor that continued performance of the Contract would result in a substantial loss. Paragraph 1.(b) of PUR 1000 defines "Customer" to mean: [T]he State agency or other entity identified in a contract as the party to receive commodities or contractual services pursuant to a contract or that orders commodities or contractual services via purchase order or other contractual instrument from the Contractor under the Contract. The "Customer" may also be the "Buyer" as defined in the PUR 1001 if it meets the definition of both terms. Question 19, Addendum 1, and the answer related thereto read as follows: Question 19: "Bonus points will be given to Prospective Contractors that offer this solution at no-cost to the Department." Please define if "the Department" includes the Tax Collectors. If not, may the mobile skills test solution be sold to the Tax Collectors as well as the Third-Party Administrators? Answer to Question 19: Bonus points may be given up to a maximum amount of fifteen (15) points. The maximum amount of bonus points will be given if the mobile skills test solution is provided to both the Department and its Tax Collector agents at no cost. A lesser amount of points will be given if the solution is provided to the Department at no cost, and no bonus points will be given if the solution is not provided at no-cost. Question 37 from Addendum 1, and the response thereto, provide as follows: Question 37: Where is the Supplemental Cost Sheet shown in the ITN? Answer to Question 37: Please ignore the Supplemental Cost Sheet. There is only a Price Proposal Form (Section 9.0). Please utilize additional space in a Word, Excel or PDF format for pricing structure, if needed. Please seem amended pages 39 and 40 attached to this addendum. Question 39 from Addendum 1, and the response thereto, provide as follows: Question 39: May the awarded contractor charge a standard user/license fee to each third party administrator for the knowledge test and perhaps the eventual tablet skills test? Answer to Question 39: Yes, the Awarded Contractor may charge a standard user/license fee to each Third Party Administrator. Question 82 from Addendum 1, and the response thereto, provide as follows: Question 82: In regards to the Pricing Proposal Form on page 42 of the ITN, can this form be modified to better present our pricing strategy to the State of Florida? Answer to Question 82: Yes, this form can be modified utilizing Word, Excel or PDF to format a proposed pricing structure. Addendum 2 added to Section 3.2, subsection 4, the underlined language as noted: A tablet-based solution for the administration of Class E driver license skills exams. Bonus points will be given to Prospective Contractors who provide this solution at no cost to the State for use by State and Tax Collector Offices. If the tablet-based solution has a cost to the State and Tax Collector Offices associated with it, the price from Section 9.0 "Price Proposal" shall be utilized. All Third-Party Administrators of Class E driver license skills exams will be required to adopt this solution. Third-Party Administrators can be charged for this solution. Addendum 2 amended Section 9.0, which sets forth the Price Proposal Form to read as follows: Tablet Cost, Per Tablet For Third Party Administrator A $ Annual Cost to Access System for Third Party Administrator, Per Administrator B $ Total Cost A+B=C $ Note: Price Proposal Scoring is only calculated from a per-unit cost. The quantities will vary, based on need. Addendum 3 established the final Price Proposal Form as follows: Initial Term Tablet Cost, Per Tablet for Third Party Administrator A $ Cost To Access System for Third Party Administrator B $ Additional Features C $ Initial Term Total Cost A+B+C=D $ Renewal Term Tablet Cost, Per Tablet for Third Party Administrator E $ Cost To Access System for Third Party Administrator, Per Test F $ Additional Features G $ Renewal Term Total Cost E+F+G=H $ Total Cost D+H=I $ Note: The quantities will vary based on need. Additional Features can include any startup fees, maintenance or system enhancements. Please use additional space, if needed, to expand on Additional Features. Addendum 4 removed from the ITN the requirement that the successful proposer supply a damages bond. Deletion of Damages Bond Requirement Section 2.5 of the ITN, labeled "DAMAGES BOND," as originally set forth provided as follows: The proposer shall supply to the Department with the performance bond a bond for the payment of any liquidated damages as may become due and payable to the Department arising hereunder, in the face amount of 5% of the total cost for the project. The bond must be renewed annually no later than fourteen (14) business days prior to the beginning of the next contract or renewal period (if renewed). For the second and subsequent contract and renewal periods, the renewal bond amount must equal or exceed five percent (5%) of the total price amount proposed for the corresponding contract or renewal period in the proposer's proposal. Soon after issuance of the ITN, companies that were considering submitting a proposal were given the opportunity to tender questions regarding the ITN to the Department. One of the questions submitted by MorphoTrust in response to the ITN states that "[g]iven the unique model that the state has requested in the ITN, would the state be willing to negotiate [an] alternative liquidated damage clause to better reflect the proposed solution?" The Department's response to the inquiry stated that this issue could "be discussed during the negotiation phase of the ITN process." Intervenor STS, in response to the ITN, also posed a question to the Department regarding the bond requirements. STS's question and the Department's response thereto provide as follows: Question: In regards to the bonds, what value/cost is the bond supposed to represent? Is this value the price that the State of Florida is required to pay to the contractor for the five year contract period? Or, is the value the total expense that the contractor has invested in the contract for the five year period? Response: The bonds must be in the amount [of] five percent (5%) of the total pricing structure proposed by the Prospective Contractor. As previously indicated, the Department, during the period July 9 through 12, 2012, met with representatives from MorphoTrust and STS to negotiate the proposal and view demonstrations. During the negotiation and demonstration sessions, representatives from MorphoTrust and STS informed the Department of their concerns about the apparent redundancy of the ITN requirement to have both a performance bond and a damages bond. According to MorphoTrust, the Department agreed to review the performance and damages bonding requirements. Addendum 2 was issued by the Department and this addendum, among other things, changed section 2.5, Damages Bond, of the ITN to read as follows: The proposer shall supply to the Department with the performance bond a bond for the payment of any liquidated damages as may become due and payable to the Department arising hereunder, in the face amount of five hundred thousand dollars ($500,000.00). The bond must be renewed annually, no later than fourteen (14) business days prior to the beginning of the next contract or renewal period (if renewed). For the second and subsequent contract and renewal periods, the renewal bond amount must equal five hundred thousand dollars ($500,000.00). On July 24, 2012, Jim Sodero, on behalf of STS, sent an email to Jon Kosberg to reiterate his concerns about the bonding requirements. The email provides as follows: Hi Jon, Thank you very much for the opportunity to bid and demonstrate our product. We have reviewed your request for a BAFO, and are currently exploring our options. Unfortunately, as we had mentioned during our demonstration, it is very likely your bond requirements prevent us from proceeding further. We are once again looking for a bond company that will cover this 'no cost' proposal, but are having great difficulty. At the meeting you thought you might be able to offer the names of some companies that have done this in the past. We would very much appreciate any information you can provide. Again, the bonding company's main concerns are that the State is not accepting a risk correspondent to the value of the bond. There is some risk no question, but it is STS that will assume the greater risk of investing over 2 million dollars in equipment and manpower with the hope of financial recovery over a long term contract. They feel, and we have to agree, that the hardware investment itself should guarantee that this is a contract that we will not walk away from and will service to the best of our abilities. Another way of looking at this is to remember that STS proposed a "free off-the-shelf" system with a proven track record that has provided millions and millions of exams in many jurisdictions over a period of 18 years. Again, I don't wish to minimize that the State has some risk, but asking for a bond on a proven product with an impeccable record would be like telling Microsoft that you wish a multi-million dollar bond to cover any potential risk of losing information in Microsoft Word, after they have given you the product at no cost. Solutions Thru Software is extremely interested in this contract and at the prospect of working with the State of Florida, however at present we have a better chance than not of being forced to withdraw. This would be a terrible situation as Solutions Thru Software is the leading vendor in solutions such as this and has been doing so longer than any other company in the market. One possible compromise may be to add Florida as a named beneficiary on our insurance policy as an alternative to a Bond. Solutions Thru Software carries 2 million dollars in Liability, and we have had other customers accept this as a means of protecting their risk in the past. Any assistance you can provide would be greatly appreciated. Of course time is of the essence. If we cannot find a bonding company by your August 1st deadline, then STS will be forced to submit a No-Bid in response to the BAFO. Sincerely, Jim The following day, on July 25, 2012, Mr. Sodero sent Mr. Kosberg another email regarding the bonding requirement. This email provides, in part, as follows: The performance bond and damages bond continue to be issues. The companies that we are dealing with still believe this is a highly irregular request. To provide a quote from their latest email, "I'm not sure the Damages Bond will be something they'll want to consider. It's an odd request." We are proceeding with the application at any rate, and if you can provide other companies, we will proceed with the paper work for them as well. Addendum 3 issued by the Department, among other things, modified the Calendar of Events section of the ITN. The original ITN provided that "best and final offers" were due no later than 2:30 p.m. (EST), on August 1, 2012. Addendum 3 changed the due date for "best and final offers" to August 3, 2012. On July 27, 2012, STS sent additional emails to the Department regarding the bonding requirements. The first email was sent at 8:15 a.m. (CST), by Jim Sodero to Jon Kosberg. The email states as follows: Hi Jon, I just thought I would let you know that I am currently writing up a formal request to have the bond request eliminated or modified as per section 2.7. . . If there are any requirements which restrict competition, the respondent may request, in writing, to the Procurement Officer identified in Section 1.3 that the specifications be changed . . . The matter is not as to whether we can get a bond as it is looking like we will be able to. The problem is that we only have slightly over one week from the time the bond value was set, until the a [sic] guarantee of such bond must be provided with the BAFO. We have also had our lawyers review section 5.6 5.6 WITHDRAWAL OF SQSO: Withdrawal of SQSO's may be requested within 72 hours (excluding State holidays, Saturdays, and Sundays) after the opening time and date. Requests received in accordance with this provision may be granted by the Department upon proof of the impossibility to perform based upon an obvious error. They identified two problems with this section. The first is that it is not clear as to whether the 72 hours if [sic] from the opening of the original bid, or the BAFO. The second is that they do not believe there is sufficient guarantee that an obvious error can be demonstrated given that we have been discussing this bond limitation since the onset of preparing this bid. Please give me a call if you wish to discuss this prior to me sending out our formal request. Jim A few hours later, Jim Sodero, at 11:14 a.m.(CST), sent a second email to Jon Kosberg which states as follows: Mr. Kosberg, Re: Request for removal of Conditions that Restrict Competition As per section 2.7, Solutions Thru Software wishes to identify a requirement which restricts our ability to compete in this RFP process. This is a concern that was identified when submitting our submission for the original RFP. Some clarification was provided by the State through the BAFO request, but unfortunately, as it stands, this concern still prevents Florida from receiving a full complement of competitive bids for this RFP. The issue specifically concerns the bond requirements stated in sections 2.3 Proposal Bond, 2.4 Performance Bond, and 2.5 Damages Bond. Although bond requirements are common in many government contracts, they are not common in the industry of knowledge testing. This is due to the relatively low inherent risk assumed by the State. As the longest standing company in the business, Solutions Thru Software has not been required to obtain any bonds in our 18 years of impeccable service to the industry. As a "zero cost bid," the risk to the State of Florida is even less than is typical for the industry. For Florida, it is Solutions Thru Software who will finance and install literally millions of dollars in hardware and software for the purpose of knowledge testing for the State. The only risk to Florida is the potential of delay of service due to infrastructure failure, but no actual loss of service would exist as history has shown that the designed redundant system recovery is both seldom used and results in very short outages. Our request for a RFP/BAFO modification is based on: With 18 years of bond free service, it cannot be expected that STS would have a 'standing' bond in place or a history of successful bond completion. As the total value of the bonds was not known until the release of the BAFO, it was impossible to be pre-approved for the bonds in question, leaving only 9 days to apply and be approved. The bonding companies we have spoken with have said that this timeline for a new bond is not possible. The bonding companies have indicated that there is insufficient information on the surrender requirements for the bonds. In particular, they are confused as to the differences between the performance bond and the damages bond and why both must be renewed annually for the duration of the contract. In their opinion, the performance bond should cover the period between the onset of the contract and the final sign off by the state that Solutions Thru Software has installed an operational system that satisfies the terms of the contract. At this point, the performance bond should be released and the damages bond put in place and renewed annually to protect the State for potential losses during operation of the system. If both bonds must remain in place, then they believe the State must clearly identify the types of problems that will result in the surrendering of each bond. Although verbal assurance has been given that Solutions Thru Software 'should' have no difficulty in obtaining the performance bond, the bonding companies are more hesitant regarding the damages bond without further clarification being provided by the State. Given this situation Solutions Thru Software is very concerned with the risk of submitting the bid bond without receiving written assurance that the bid bond will be returned if the bonding companies are unwilling to accept the surrender conditions of the State. The State has recommend[ed] that we continue with the bid process with plans of using the "72 hour" clause to pull our bid if necessary, but upon review of this clause, it is still unclear if failure to secure a bond can be demonstrated as an obvious error given that we have already pointed out this shortcoming through the RFP and BAFO process. It is also very unlikely that 72 hours will make the difference on the bond approval, as the first thing that they need is clarification from the State. It is our opinion that the above points demonstrate an uneven playing field. Bonds have not been a standard requirement in this industry in the past and it cannot be expected that all companies will have 'standing' bonds in place. The only companies that will be able to respond to this RFP/BAFO will be companies that have other services that have required bonding, or possibly may have a track record that has warranted a need for bonding. Solutions Thru Software respectfully request that the State of Florida takes one of the following actions: Remove the bonding requirements Modify the requirements to state that the performance bond will ensure an operational system meeting requirements and that it will be returned upon State sign- off. And, modify the requirement of the damages bond to be annually renewable bonds to cover the period of operation. And, extend the requirement date for submission of the performance bond and damages bond and provide in writing that failure to obtain these bonds will not result in forfeiture of the bid bond. Thank you very much for your consideration of this request. Jim At approximately 11:30 a.m. (CST), on July 27, 2012, Jon Kosberg sent an email alerting prospective bidders to the fact that Addendum 3 had been posted the previous day. Mr. Sodero, in response to Mr. Kosberg's email, sent his third email of the day to Mr. Kosberg at 2:56 p.m. (CST), and stated therein the following: Thanks Jon, I appreciate you forwarding Addendum 3 to us. However, our request for re-evaluation of the bond requirements still stands on the grounds that it creates an uneven playing field. It does not address the concerns that our bonding companies have expressed to us. As well, it only allows companies that have other products that typically require bonds to be able to make the proposed deadline. That is, companies that have a precedent for this type of request or, they have substantial financial backing (i.e. millions if not billions of dollars) making their request to a bonding company much more palatable. Jim On Tuesday, July 31, 2012, at 3:19 p.m. (EST), Mr. Kosberg sent an email to MorphoTrust and STS advising that Addendum 4 had been posted. This addendum deleted the requirement for a damages bond as previously required by section 2.5 of the ITN. Less than an hour and a half after the posting of Addendum 4, Ms. Openshaw, vice-president of State and Local Sales for MorphoTrust, was speculating that the Department deleted the damages bonding requirement to assist STS. Specifically, Ms. Openshaw stated, "I wonder if this addendum is because STS said they needed relief on some of the 'bondage' or they would not bid." On Wednesday, August 1, 2012, Mr. Sodero emailed Mr. Kosberg regarding Addendum 4 and stated therein the following: Hi Jon, we are still at the office getting this proposal out the door, but I wanted to send you the latest from our bonding company, as we will have to remain diligent on this to meet the time line. We appreciate the changes you have made, however, they are still not meeting the main concerns of the bonding company. In explaining why the Department decided to delete the requirement for a damages bond, Mr. Kosberg indicated that the Department "decided to look [at] what would be in the best interests of the Department," and through this process determined that, [B]ecause of the unique model of this no cost solution and both vendors telling us that, you know, bonding may be redundant, we realized that we can achieve what we need in our requirement for bonding by holding strong to the performance bond and the proposal bond, while at the same point . . . remov[ing] the damages bond because of the redundancy, and we realized by removing that damages bond, we may ultimately realize better pricing for the third party administrator, because ultimately every requirement that we put in this ITN gets pawned off, you know, the price, to whoever may be paying for this particular type of service or item. (Transcript pg. 797) Petitioner suggested that section 2.7 of the ITN precluded the Department from considering and acting upon STS's request to change the bonding requirements. Section 2.7 of the ITN provides, in part, that if a proposer believes that there are requirements in the ITN that restrict competition, the proposer may request in writing that the requirements be changed by the Department and that any "requests for changes to the solicitation, must be received in writing by the Issuing Officer no later than the date and time specified in the Calendar of Events (May 1, 2012, at 4:00 p.m. Eastern Time)." Section 2.7 also states that "[a] respondent's failure to request changes by the date described above, shall be considered to constitute respondent's acceptance of Department's specifications." As an initial matter, it is important to note that both STS and MorphoTrust voiced concerns about the ITN's bonding requirements well after May 1, 2012. While it is true that section 2.7 of the ITN directs that requests for changes to the solicitation must be received by the Department by some date certain, the requirements of section 2.7 must be read in conjunction with the other provisions of the ITN. Section 1.3 of the ITN provides, in part, that "[t]he Procurement Officer, acting on behalf of the Department, is the sole point of contact outside of official conferences and meetings with the agency's team, with regard to all procurement matters relating to this solicitation, from the date of release of the solicitation until the Department's Notice of Intended Award or Decision is posted." Also, Addendum 1 to the ITN makes it clear that the Department reserves the right to post addendums to the ITN as necessary. In reading these provisions together, it is clear that the ITN process is one where proposers are allowed to voice concerns about "all procurement matters" relating to the solicitation during the window of time between the date of release of the solicitation and the posting of the Department's Notice of Intended Award or Decision. The Department, in accordance with section 2.7, is always free to inform a respondent, as appropriate, that their failure to adhere to the established timeline constitutes "acceptance of the Department's specifications." It cannot, however, be said that section 2.7 precludes, as a matter of law, the Department from deleting provisions of an ITN subsequent to the date by which proposers are to submit questions and recommended changes. Generally, the Department is free to make changes to the provisions of an ITN prior to the submission of BAFOs as long as the changes do not favor, or create the opportunity for favoritism of, one bidder over another. See generally City of Miami Beach v. Klinger, 179 So. 2d 864 (Fla. 3d DCA 1965). The Department credibly explained its rationale for deleting the damages bond requirement, and there was no contrary credible evidence offered by MorphoTrust demonstrating that the Department's stated reasons are pretextural. Petitioner's argument that the Department impermissibly favored STS by deleting from the ITN the damages bond requirement is not supported by credible competent evidence. The Relevant ITN Specifications are not Ambiguous Petitioner alleges that "the Department's proposed award is contrary to the statutory requirements for a competitive solicitation" and is "contrary to the bid documents" because "[t]he only two vendors who submitted BAFOs interpreted the required Price Proposal Form completely differently." In furtherance of the allegation, Petitioner contends that the proposers were confused throughout the procurement process about how they were going to "recoup the costs associated with the no cost contract" and that this confusion resulted in the proposers developing divergent assumptions and proposals that prevented the Department from being able to conduct "a comparable analysis of the proposals." Petitioner's allegations are without merit. As an initial matter, Petitioner's assertion, that its proposal was "completely different" from that of STS because of confusion about the specifications of the ITN, is a challenge to the specifications of the ITN. This challenge to the allegedly ambiguities in the specifications is untimely given that Petitioner failed to initiate a written protest to the alleged ambiguous specifications within 72 hours of posting of the solicitation. § 120.57(3)(b), Fla. Stat.; Capeletti Bros., Inc. v. Dep't. of Transp., 499 So. 2d 855 (Fla. 1st DCA 1986). Nevertheless, even if the merits of Petitioner's argument are considered, the plain language of the bid specifications do not reasonably support Petitioner's claim of ambiguity. It is well established that bid specifications "must be sufficiently specific to permit bidders to bid upon the same product, and factors thereof which are of such importance as to be given special consideration in determining the successful bidder should be so covered in the specifications as to detail to all bidders the standards anticipated, the tests the product must meet, and all factors upon which the product will be judged and the award made." Robinson's, Inc. v. Short, 146 So. 2d 108, 113 (Fla. 1st DCA 1962). In a competitive bid process, one of the main objectives is to be able to "make an exact comparison of bids." Clark v. Melson, 82 Fla. 230, 89 So. 495 (1921). In support of its contention that the bid specifications were confusing, Petitioner cites to the Price Proposal Form as reflected in Addendum 3. According to Petitioner, the portion of the Price Proposal Form that addresses the "cost to access system" reasonably caused Petitioner to believe that "the system" to which the form referred was the "knowledge testing solution" only, and thus, resulted in Petitioner not including in its proposal a fee for skills testing. This conclusion by Petitioner is not reasonable given that throughout the ITN, the Department made it clear that "the system" included the hardware, software, and other issues associated with the administration of driving skills exams. Section 1.1 of the ITN indicates that the Department is looking "for an [ADLTS], which is to be provided at no cost to the Department." In section 3.1 of the ITN, the Department provides "background" information about the current test administration system in Florida for both knowledge and skills examinations for Class E operators. Specifically, as to skills examinations, section 3.1 notes that applicants must pass both a knowledge and skills exam, that skills examinations currently "administered by State and Tax Collector Examiners are documented by hand, with pass/fail scores manually determined and entered into the driver license issuance system." Section 3.1 also notes that "currently, all operator skills exams are administered through State or Tax Collector Offices, with the exception of any teenager who completes a driver education program through their local high school." Section 3.1 of the ITN further notes that over the next several years, the Department "will provide an opportunity for third- parties to administer Class E driving skills exams" and that the Department "will expect third-parties administering Class E driving skills exams to use the [ADLTS] system sought [by the ITN] at their own expense." Section 3.1 clearly communicates a desire by the Department to include within the scope of the ITN issues related to skills testing. This conclusion is further supported by other provisions of the ITN. Section 3.2 of the ITN provides that the Department seeks a testing system that must include among other things "[a] tablet-based solution for the administration of Class E driver license skills exams." Section 3.3 of the ITN provides that the Department anticipates "mandating that third-party administrators of Class E driving skills exams use the tablet system sought [by the ITN]." Section 4.1 of the ITN provides that "the awarded Contractor must also provide an option for purchase of a mobile tablet-based hardware/software solution for the administration of driving skills exams that will update the central testing database." Section 4.2.8 of the ITN makes it clear that when implemented, "the system" must provide "replacements for the current test types, including Class E skills testing." While it may be true that Petitioner was confused, it cannot reasonably be said that the source of Petitioner's confusion was the specifications of the ITN. Contrary to Petitioner's allegation, the evidence establishes that STS's interpretation of the Price Proposal Form was consistent with the specifications of the ITN and that the specifications of the ITN were sufficiently clear so as to allow MorphoTrust and STS to bid on the same product. A more likely source of Petitioner's confusion about the scope of the ITN can be found in Petitioner's general unfamiliarity with the concept of combining knowledge and skill testing as part of a single solution. According to Petitioner, "[n]o jurisdiction in the United States has previously issued a competitive procurement requiring a solution combining knowledge tests and skills tests as part of a no cost solution." Whether this is a true statement or not, it is evident that the lens through which Petitioner viewed the ITN was one that focused on knowledge testing as being the only source for generating revenue from test fees. By contrast, STS, through its operations in Canada, has merged knowledge and skill testing as part of a no cost solution and saw the opportunity to do so in Florida based on the unambiguous specifications of the ITN. Petitioner's next basis for challenging the proposed award is that "the Department's proposed contract award is not based on a reasonable comparison of the anticipated overall cost of the two vendors' proposals and the proposed contract award fails to reflect a determination of best value to the state." Section 8.1 of the ITN provides that the "[a]ward will be to the highest scoring proposal, considering the technical proposal scoring and all costs for the five-year contract period." Section 8.9 of the ITN references the methodology for evaluation of costs for the five-year contract period and provides that the lowest cost proposal would be awarded 15 points. Based on the formula, Petitioner was awarded 2.5 cost proposal points, and STS was awarded 15 cost proposal points. When totaling all scoring categories, MorphoTrust received 168.1 points, and STS received 191.6 points. The Department's consideration of the technical and cost aspects of the respective proposals resulted in the proper determination of the "best value" to the State as required by section 287.012(4). As for the issue that the proposed contract award is not based on a reasonable comparison of the anticipated overall cost of the two vendors' proposals, Petitioner specifically alleges that the cost scoring system was flawed because the Department "did not recognize or incorporate the very significant pricing assumptions and cost differences of the vendors in evaluating the ITN responses." This allegation is not supported by credible competent evidence. Any pricing assumptions made by the proposers to the ITN should have as its foundation the information found in the ITN. Sections 3.1, 3.2, 3.3, and 3.6 of the ITN are particularly instructive to proposers when developing their "assumptions" for purposes of creating a cost proposal. These sections of the ITN describe the Department's current state of affairs and where the Department desires to be in the future with respect to driver license testing. In particular, Section 3.6 provides very specific information about the number of driver license examinations administered by type and how test volumes are likely to be impacted by future events. MorphoTrust's written price proposal details an $8,000.00 per entity, one-time tablet set-up fee, if there is a "minimum of 40 entities." In evaluating this assumption, it was noted by the Department that MorphoTrust's proposal is silent regarding what the fee would be if there are less than 40 entities. By comparison, STS's proposal reflects a per tablet cost of $2,219.50 regardless of the number of entities purchasing tablets. A MorphoTrust tablet costs nearly four times as much as a tablet offered by STS. MorphoTrust in its price proposal identified "knowledge testing tiers" where the price would be $10.00 per test for testing volumes between 100,000 to 149,999; $7.50 per test for testing volumes between 150,000 to 199,999; and $4.95 per test for testing volumes in excess of 200,000. By comparison, STS charges $4.42 per test for knowledge and skills tests respectively, with the price for each test decreasing if annual testing volumes exceed 500,000 tests per fiscal year. Each of these assumptions, as well as others, was considered by the Department when evaluating the respective price proposals. MorphoTrust argues that the Department's evaluation of STS's proposal failed to consider the fact that STS intends to charge $4.42 for each of the two portions of the knowledge test as opposed to a single charge of $4.42 for the entire knowledge test. In calculating the total cost of STS's proposal, the Department determined the cost to be $6,447.84 using a single knowledge test fee of $4.42. If STS's knowledge test fee is doubled to $8.84 to reflect the cost for charging for both portions of the knowledge test, then the total cost of the proposal, using the department's formula, increases to $6,452.00 dollars. The amount of $6,452.00, when compared to MorphoTrust's total cost of $38,659.90, is still the better value for the Department, third-party administrators, tax collectors, and ultimately the public. To the extent that MorphoTrust suggests that its pricing structure would have been different had it known that the ITN allowed for a per test fee for skills testing, this suggestion is without merit as explained elsewhere herein. Petitioner did not Prove STS's Proposal is Non-Responsive MorphoTrust alleges that STS's proposal should be rejected as non-responsive for three reasons. First, MorphoTrust contends that STS's BAFO proposal does not meet the mandatory performance bond requirements of the ITN. Section 2.4 of the ITN provides, in part, that "[t]he successful proposer shall supply no later than '14 calendar days of award,' a Performance Bond issued by an insurance company licensed by the State of Florida Department of Insurance." Because section 2.4 of the ITN uses the word "shall" in setting forth the performance bond requirement, this requirement is considered a mandatory provision of the ITN, and the proposal must provide an explanation of how the requirement will be satisfied. Section 1.5 of the ITN provides that the Department "reserves the right to accept alternative means of accomplishing mandatory requirements, with reasonable assurance of satisfactory results, without addendum to this ITN." STS proposed two options in its BAFO to satisfy the performance bond requirement. The two options provide as follows: Performance Bond Costs Option 1. Bonding companies have given us an estimate of the expected yearly cost of the bond, however we would like to have additional conversations with the State on surrender conditions. Solutions Thru Software will only charge the exact cost of the bond, without markup or handling fees. The following would be a one-time fee for the five year contract. $TBD (estimated at 3%) Performance Bond Costs Option 2. If the state prefers, the bond cost can be added onto the per test fee for an estimated additional. $TBD (estimated at 3%) On August 10, 2012, after submission of BAFOs by the proposers, Mr. Kosberg sent an email to Mr. Sodero at STS and stated therein the following: Jim, Per our discussion I am clarifying the following: The option related to the Performance Bond that will be suitable for the State would be to add the cost onto the per test fee, which you identified as an additional 3%, which totals $0.13 per test, bringing the per test fee from $4.29 to $4.42 per test. Mr. Sodero, in response to the inquiry from Mr. Kosberg, confirmed that the "13 cents per test is a firm price to cover all bond costs . . . [and that STS] will honor the 13 cents per test cost and assume any financial risk should cost go beyond this point." In considering STS's proffer with respect to the performance bond requirement, it is clear that in its BAFO response, and its clarifying statement related thereto, that STS affirmatively represented that it was prepared to comply with the performance bond requirement. Simply stated, STS's proposal as to the performance bond requirement is responsive. As the second ground for rejection of STS's BAFO as being non-responsive, MorphoTrust contends that STS impermissibly submitted a "post-scoring amendment" to its pricing proposal in violation of the specifications of the ITN. The alleged "post scoring amendment" occurred when STS clarified the extent to which the three-percent bond premium would impact its cost proposal. Section 1.48 of the ITN provides that "[t]he Department reserves the right to contact any and all proposers for the clarification of responses to th[e] solicitation in accordance with the attached Form PUR 1001, Paragraph 15." Form PUR 1001, paragraph 15, provides that "[b]efore award, the [Department] reserves the right to seek clarifications or request any information deemed necessary for proper evaluation of submissions from all respondents deemed eligible for Contract award." Contrary to the allegations, STS did not amend its BAFO in an improper manner as suggested by Petitioner, but, instead, merely clarified its BAFO in response to an inquiry from the Department as authorized by the ITN. In its third ground for rejection of STS's BAFO as being non-responsive, MorphoTrust contends that "[t]he STS proposal should . . . be rejected because it modified the required Price Proposal Form to include a per test cost to be charged for 'skills testing.'" This ground, like the others, is also without merit. Section 1.44 of the ITN provides, in part, as follows: "The proposal forms furnished must be submitted with your proposal. Forms to be filled out in pen or ink or typewritten with no alterations, changes or amendments made within." (emphasis added). As previously noted, section 1.5 of the ITN provides that "[t]he use of the terms 'shall,' 'must,' or 'will' (except to indicate simple futurity) in this solicitation indicates a mandatory requirement or condition." Consistent with section 1.5, the only relevant portion of section 1.44 that is mandatory is the requirement that "proposal forms must be submitted with [the] proposal" because this is the only portion of section 1.44 that uses the mandatory term "must." As for the portion of section 1.44 that deals with the substance of the form, it is only noted therein that the pricing forms are "to be" filled out a certain way. "To be" is not identified in the ITN as imposing a mandatory requirement or condition. Additionally, even if the original ITN can be read as requiring that the pricing form not be altered, changed, or amended, the Department, in the answers to questions 37 and 82 in Addendum 1 to the ITN, authorized changes, amendments, and alterations to the pricing forms. In response to question 37, the Department stated that "[t]here is only a Price Proposal Form [so] [p]lease utilize additional space in a Word, Excel or PDF format for pricing structure, if needed." Question 82 asks, "[i]n regards to the Pricing Proposal Form on page 42 of the ITN, can this form be modified to better present our pricing strategy to the State of Florida?" The Department, in reply to Question 82, responded "[y]es, this form can be modified utilizing Word, Excel or PDF to format a proposed pricing structure." Petitioner failed to present credible evidence demonstrating that STS altered the Price Proposal Form in a manner inconsistent with the requirements of the ITN.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Highway Safety and Motor Vehicles, enter a final order adopting the Findings of Fact and Conclusions of Law set forth herein and dismissing MorphoTrust's protest as untimely, as indicated, and otherwise unsubstantiated.3/ DONE AND ENTERED this 7th day of December, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 7th day of December, 2012.
Findings Of Fact The parties stipulated to the facts set forth in paragraphs 1-5, below. Stipulated Facts James Phillips is the president and sole shareholder of the Respondent, Sunshine Auto Sales, Inc. The Respondent's place of business is located at 2050 North West 36 Street, Miami, Florida 33142. The Respondent was issued motor vehicle dealer license number 7VI- 005928 on May 1, 1987. The Petitioner's order summarily suspending Respondent's license was dated September 17, 1987, and was served on Respondent on or about November 9, 1987. On December 22, 1987, the Circuit Court for the 11th Judicial Circuit, in and for Dade County, Florida, entered an emergency injunction against enforcement of Petitioner's Order of Summary Suspension, contingent upon the posting of a $2500 bond by Respondent. The bond was posted on March 31, 1988. Other Facts On November 17, 1976, Respondent's president and sole shareholder, James Phillips, executed a sworn affidavit as part of the application for a motor vehicle dealer license. In that affidavit, he stated that no partner or corporate officer of the Respondent had ever been arrested or convicted of a felony. In subsequent annual renewal applications for the years 1977-84, Phillips stated that all terms and conditions as set forth in the original application were correct. In actuality, Phillips was arrested for breaking and entering, theft and rape in 1956. In 1960, he was arrested for aggravated assault. In 1972, he was arrested for possession of a stolen motor vehicle. Grand larceny was the subject of his arrest in 1976. In 1982, he was arrested for aggravated battery. Phillips' statement that he interpreted this language on the application and renewal forms to be applicable only to the corporation itself is not credited due to his demeanor while testifying and the clarity of the statement on the application requiring such disclosure. The Petitioner's policy is not to deny or revoke licenses simply on the basis of an arrest record of the applicant or licensee. Instead, when the information is correctly provided by applicants or licensees, a further investigation is made by the Petitioner to determine if there has been a conviction of a crime meriting suspension or denial of a license. When Petitioner becomes aware that an applicant or licensee has falsely answered an application regarding previous arrests, the policy of Petitioner is to deny the application for licensure or institute revocation action against a licensee on the theory that such falsification shows a lack of honesty in the applicant or licensee. On February 24, 1986, and May 20, 1986, James Phillips received warning letters from the Department reminding him that failure to apply for title or to file for transfer of title within 20 days following delivery of a vehicle to a purchaser is a violation of Florida law. In June and July of 1987, an employee of Petitioner, Helen Wandell, made numerous attempts to obtain information from Respondent regarding a particular complaint against Respondent. Information was sought by Wandell regarding the identity of the vehicle which was the subject of the complaint. She telephoned Respondent's facilities on June 10, 11, 12, and 16, 1987, during regular business hours and received no answer. On June 17, 1987, Wandell went to the Respondent premises during regular business hours and found the facility closed. She left a note and James Phillips called her the following day. He gave her information concerning the subject vehicle which proved to be incorrect. Again, Wandell attempted to contact Respondent's establishment by telephone on June 22, and 23, 1987, but did not get an answer. She telephoned again on July 24, 1987, and spoke with Phillips. In the course of the conversation, he informed Wandell that he could not provide the vehicle identity information she sought. He further warned her not to call again, cursed her and threatened to kill her. Madeline Fils-Aime does not read or understand English very well. On April 8, 1987, she entered into a parol agreement to buy a 1981 Mercury automobile from Respondent. The agreed upon price, as established by testimony of Fils-Aime, was $750. This amount was to be paid in installments as the money became available to Fils-Aime. Until the total amount of $750 was paid, the car would continue to be owned by and remain in the Respondent's establishment. On April 8, 1987, Fils-Aime paid $160 to Robert Sayre, James Phillips' stepson, at Respondent's establishment toward the cost of the automobile. She received a receipt from Sayre. The receipt carried the notation "no refunds" and "sold as is." The receipt also carried a notation that the remainder of the funds would be due on April 15, 1987. Fils-Aime returned to Respondent's establishment on April 16, 1987, paid another $100, received another receipt signed by Sayre carrying a notation that the remainder would be due on April 26, 1987. This receipt also carried the notation "no refunds." Fils-Aime returned to the Respondent establishment again on April 21, 1987, and paid another $40 on the car. This time she received a receipt signed by Thomas Phillips, son of James Phillips, which carried the notation that the balance would be due on May 7, 1987. Another payment of $100 was made by Fils-Aime on May 4, 1987. Another receipt bearing the signature of Robert Sayre was received. A new balance due date of May 14, 1987, was shown on this receipt. Fils-Aime returned at a later date to make a subsequent payment, but the Respondent's establishment was closed. Approximately six weeks after the May 4, 1987, payment, Fils-Aime returned to Respondent's establishment to learn that the car for which she had been making payments was gone. Testimony of James Phillips establishes the sale of the vehicle to another person. Phillips also readily admitted knowledge of the payments made by Fils-Aime and the practice of granting extensions to her of the due date for the total balance at the time of each payment. Since his clientele is poor, he uses the "lay away" plan on occasion to sell vehicles to individuals like Fils-Aime. In spite of her demands, he did not return Fils- Aime's previous payments to her. At the time of the May 4, 1987, payment, Phillips gave Fils-Aime an envelope to use in the event the Respondent facility was closed on her return to make a future payment. He instructed her to leave the envelope with the body shop next to Respondent's establishment. A contractual document offered in evidence at hearing by Respondent to substantiate James Phillips version of the parol agreement with Fils-Aime is not credited with any probative value. The document appears unsigned by anyone and the portion of the page where Fils-Aime would have signed is conveniently torn off and missing. Additionally, Fils-Aime denied knowledge of the document. After receipt of a complaint by Fils-Aime, the Petitioner's employee was denied access to Respondent's premises to inspect Respondent's records on July 21, 1987. The request was made during reasonable business hours and within the business hours posted on the fence at Respondent's establishment. On August 31, 1987, Respondent sold a 1979 automobile to Gloria Little. Respondent did not apply for title for Ms. Little. She went to the tag agency herself because there was no one at Respondent's facility to go with her. She was unable to obtain the title transfer and contacted Petitioner's offices. A telephone call by Petitioner's employee resulted in an individual from Respondent's establishment being made available to assist and complete the title transaction on December 16, 1987. The Respondent did not apply for title transfer to a 1975 vehicle sold to Rafael Castillo on August 8, 1987. After being contacted by a Petitioner employee, Respondent applied for the title transfer on December 16, 1987. On December 29, 1987, Respondent sold a 1981 automobile to Kimberely DeNunzio. Title application to the vehicle was made in February, 1988, and issuance of the title to DeNunzio occurred February 24, 1988. The Petitioner's Order of Summary Suspension of Respondent's motor vehicle license was in effect at the time of this sale.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Respondent's license and denying the application for renewal of same. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of July, 1988. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-5616, 88-2528 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS The Petitioner's proposed findings consisted of paragraphs erroneously numbered. Those paragraphs, 25 in number, have been properly numbered and are addressed as follows: 1-3. are included in findings 1-3, respectively. 4-7. are included in findings 12-18. 8-10. are included in finding 21. 11-13. included in finding 22. 14-16. included in finding 23. 17. included in finding 20. 18-19. included in finding 11. included in finding 6. included in finding 7. included in finding 8. 23-24. included in finding 9. 25. included in finding 10. RESPONDENT'S PROPOSED FINDINGS The Respondent's proposed findings were likewise erroneously numbered. Numbering has been corrected and the 36 paragraphs are addressed as follows. 1-3. included. 4-15. rejected, unnecessary to result reached. 16. included in finding 12. 17-18. included in finding 6. 19-27. rejected, unnecessary. 28-29. addressed in finding 5. rejected, on basis of credibility. included in finding 17. 32-36. rejected as unnecessary. COPIES FURNISHED: Michael J. Alderman, Esquire Assistant General Counsel State of Florida, Department of Highway Safety and Motor Vehicles Department of Legal Affairs Neil Kirkman Building Room A-432 Tallahassee, Florida 32399-0504 Seril L. Grossfeld, Esquire 408 South Andrews Avenue Suite 101 Fort Lauderdale, Florida 33301 Charles J. Brantley Director, Division of Motor Vehicles Room B439 Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney, Esquire General Counsel Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on March 19, 1982, and was issued certificate number 99-4437. The Petitioner is an agency of the State of Florida charged with enforcing the standards for law enforcement officer certification contained in Chapter 943, Florida Statutes, and related rules. It has concomitant authority to discipline such law enforcement officers as to their certification status if certain violations of the provisions in that Chapter are established. On October 25, 1980, the Respondent was cited by a law enforcement officer in Hillsborough County, Florida, for speeding. The fine and disposition of the case remained outstanding regarding that citation until September 27, 1984. In 1981 the Respondent moved to Florida from Ohio to accept employment with the Sarasota County Sheriff's Department. Soon after relocating in Florida, the Respondent attempted to obtain a Florida driver's license. A representative of the Department of Highway Safety and Motor Vehicles informed him that he was "under suspension." Some months prior to June 1984, one of the Respondent's supervisors at the Sarasota County Sheriff's Department, Captain Johnson, informed the Respondent that his driving privilege in Florida was under suspension. He was instructed to get the matter "squared away." On June 30, 1984, the Respondent was involved in an automobile accident. The accident was investigated by Trooper Linda Perkins of the Florida Highway Patrol. During the course of the accident investigation, Trooper Perkins asked the Respondent for his driver's license. The Respondent furnished Trooper Perkins a piece of paper which had written on it the letter "F" followed by nine digits. The Respondent represented this number to the Trooper to be his Florida driver's license number. The structure and sequencing of the number was inconsistent with Florida driver's license numbers as well as those issued by the State of Ohio. The Respondent at the time possessed a valid Ohio driver's license. The Respondent, however, had no valid Florida driver's license on the date of the accident and was aware that his privilege to drive was under suspension in Florida on the date of the accident. On September 15, 1984, Sergeant Gerald Poole, Lieutenant Blakely, and Sergeant Kremm, each employed by the Sarasota County Sheriff's Department, met with the Respondent. The Respondent acknowledged that Captain Johnson had earlier notified him that he was aware of the license suspension in Florida and was requested to explain why the suspension had not been corrected, but remained outstanding. The Respondent informed his superiors that an "imposter" had obtained a California driver's license in his name, (after allegedly stealing his wallet), and had impersonated him when ticketed in Hillsborough County in 1980 for speeding. Respondent maintained at this meeting that he had a valid Florida driver's license, which was not the case. The Respondent was confronted with the fact that the "imposter's" ticket contained the address of 58 Brittany Drive, Cincinnati, Ohio. The Respondent denied that that address existed. The Respondent's employment application, which was on file at the Sarasota County Sheriff's Department, contained as the Respondent's prior address, 58 Brittany Drive, Fairfield, Ohio. The Respondent's employment application also listed Pomona, California, as a prior address. The Respondent had spent a short period of time in California shortly prior to his leaving his employment as a police officer in Ohio, at which time he apparently obtained a California driver's license. He elected not to remain in California, however, returned to Ohio and shortly thereafter moved to Sarasota County. In any event, Sergeant Poole obtained a computer check of the registrant of the tag number listed on the "imposter's" 1980 Hillsborough County traffic ticket. The car's license plate was registered in the name of Edward Foy. On September 27, 1984, the Respondent met with Lieutenant Vernie Skeens of the Sarasota County Sheriff's Department. Lieutenant Skeens had been assigned to conduct an "internal affairs" investigation regarding allegations that the Respondent gave false information to his superiors, had driven Department vehicles while unlicensed, and had driven under suspended driving privileges. The Respondent presented Lieutenant Skeens with a valid Florida driver's license which bore an issue date of the same day, September 27, 1984. Lieutenant Skeens questioned the Respondent regarding the unpaid 1980 speeding ticket which had caused his privilege to drive in Florida to become suspended. The Respondent repeated his explanation that an imposter was responsible for using his name in conjunction with the citation and that is why suspension had been entered against his name in the Florida driving records. The Respondent later that day admitted that it was he and not an imposter who received the 1980 ticket in Hillsborough County. When asked if he had lied to his superiors concerning this, the Respondent replied, "I believe I may have. I don't think I was..." The Respondent admitted that he had not obtained a Florida driver's license since moving to Florida until September 27, 1984, the day of his interview with Lieutenant Skeens. He also told Lieutenant Skeens that, at the scene of the June 30, 1984 traffic accident, he gave no driver's license number to Trooper Perkins and had no idea how she came to obtain such a number. The Respondent testified at the formal hearing, however, that he did give Trooper Perkins a driver's license number on the date of the June 30, 1984 accident, at the scene. He testified he believed the number to be that of his Ohio driver's license. Although the Respondent maintained he told Trooper Perkins he did not have a Florida driver's license, her testimony is accepted over his as more credible and worthy of belief. Her testimony establishes that, indeed, he represented the number he gave Trooper Perkins to be that of his Florida driver's license. He never told the Trooper that the number was an Ohio driver's license number or that of any other state. Indeed it has not been established that it was other than a bogus driver's license number and it was not proven that the number was that of his Ohio driver's license. The Respondent's own testimony establishes that the number Trooper Perkins was given does not have the same number of digits as the Ohio driver's license. The Respondent was confronted at the hearing with his prior statement in which he denied ever giving the Trooper any number. He testified "...I can't believe I said that." Trooper Perkins' testimony refutes that of the Respondent to the extent that he contended he told the Trooper he did not have a Florida driver's license. Indeed he never represented that the number he gave the Trooper was anything other than a Florida driver's license number. The Respondent has never before been subjected to disciplinary action regarding his licensure status in Florida or Ohio. He has had an exemplary record as a law enforcement officer, earning numerous awards including that of "Officer of the Year" in Ohio in 1982.
Recommendation Accordingly, the Respondent's certification as a law enforcement officer should be revoked on account of his failure to maintain good moral character as a necessary prerequisite to continued certification. DONE AND ORDERED this 14th day of November, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, 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 14th day of November, 1986. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Post Office Box 1489 Tallahassee, Florida 32302 Edward A. Foy 2910 Wood Street Sarasota, Florida 33577 Robert R. Dempsey Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Janet E. Ferris, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 APPENDIX Paragraphs 1-15: Accepted.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by William F. Quattlebaum, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice of Voluntary Dismissal With Prejudice, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed October 1, 2010 4:40 PM Division of Administrative Hearings. DONE AND ORDERED this / & day of October, 2010, in Tallahassee, Leon County, Florida. Y , CARL A. FORD, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this_/st day of October, 2010. loos y Nalini Vinayak, Dealer ‘Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Dean Bunch, Esquire Nelson, Mullins, Riley & Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Jason T. Allen, Esquire Bass, Sox & Mercer 2822 Remington Green Circle Tallahassee, Florida 32308 William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
The Issue Whether Petitioner properly denied Respondent's application for the renewal of his Commercial Driving School License No. 1719, and Teaching Certificate No. 4531.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, Petitioner's proposed memorandum and the entire record compiled herein, the following relevant facts are found. 2/ Respondent, Joshua Logan, during times material, was the owner/operator of Logan's Streamline Driving School in West Palm Beach, Florida, beginning in 1970. (Tr. 52) Respondent's most recent Commercial Driving School License (No. 1719) and Teaching Certificate (No. 4531) both expired on June 1, 1981. (Tr. 6) On May 18, 1981, Respondent applied to the Department of Highway Safety and Motor Vehicles (herein Department) for renewal of the above referred license and Teaching Certificate. Prior thereto, on or about May 14, 1981, the Department, through its staff, had instructed Respondent that he should contact the Department's agent, J. F. Hayes, at the West Palm Beach Drivers' License office, to arrange for the inspection of his school facilities before his license and certificate could be renewed. On approximately June 1, 1981, Respondent, via a telephone communique with John F. Hayes, District Supervisor, Palm Beach District, Region IV, requested that his renewal applications be held in abeyance pending completion of remodeling of his school building. The Department, pursuant to that communique, held Respondent's renewal applications in abeyance and considered them to be incomplete. Respondent was not told by agents of Petitioner that he could continue to engage in the business of conducting a driving school when his license/certificate expired. The Department issued an order dated August 27, 1981, prohibiting the Respondent from operating as a commercial driving instructor since his school license and teaching certificate both expired on June 1, 1981. On September 29, 1981, Levi Dixon completed an application for a license to conduct a commercial driving school under the name Logan's Streamline Driving School. Attached to that application were receipts, lesson plan forms and other contractual agreements which had been previously utilized by the Respondent. Respondent never renewed his request for an inspection with Supervisor Hayes. Don H. Keirn, Chief, Driver Improvement Bureau for Petitioner, regulates programs related to problem drivers. Chief Keirn has been the bureau chief for driver improvement for approximately twelve (12) years and also is in charge of regulating driving schools. As part of his duties, he inspects vehicles, making certain that they are properly equipped with dual controls, pass safety inspections and bear signs legible to the driving public. Rule 15A- 2.07, Florida Administrative Code. Chief Keirn reviewed the application to change the ownership of the Respondent's driving school during October of 1981. Chief Keirn had received no advance notification from Respondent of any plans (of Respondent) to change the ownership of the school. John F. Hayes, District Supervisor of the Palm Beach District (Region IV) makes periodic checks of commercial driving schools in the Palm Beach district. During the summer of 1981, Respondent advised Supervisor Hayes that, on April 14, 1980, he gave a behind-the-wheel driving lesson to Alzora Washington, in her own vehicle, rather than in a dual-control vehicle approved by the Department, which lesson resulted in Ms. Washington's car crashing through a fence and into a neighbor's home. (Testimony of Respondent, Ms. Washington; Tr. 18, 19, 38 and Petitioner's Exhibit No. 1) Respondent caused to be placed, in a local weekly newspaper, an advertisement offering driving instructions during October and November, 1981. (Petitioner's Composite Exhibit 5) Also, on November 10, 1981, Respondent gave instructions to Geraldine Wilder White in preparation for her to take the written portion of the driver's license exam to obtain a restricted driver's license. Ms. White paid Respondent a $40.00 fee for the driving instruction. (See Petitioner's Exhibit 4; Tr. 20- 24, 40-48 and Composite Exhibit 5) Sometime during the period in which Respondent requested Petitioner to postpone the inspection of his school, Petitioner learned of Respondent's actions as relates to his giving a driving lesson to Ms. Washington on April 14, 1980. Respondent, Joshua A. Logan, is a 56-year-old male who has custody of his three (3) children. Respondent is employed full time as a professional teacher by the Office of Community Mental Health. Respondent has had no prior charges brought against him by the Petitioner. Nor has he been previously charged with violations of any of the Department's rules. 3/ Respondent was therefore of the opinion that by advising Supervisor Hayes of the accident in which he was involved with Ms. Washington, Petitioner would place him on probation for giving a driving lesson in an unapproved vehicle. Respondent executed an answer to a civil suit initiated by counsel for Ms. Washington as a result of the automobile accident referred to hereinabove. Respondent also filed a counter-claim to Ms. Washington's claim and admits to having made several mistakes in both the answer and the counter-claim respecting damages and claims for such damages. 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Department deny Respondent's application for renewal of his school license Number 1719 and Teaching Certificate Number 4531. RECOMMENDED this 25th day of May, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, 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 25th day of May, 1982.
Conclusions This matter came before the Department for entry of a Final Order upon submission of a Recommended Order of Dismissal by Barbara J. Staros, Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Recommended Order of Dismissal as its Final Order in this matter. Accordingly, it is hereby ORDERED that the Dealer Sales and Service Agreement between Premier Automotive on Atlantic LLC and Kia Motors America, Inc. is terminated. Filed May 12, 2011 1:54 PM Division of Administrative Hearings DONE AND ORDERED this VA day of May, 2011, in Tallahassee, Leon County, Florida. Sandra C. Lambert, Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A435, MS 80 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this_42_ day of May, 2011. ti Vinayak, Dealer ek Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCL:vlg Copies furnished: W. Douglas Moody, Jr., Esquire Post Office Box 10336 Tallahassee, Florida 32302 J. Andrew Bertron, Esquire Nelson Mullins Riley & Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Jacob A. Brown, Esquire Akerman Senterfitt 50 North Laura Street Jacksonville, Florida 32202 Colm A. Moran, Esquire Hogan Lovells US LLP 1999 Avenue of the Stars, Suite 1400 Los Angeles, California 99067 Barbara J. Staros Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Section
The Issue The issue for consideration in this case is whether Petitioner should be licensed as an independent motor vehicle dealer in Florida.
Findings Of Fact By stipulation of fact, the parties agreed: Petitioner applied for a motor vehicle dealer's license for a dealership to be operated at 2401 Central Avenue in St. Petersburg, Florida. The application was denied by the Department because it appears the applicant has no experience in the motor vehicle business and, in fact, applied for the license to allow an individual by the name of Lloyd Blocker to operate and have continued involvement in the motor vehicle business. Petitioner was aware at the time of his application that Mr. Blocker had been denied a motor vehicle license in Florida in February 1994 and had been convicted of a felony in Alaska involving the unlawful rolling back of odometers in motor vehicles. In addition, Mr. Rinier was aware that the Department of Motor Vehicles would not allow Mr. Blocker to hold a license to deal in motor vehicles in Florida. Mr. Rinier and Mr. Blocker have an ongoing business dealing with the sale of motor vehicles. Mr. Rinier knows and knew at all times pertinent hereto that Mr. Blocker could not operate such a business on his own. The Department of Motor Vehicles contends that Mr. Blocker cannot operate or be involved in any facet of the motor vehicle business in any capacity. If Mr. Rinier were to provide written assurances that Mr. Blocker would not be involved in any way with a business operated under a license if issued, it would issue a license, assuming Mr. Rinier were otherwise qualified for licensure. Mr. Rinier is unwilling to provide that assurance in writing. However, Petitioner contends his sole desire is to make money from the operation of a dealership. If the license were issued, ownership of the business would be and remain in the Petitioner's name. He had already paid lease costs and all other costs relating to the business, and he will not operate it without Mr. Blocker's participation in some form. The present relationship with Mr. Blocker involves sale of the buildings where the dealership would operate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Highway Safety and Motor Vehicles enter a Final Order denying a motor vehicle dealer license to Petitioner, Harvey G. Rinier. DONE AND ENTERED this 10th day of September, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: John L. Waller, Esquire John L. Waller, P.A. 467 Second Avenue, North _ ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1997. St. Petersburg, Florida 33701 Michael J. Alderman, Esquire Gabrielle L. A. Taylor, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 Tallahassee, Florida 32399-0504 Charles J. Brantley, Director Division of Motor Vehicles Neil Kirkman Building Room B-439 Tallahassee, Florida 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: In late 1990, Robert Sayre filed with Respondent an application for an independent motor vehicle dealer license authorizing him to do business as TNT Auto Sales at 2050 N.W. 36th Street in Miami, Florida. At the time, Sayre leased the location of his proposed business from James Philips. 1/ Sayre no longer holds a leasehold interest in the property. The property is now owned by Teobaldo Cabrera, who is leasing it to Fiory Motors, Inc. Fiory Motors, Inc., has a current license from Respondent to operate as an independent motor vehicle dealer on the property.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order denying Petitioner's application for an independent motor vehicle dealer license on the ground that he neither owns nor leases the property identified in the application as "the exact location of [his proposed] place of business." DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11 day of September, 1992. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11 day of September, 1992.
The Issue This is a case in which the Petitioner seeks a determination that a policy of the Respondent is a rule, and that such policy/rule is invalid because it has not been adopted pursuant to the procedures set forth at Section 120.54, Florida Statutes. The challenged rule was described in the petition as a policy to the effect that . . . a man's middle name can be changed to his wife's maiden name on his driver's license only by court order and not by presenting a copy of his marriage certificate. However, a female may add her husband's name on her driver's license as a surname by presenting a copy of her marriage certificate. . . . At hearing it was clarified that the policy to which the challenge is directed is the policy set forth in the last paragraph of page 7-3 of the Florida Examiner's Manual. At the hearing both parties presented testimony and offered exhibits which were received in evidence. The parties were originally allowed until December 17, 1988, within which to file their proposed final orders. At the request of the parties that deadline was extended until December 22, 1988. Both parties filed proposed final orders containing proposed findings of fact and conclusions of law. All findings proposed by the parties are specifically addressed in the appendix to this final order.
Findings Of Fact Based on the evidence received at the hearing in this case, I make the following findings of fact. Petitioner's birth name, which name he used until the time of his marriage, was Joseph Charles Sexton. On August 8, 1988, Petitioner was married to Beth-Anne (NMN) Thye. Since the marriage, the Petitioner has used the name Joseph Thye Sexton and his wife has used the name Beth-Anne Thye Sexton. The marriage certificate of the Petitioner and his wife does not state what name either of them intends to use after the marriage. Following the marriage, Petitioner's wife was permitted to change her name on her driver license from Beth-Anne Thye to Beth-Anne Thye Sexton, using only her marriage certificate. Following the marriage, Petitioner' attempted to change the name on his driver license from. Joseph Charles Sexton to Joseph Thye Sexton, using only his marriage certificate, but was told by employees of the Respondent that he would need a court order to make such a change. The Respondent has published a manual with the title Florida Examiner's Manual. The manual has been distributed by the Respondent and is used by the Respondent's employees in the fulfillment of their duties related to the issuance of driver licenses. The manual contains the current policies of the Respondent. The portions of the manual quoted hereinafter have not been adopted as rules pursuant to the rulemaking procedures of Section 120.54, Florida Statues. The Florida Examiner's Manual, at page 7-7, under the subheading Applicant With Name Established On Florida Computer Record, reads as follows: Name changes can be proven by the following documentation: Females: *Marriage certificate, *Court order, *Out-of-state license, *Naturalization papers, *Divorce decree (Dissolution of marriage), *Names already established on record, or --May go back to previous last name, such as a maiden name, without Court Order, etc., if name is already on record. *Two forms of identification in the same name as listed on page 7-1. M *Naturalization paper, *Court Order, or *Two forms of identification in the came name as listed on page 7-1. Page 7-3 of the Florida Examiner's Manual, under the subheading Hyphenated Names, includes the 2. Hyphenated first, second, and/or last names can be used. *Maiden-married or married-maiden names of female applicants can be hyphenated at the request of the female applicant without court order. Identification proving maiden and married names must be presented. *Male applicants may not assume the maiden name of their spouses or use a hyphenated combination of the husband's last name and the wife's maiden name unless authorized by Court Order (pursuant to a May 7, 1984 Departmental legal opinion.) The Respondent's rationale for the policies quoted in paragraphs 5 and 6, above, is that it is "customary" for a woman to take her husband's surname upon marriage, but it is not "customary" for a man to take his wife's maiden name upon marriage. Those policies promote administrative convenience, because they are consistent with established custom. It is very important for the Respondent to establish and maintain accurate information as to the identity of its licensees, in order to protect the business community, law enforcement officers, the motoring public and the public at large. To this end the Respondent operates an extensive fraud prevention program. If a male driver changes his name and is issued a new driver license in his new name, the Respondent does not lose track of that driver's prior driver record. Rather, an inquiry under the new name will also access information under the prior name.
The Issue The issue in this case is whether Florida Virtual School's intended decision to award a contract, challenged by All Florida Safety Institute, LLC, is contrary to Florida Virtual School's governing statutes, rules, policies, or the proposal specifications.
Findings Of Fact Florida Virtual was created by statute to develop and deliver online distance learning in the State of Florida. § 1002.37, Fla. Stat. Florida Virtual is governed by a board of trustees appointed by the Governor. § 1002.37(2), Fla. Stat. Florida Virtual issued the RFP on October 14, 2019, seeking responses from qualified proposers interested in providing hands-on, "Behind the 1 On April 20, 2020, Petitioner filed exceptions to the proposed recommended orders submitted by the other parties. These exceptions were filed at DOAH, before the Recommended Order was issued. Exceptions to proposed recommended orders are not authorized by statute or rule and have not been considered. Wheel" driver education courses to Florida Virtual's driver education students. Florida Virtual received proposals from two qualified vendors, All Florida and United Safety Council, the current Behind the Wheel course provider. The RFP established the following scoring criteria: Criteria No. Step 1: Main Criteria Description Weight 1. Compliance 10% 2. Qualifications, Experience of Team Members and References 24% 3. Contractor Methodology 20% 4. Demonstrated Ability to Meet or Exceed Stated Requirements and Responses to Questionnaire 25% 5. Price Proposal 20% 6. Acceptance of Invoice Payments via FLVS Visa Purchasing Card 1% TOTAL 100% The six categories were to be scored using a 1 to 20 scale. The contract was to be awarded to the respondent that received the highest total weighted score. The RFP required that the proposals be scored by the Proposal Evaluation Committee (Committee). Florida Virtual appointed four of its employees to serve on the Committee: Debbie Adams, the instructional leader over Florida Virtual's driver education program; Janet Conway, an accounting manager; Martin Kelly, the senior director of curriculum development; and Kevin Locke, the director of project management. On November 14, 2019, the Committee met at a public meeting to score the proposals. The meeting was audio-recorded. Ms. Conway, Mr. Kelly, and Mr. Locke were physically present at the meeting. Ms. Adams attended the meeting remotely with an audio connection. Karen Stolarenko is Florida Virtual's senior solicitation specialist. Ms. Stolarenko and her supervisor, Nathaniel Askew, facilitated the Committee's deliberation at the public meeting as representatives of Florida Virtual's procurement department. One or more representatives of United Safety Council attended the public meeting and observed the Committee's deliberations. All Florida was aware of the public meeting but did not send a representative to attend. The proposals were provided to the Committee before the meeting for review, but the scoring was done at the public meeting. The evaluators' individual scores were tabulated at the conclusion of the public meeting. Ms. Adams gave All Florida the highest weighted score, but the other three evaluators all gave United Safety Council the highest weighted score. United Safety Council had the higher total weighted score of 72.40, compared to All Florida's total weighted score of 70.48. At the conclusion of the public meeting, the Committee voted unanimously to award the contract to United Safety Council as the respondent receiving the highest total weighted score. PROTEST GROUNDS Class A v. Class E License Requirements for Instructors Section A.2(1) of the RFP includes the following minimum requirement for instructors: Class A license with a refresher every five (5) years or retest required as a result of passing examinations and road test approved by Bureau of Driver Education prior to issuance of certificate. Must possess 3 years of experience with a Class A CDL and no conviction on record within the last five years in order to be qualified. A Class A license is a commercial driver's license that is unrelated to the driver education course sought by the RFP. Although there was no testimony directly on point, Florida Virtual essentially conceded that the RFP's reference to a Class A license was an error. All Florida did not protest the RFP's Class A license requirements after the RFP was issued, to argue those requirements make no sense for the services sought by the RFP. Instead, it committed in its proposal to meet all qualifications for a Class E license, the license sought by students who attend the Behind the Wheel driver education course. While this is a logical response to what appears to be an error in the RFP, it was risky because it did not comply with the letter of the RFP. United Safety Council took the safe route, responding by confirming that its instructors would meet the requirements of section A.2(1). At the public meeting, before the proposals were scored, Ms. Adams (the instruction leader for Florida Virtual's driver education program) told the other evaluators that a Class A license was inapplicable to the course services sought in the RFP. No evidence was presented to prove that any evaluator scored All Florida lower because it committed to meet Class E—as opposed to Class A—license requirements for instructors. Committee's Deliberation at the Public Meeting At the conclusion of the public meeting, the evaluators were allowed to take a break and move around the room while their scores were handed to Ms. Stolarenko to be tabulated. The break was approximately 20 minutes long. This break was not recorded, but was not required to be under any governing statute, rule, policy, or RFP specification. Following this break to tabulate the scores, there was an interruption of the recording of the meeting. When the audio recording resumed, Ms. Stolarenko can be heard stating: This is Karen Stolarenko, November 14th 2019, 3:24 p.m. We are reconvening to go over the scores and rankings for the Behind the Wheel Driver Education RFP. Our network went down, and we did have our prior recording interrupted. So there will be two separate recording sessions for today's meeting. I'll do a quick—since we did have an interruption just do a quick roll call so everybody knows who is in the room. Thereafter, the evaluators can be heard on the audio recording confirming their unanimous recommendation to award the contract to United Safety Council as the highest-ranked respondent, a decision consistent with the tabulation of the evaluators' score sheets and the RFP's award specifications. There is no evidence that the interruption in the audio recording was intentional or in bad faith, or that it violated any governing statute, rule, policy, or specification of the RFP. The meeting was public; there is no evidence that anyone was excluded from this portion of the meeting. All Florida could have sent one or more representatives to attend the meeting but chose not to. Corrections to Evaluator Scoresheets The evaluators were provided individual scoresheets to record their scores. The evaluators who attended the meeting in person—Mr. Locke, Mr. Kelly, and Ms. Conway—were provided paper scoresheets and pens to handwrite their scores. Ms. Adams, who attended the meeting remotely, was provided a digital scoresheet and typed her scores. Mr. Kelly's scoresheet included two scores that were scratched out and rewritten. Under the category labeled "Compliance," Mr. Kelly's final rewritten score for All Florida was 19. Under the same category for United Safety Council, Mr. Kelly's final, rewritten score was 18. Mr. Kelly testified that he scratched out his original scores and replaced them with the rewritten final numbers listed above. He further testified that he could not recall why he scratched out the original scores before turning in his scorecard to Ms. Stolarenko other than that he changed his mind. Mr. Kelly's testimony was credible and is accepted here. Ms. Conway testified that she initially erred in the manner in which she scored the proposals; that is, she assigned scores based upon the total weight instead of using the 1 to 20 scale she should have applied to score the respondents for each of the six categories. For example, the "Compliance" category was weighted 10 percent, and Ms. Conway mistakenly applied a 1 to 10 scale (instead of a 1 to 20 scale) when initially scoring this category. She made the same mistake for both respondents. Ms. Stolarenko brought this error to Ms. Conway's attention when she handed in her scoresheet for tabulation at the public meeting. Ms. Conway testified that she corrected the error in her scoresheets without changing the intent behind her original scoring. Two of the categories required no alteration, because they were weighted 20 percent, and Ms. Conway therefore applied the correct 1 to 20 scale when she originally scored those categories. Ms. Conway's testimony was credible and is accepted here. Ms. Conway did not change the intent behind her original scores when she corrected her scores to apply the correct 1 to 20 scale, and this correction did not disadvantage All Florida or provide a competitive advantage to United Safety Council in any way. In fact, Ms. Conway's correction to her score sheet was required to comply with the RFP's specifications on the evaluation of responses. Evaluator Comment Regarding Tesla Fleet All Florida committed to include new Tesla vehicles in its fleet for the Behind the Wheel student drivers' use. When this commitment was discussed by the Committee, Evaluator Mr. Kelly can be heard on the audio recording making a statement that sounds like "[w]hat a bunch of idiots." All Florida argues that this comment shows bias against it and that it caused the other evaluators to view its proposal through a negative lens. That was not proven here. Mr. Kelly testified that he did not recall making the "idiots" comment, but that it sounds like something he might have said because he recalled thinking it was "silly to give those types of cars, that are quite expensive," to student drivers.2 Mr. Kelly went on to testify that his opinion regarding All Florida's Tesla commitment had no bearing on his scoring. Mr. Kelly's testimony was credible and is accepted. Although Mr. Kelly could have chosen better words to express himself, the use of the term "idiots" in this context does not suggest that he was biased. The other evaluators denied hearing Mr. Kelly's "idiots" comment; there is no evidence that this comment influenced any of the scores the other evaluators assigned to All Florida. Qualification and Experience Scores All Florida contends that the evaluators failed to consider the "real numbers" of teen drivers served by All Florida as compared to those served by United Safety Council when they scored the respondents in the category for "Qualifications, Experience of Team Members and References." All Florida offered no evidence to support this protest ground. The evaluators testified at the final hearing but were not questioned on this issue. United Safety Council failed to prove that the scores assigned by the evaluators for "Qualifications, Experience of Team Members and References" were arbitrary or capricious. United Safety Council's Proposal Irregularities Section B.1 of the RFP, entitled "Respondent Questionnaire," contains 14 questions the respondents were instructed to answer in their proposals. United Safety Council's proposal included answers to questions 1 through 5 but omitted the answers to questions 6 through 14. All Florida's proposal included answers to the entire questionnaire. United Safety Council's omission caught Ms. Stolarenko's attention; at the public meeting, she advised the evaluators that United Safety Council 2 The audio recording of this comment from Mr. Kelly is very faint and difficult to hear. But given Mr. Kelly's testimony that it "sounds like something he might have said," the inference is that he did make the "idiots" comment. failed to answer questions 6 through 14. Most, but not all, of the information answering questions 6 through 14 can be found elsewhere in United Safety Council's proposal. Ms. Stolarenko correctly advised the evaluators that they were to score United Safety Council's proposal based on the information contained in its proposal. The RFP required the respondents to consecutively number all pages of the proposal. United Safety Council did not consecutively number all pages of the proposal. All Florida does not allege that United Safety Council's proposal should have been deemed non-responsive—and thus ineligible for a contract award—due to these proposal irregularities.3 Instead, All Florida alleges that it should have received a higher score because its proposal did not contain the same deficiencies. All Florida failed to prove that the evaluators' scores were arbitrary or capricious because United Safety Council received overall higher weighted scores, notwithstanding these two irregularities in its proposal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Florida Virtual School dismissing the protest of All Florida Safety Institute, LLC. DONE AND ENTERED this 4th day of May, 2020, in Tallahassee, Leon County, Florida. S BRIAN A. NEWMAN 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 4th day of May, 2020. COPIES FURNISHED: David Jeffrey D'Agata, General Counsel Florida Virtual School 2145 Metrocenter Boulevard, Suite 100 Orlando, Florida 32835 (eServed) Samuel P. Garrison, Esquire Bradley, Garrison & Komando, P.A. 1279 Kingsley Avenue Orange Park, Florida 32073-4603 (eServed) Jessica Beecham, Board Clerk Florida Virtual School 2145 Metrocenter Boulevard, Suite 100 Orlando, Florida 32835 Keith A. Graham, Esquire Marchena & Graham, P.A. 976 Lake Baldwin Lane, Suite 101 Orlando, Florida 32814 (eServed) Shannan Collier Stalvey, Esquire The Law Office of Shannan S. Collier, P.C. 100 Galleria Parkway Atlanta, Georgia 30339 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Dr. Barbara M. Jenkins, Superintendent Orange County School Board 445 West Amelia Street Orlando, Florida 32801-0271
