Findings Of Fact The Petitioner, a nonprofit corporation, was licensed by the Respondent to operate as a vocational, technical, or trade school during 1977. The school was designed to teach business machine repair and maintenance skills to students. The Petitioner applied for a renewal of the license with the Respondent for 1978. By letter dated August 14, 1978, the Respondent advised the Petitioner that it would not reissue the license. The Petitioner requested an administrative hearing, and this proceeding ensued. Beginning in January, 1977, the Petitioner was funded by the "CETA Administration" as a service delivery agent. Under this funding, the Petitioner would submit requests for reimbursement based upon its expenditures in providing an educational program to its students, and the Petitioner was funded directly. Petitioner enjoyed this status from January through September, 1977, and received a total of $87,806.07 in direct funding. As of October 1, 1977, the Petitioner's funding status with CETA changed. After that date the Petitioner became what was called a "sub-subgrantee" of the vocational education component of the local CETA Administration. The vocational education component of CETA became the service delivery agent, and was directly funded. The Petitioner thereafter was not able to do its own recruiting of students, and no longer received direct funding from CETA. Rather, CETA would pay to students a stipend adequate to compensate them for tuition, and other costs of the program. On October 1, the Petitioner had eleven students. Despite the Petitioner's efforts to provide the new service delivery agent with the names of persons interested in participating in the Petitioner's program, CETA did not refer new students to the program. The school lost approximately one student per month from October, 1977 through May, 1978. CETA discontinued all funding of the Petitioner on June 7, 1978. Since that date the Petitioner has had no students. The financial statement submitted by the Petitioner to the Respondent in connection with the renewal application revealed that the Petitioner was operating with a net income loss of $524.76; had total assets of minus $203.57; a fund balance of minus $446.96; and total liabilities of more than two hundred dollars. The projected finances for the period October 1, 1978 through September 30, 1979 indicates that the school will lose approximately ten thousand dollars. The Petitioner, in its renewal application, did not reveal that it had had a drastic change in its funding status, and that it had lost all of its students. During the time that it was in operation, only approximately five persons completed the Petitioner's course work. The Petitioner submitted with its renewal application, a copy of its school catalog. The catalog revealed that certain persons remained on the school's board of directors, who in fact had resigned from these positions. This failure is excusable. The catalog that was submitted was the same catalog that had been used the year before. Due to the loss of its CETA funding, the Petitioner could not afford to have new catalogs printed.
The Issue The issue to be resolved in this proceeding concern whether the Petitioner has been retaliated against by the Respondent in violation of Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner, Leigh A. Bain, filed a Complaint with the Commission on May 16, 1997, alleging retaliation under the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes. The matter was investigated by the Commission and on November 24, 1999, the Commission issued a Notice of Determination of "no-cause." On January 3, 2000, the Petitioner mailed and faxed a Petition for Relief from an unlawful employment practice to the Commission. The Petition was served by mail on ECUA on January 3, 2000. ECUA filed an Answer and a Motion to Dismiss on January 24, 2000. Thereafter, on January 31, 2000, the Commission issued a Notice of Dismissal stating that the Petitioner had failed to file a timely petition, pursuant to Rule 60Y-5.008, Florida Administrative Code, and that the Petitioner had taken more than thirty-five days from the date of service of the Notice of Determination to file a petition. The Notice of Dismissal was filed with the Clerk of the Commission on January 31, 2000. On February 28, 2000, the Petitioner filed a Notice of Appeal with the Commission. The Notice stated that it was being filed in accordance with Rule 9.110(d) and Rule 9.130(c), Florida Rules of Appellate Procedure, to appeal the Notice of Dismissal of the Petition. On June 28, 2000, the Commission rescinded its previous dismissal, re-opened the Complaint and transmitted the Petition to the Division of Administrative Hearings. In the rescission order the Commission stated that it had previously dismissed the Complaint because the Petition had not been filed within thirty-five days of service of the Notice of Determination. The Commission then found that the Petition had been timely filed on January 3, 2000, using the date of the post-mark of the Petition and adding three days to the thirty- five day time limit for mailing. The Notice of Appeal had been filed with the Commission but not with the Appellate Court. Moreover, the Commission failed to transmit the record to the Appellate Court. In the Petition for Relief Ms. Bain alleges that she was a victim of sexual discrimination or harassment by her supervisor, Steve Burgess. She reported the alleged discrimination to her personnel director on October 4, 1996. She contends that her supervisor retaliated against her on November 11, 1996, by giving her a poor performance rating. Petitioner began employment with ECUA in January 1987, as Executive Secretary to Chuck Wigley, then Executive Director of ECUA. She worked in that position until 1989 and then began working for Steve Burgess who was then the Manager of Customer Relations. She worked for Mr. Burgess until she was transferred to the Engineering Department in June 1997. She was currently employed as an Office Assistant IV in the ECUA Engineering Department. Steve Burgess is the current ECUA Field Services Administrator. He is in charge of the ECUA division that deals with the public. That division has two departments, the Regional Services Department and the Customer Service department. It has approximately 225 employees. Mr. Burgess reports to Van Van Dever, the current ECUA Executive Director. Mr. Burgess has worked for the Respondent for fourteen years. On October 1, 1992, the Petitioner's job title was changed from "Executive Secretary" to "Administrative Secretary." Her salary remained the same and the grade was changed from X10-6 to C18. This was part of a re-classification effort for ECUA positions and pay grades when the ECUA became part of Escambia County's Civil Service System. The re- classifications of ECUA positions, within the county Civil Service System, was approved by the county's Civil Service Board and the ECUA Board. On October 1, 1996, the Petitioner's job title was changed to "Office Assistant IV." Her salary remained the same as it had been when she was an Administrative Secretary and her grade was changed from C18 to C20. This change was made in accordance with a wage and re-classification study and was approved by the county Civil Service Board. The Petitioner describes her re-classification to Administrative Secretary as bringing her and all department secretaries to the same level so there was no longer a distinction between what she had been and the other secretaries. She viewed this action as a demotion for her or a promotion for the other secretaries, with the result that they were all at the same level after the re-classification. These re- classifications, however, were not demotions for any disciplinary or performance reasons. The re-classifications of Ms. Bain's position in 1992 and 1996 occurred prior to the October 4, 1996, allegation of sexual harassment. The last re-classification to Office Assistant IV was effective on October 1, 1996, three days before the Petitioner decided to submit the October 4, 1996, memorandum concerning the harassment allegation. The Petitioner was upset over the re-classification decisions made as to her. In a May 2, 1996, memorandum to Mr. Burgess, the Petitioner stated in reference to the re-classification of her position to Administrative Secretary: . . . However, all positions previously classified as Secretary, Range 8, were also upgraded to Administrative Secretary, Pay Grade 18, which provided a substantial salary increase for those applicable employees. I was not pleased with the inequity of this situation. Through no fault or control of my own, my position was now considered to be equivalent with one that, for the previous five years, had been two pay grades lower. My qualifications had not changed; neither had those of the other employees, and yet somehow we were all considered to be equally qualified for the same position. When I raised this issue, I was told I had no reason to be upset as I had been placed in the highest level secretarial position that existed in the Civil Service System. . . . Ms. Bain continued to be concerned about the re- classification of her position and requested that it be upgraded to an Administrative Assistant position. She also filed an appeal of her Civil Service position allocation and formally requested that the Civil Service Board upgrade her position to Administrative Assistant. The Petitioner wanted Mr. Burgess, her supervisor, to support the upgrade of her position but he would not do so. She was dissatisfied with Mr. Burgess because he did not support a higher classification for her. She felt that if Mr. Burgess supported the upgrade she would have received it. Mr. Burgess and Ms. Bain discussed her concerns and her request for a position upgrade on April 22, 1996. Mr. Burgess explained to the Petitioner at that time why he could not support the upgrade. On one of her visits to see Mr. Van Dever, the Petitioner advised him that the relationship between her and Mr. Burgess had been tense over the re-classification issue. That matter was an issue all during 1996, between the Petitioner and Mr. Burgess. The Petitioner wrote in her comments on her 1996 evaluation that she believed that she was marked-down in attitude because of her classification appeal. She did not go to the committee that was conducting position audits, however, to speak with the committee about the re-classification of her position, even though this committee was to make recommendations on subjects such as the upgrade of Ms. Bain's position. There was an analogous Office Assistant IV position in the STR Division. Like Mr. Burgess, however, Bernie Dahl, the STR Director, did not support a position upgrade for his own Office Assistant IV either. Ms. Bain went to Mr. Van Dever to complain about three incidents involving Mr. Burgess. The first incident occurred in February 1993. She met with Mr. Van Dever and he seemed supportive. He said that he would speak with Mr. Burgess about the matter. He met with Mr. Burgess and Ms. Bain felt that things seemed to improve. The next incident with Mr. Burgess occurred a year later on January 20, 1994, when Mr. Burgess allegedly became upset when he discovered that a letter had gone out with a handwritten invoice attached to it. When Ms. Bain called Mr. Burgess' attention to the fact that he had signed the letter with the handwritten invoice attached he allegedly became agitated and angry. She went to see Mr. Van Dever about this incident. She felt that things improved once again after Mr. Van Dever met with Mr. Burgess about this incident. In September 1996, a third incident occurred about which Ms. Bain complained to Mr. Van Dever. This incident arose when Mr. Burgess asked Ms. Bain to forward his and her phone lines when they had to be away from their desks to someone other than Quanita Stallworth, who handled the ECUA switchboard. He did this because he was concerned that Ms. Stallworth had too many calls to handle when all the phone lines were transferred to her at lunch and when employees were away from their desks. Ms. Bain was initially told to forward the phones to Linda Sutherland. When she objected to forwarding her phone to Ms. Sutherland, Mr. Burgess told her that she could forward it to Linda Iverson or to someone other than Linda Sutherland " . . . as long as its not going to Quanita " After the Petitioner had been directed not to forward the phones to Quanita Stallworth, Mr. Burgess discovered that she had disregarded his instructions and forwarded her phone to Ms. Stallworth. When he reiterated to the Petitioner that they were not going to forward the phones to Ms. Stallworth, the Petitioner told Mr. Burgess that " . . . then I'm going to go see Van." Mr. Burgess told her to go ahead and see Mr. Van Dever. The result of this incident was that Mr. Van Dever allowed Ms. Bain to continue to forward her phone to Quanita Stallworth. Mr. Burgess and Ms. Bain had a meeting with Mr. Van Dever after the phone forwarding incident. They were both told that they needed to try to work together in a professional way and they agreed that they would do so. There was discussion during that meeting about attempting to locate another position for Ms. Bain but there were no openings at the time. When the Petitioner went to Mr. Van Dever about the incident concerning the phone on September 25, 1996, her Complaint involved that particular incident, the switching of the phones. She did not claim gender-bias discrimination in her conversation with Mr. Van Dever. The Petitioner does not recall mentioning, in any conversation that she had with Mr. Van Dever, that she had filed a sexual harassment complaint against Mr. Burgess. In her conversations with either Mr. Van Dever or Mr. Burgess, the Petitioner did not tell either Mr. Burgess or Mr. Van Dever of filing any sexual harassment complaint against Mr. Burgess. She did not give Mr. Burgess or Mr. Van Dever a copy of her October 4, 1996, memorandum which contained her allegations of sexual harassment against Mr. Burgess. The issue she had taken to Mr. Van Dever in September 1996, was to the effect that she felt Mr. Burgess was a tyrant and that he mistreated employees. When she went to Mr. Van Dever to complain about him she raised a morale problem or a problem among several employees whom Mr. Burgess supervised. The morale issue due to Mr. Burgess was her whole reason for complaining at that time. The morale issue is what the Petitioner wanted Mr. Van Dever to look into and she identified male and female employees for him to talk to in order to confirm her complaint that Mr. Burgess mistreated employees. The Petitioner has at various time, identified several employees she believes have had significant problems with Mr. Burgess, including males, such as Bob Kintz, Gabe Brown, and Glenn Johansen. Mr. Van Dever told the Petitioner that he had talked to everyone of the employees that she had identified and that none of them agreed with her. Nettie Williams, the ECUA customer Service and Collections Manager, has worked for Mr. Burgess, her immediate supervisor, since 1989. Mr. Van Dever questioned Ms. Williams about an alleged morale problem in the customer service area in the fall of 1996. He asked her whether she had had any problems with Mr. Burgess and she told him that she did not and that any issue she and Mr. Burgess had they would be able to sit down and work out. Kathy Gaut, the ECUA Internal Programs Coordinator, directs training and other employee-related programs, internal communications, the newsletter and any kind of employee activities. She has been employed with ECUA for about seven years. It is the nature of her job to be in touch with and interact with a lot of employees. Mr. Van Dever often asked Ms. Gaut about general employee issues because of her contact with ECUA employees. In October 1996 Mr. Van Dever asked Ms. Gaut whether she was aware of any problems that employees might be having with Mr. Burgess. She told Mr. Van Dever that she did not know any problems employees were having with Mr. Burgess and that she was not having any problems with him. Mr. Van Dever asked her how she felt employees regarded Mr. Burgess and if he intimidated people. She responded that some people believed that he was abrupt or even rude at times. She advised that his personality was such that he could be very pleasant and convivial but when he had a problem or a particular situation to address, he could come across as being abrupt because he wanted to get right to the point and get the job done and go on to the next subject. She told Mr. Van Dever that she felt that some people may have a problem with Mr. Burgess being abrupt with them because he was so focused on getting his job done. Ms. Gaut is aware of Mr. Burgess' management style and his manner of dealing with people because she has been around him in numerous director and staff meetings. She has observed his interaction with employees at all levels of the company. Mr. Burgess' management style is to get to the point and not string out conversations about an issue when he is ready to get a problem resolved. Ms. Gaut has observed Mr. Burgess and Ms. Bain interacting approximately 10 to 15 times over a five-year period. Ms. Gaut never witnessed Mr. Burgess treating females unfairly as opposed to males and has never herself experienced gender bias from Mr. Burgess. Ms. Nettie Williams was present when Mr. Burgess directed the Petitioner not to forward her phone to Quanita Stallworth. Ms. Williams has never witnessed what she felt was gender bias on the part of Mr. Burgess and has never been treated differently by Mr. Burgess because she was female. On October 4, 1996, the Petitioner met with ECUA Human Resources Director Grant Holmes and submitted a memorandum dated that day in which she complained about Mr. Burgess' conduct toward her. In that memorandum she recites three incidents which allegedly involved inappropriate behavior by Mr. Burgess: the February 1993 incident, when Mr. Burgess had interrupted an attorney in an interview of the Petitioner to tell her to take care of the mail; the January 1994 incident over the handwritten invoice and the September 24, 1996 incident over the forwarding of the phones. In the October 4, 1996 memorandum, Ms. Bain states that she believed Mr. Burgess' conduct towards her was a form of sexual harassment in that Mr. Burgess allegedly engaged in intimidation of her and tended to view a certain type of behavior by males as acceptable, while the same type of conduct by a female he viewed as unacceptable. The basis for her belief that Mr. Burgess treated males differently from her was an incident involving Gabe Brown. Mr. Burgess had an incident with Gabe Brown when an ECUA board member reported that a male customer service representative had been rude to a customer. The board member told Mr. Burgess that he needed to investigate it right away. Mr. Burgess went to the customer service department and called the only two male customer service representatives out of the office and talked with them in the hallway to find out which one had talked with a customer who had complained to the ECUA board member. Mr. Brown was not the one who had the conversation with the complaining customer. Upset, Mr. Brown later came to Mr. Burgess and complained to him that he was embarrassed because Mr. Burgess had singled him out in front of all the other employees as if he had done something wrong. Mr. Burgess thought about the incident and felt that Mr. Brown was right about his handling of the situation. Mr. Burgess therefore apologized to Mr. Brown. Mr. Burgess has apologized to the Petitioner as well. Once when he called a meeting with the Petitioner and the meeting deteriorated, he apologized to her because he felt he was responsible for the conduct of the meeting as the supervisor. He also apologized after the February 1993 incident when he interrupted the Petitioner and called her out of a meeting with an attorney. On that occasion, Mr. Van Dever instructed him to apologize. However, Mr. Burgess accepted the responsibility for his conduct and was sincere in his apology. Mr. Holmes asked the Petitioner, during the meeting with her on October 4, 1996, whether she was claiming that Mr. Burgess had engaged in unprofessional and sexual conduct toward her and she told Mr. Holmes that Mr. Burgess had not done so. The substance of the claim that the Petitioner made was gender bias, although she called it sexual harassment. In the October 4, 1996 memorandum the Petitioner stated that she could only assume that her Civil Service appeal in May of 1996 had something to do with the way Mr. Burgess treated her. In an October 8, 1996, meeting with Mr. Holmes and Mr. Van Dever, the Petitioner requested that she be removed from Mr. Burgess' supervision. This was also discussed at a later meeting on that same day with Mr. Burgess and Mr. Van Dever. Shortly after the October 8, 1996, meeting, Mr. Holmes discussed with Ms. Bain his efforts in attempting to relocate her in another Office Assistant IV position. Mr. Holmes had asked the other employees in the same classification if they would agree to be moved from their current positions and exchange work assignments and locations with Ms. Bain. All elected not to do so. Mr. Holmes also sent Ms. Bain information on other open positions county- wide. Ms. Bain met with Mr. Holmes and Linda Walen. Mr. Holmes met with Ms. Bain again in January 1997 to discuss the job search for the Petitioner and to tell her that he had been unable to find anything for her. After she filed her retaliation complaint with the Commission, Ms. Bain was transferred to the Engineering Department in the same position. She has the option to apply for position openings throughout the ECUA organization and is not restricted only to promotions within the Engineering Department. ECUA employees, including those in the same position as Ms. Bain, can be promoted to positions anywhere within the ECUA organization. Employees in the Petitioner's position, Office Assistant IV, have gone from the ECUA STR Department to the Purchasing Department and from an Office Assistant IV position to a Purchasing Agent position. Ms. Bain's assignment to the Engineering Department does not preclude her from promotional opportunities that may open up anywhere in the ECUA organization. The Petitioner has had no problems with perceived bias or other difficulties in her employment in the Engineering Department. Mr. Burgess, as Ms. Bain's supervisor, did her performance evaluation in 1996. He gave what he thought was an overall good evaluation. In the ECUA ratings scale a "good" rating is not an "average" rating but is a rating that can be from 70% to 95% out of a possible 100%. For those areas where Mr. Burgess marked her evaluation "good," he felt that Ms. Bain was in that range and that she had indeed done a good job in those areas. Her performance rating in 1996, which she signed on November 12, 1996, was a total weighted score of 3.4 with a "good" rating in the following five categories: "Attitude," "Communication," "Human Relation Skills," "Initiative/ Creativity" and "Safety." The Petitioner received an "Excellent" rating in the areas of "Quality," "Productivity" and "Care of Facilities & Equipment." There were no negative ratings in any category. The 3.4 score was almost half-way between a "good" and an "excellent" overall rating. As shown by Mr. Burgess' rating comments on the 1996 evaluation, depicted in Petitioner's Exhibit 2, he felt that, due to the problems Ms. Bain had with the Civil Service re-classification of her position, she did not go the "extra mile" during 1996. She did her job and did what was asked of her but did not take the initiative to do anything other than what was asked of her. Mr. Burgess felt that the re-classification issue affected her output at work and her overall attitude on the job so that he could not give her a higher evaluation like he had done in 1995 when he rated her as "Excellent." Ms. Bain submitted a memorandum dated November 12, 1996, in response to the 1996 evaluation. Ms. Bain states, in that memorandum, that she and Mr. Burgess were "beyond the point of talking about this (see my memorandum to Grant Holmes dated October 4, 1996) . . .." While the Petitioner references her October 4, 1996 memorandum in the November 12, 1996 memorandum in response to her evaluation, she does not reference sexual harassment or the fact that she had filed a discrimination complaint against Mr. Burgess. Mr. Burgess did not counsel Ms. Bain during 1996 about a deterioration in her attitude because overall he rated her as having a good attitude. He did not feel that her attitude warranted counseling. He felt that Ms. Bain was doing her job and did not feel that she was doing bad things. Further, Ms. Bain was not happy with the re-classification situation and Mr. Burgess did not want to "stir anything up." The 1996 rating did not indicate a significant deterioration in the Petitioner's attitude. Her attitude was not excellent in terms of the rating scale, so Mr. Burgess did not feel that he could give her a 4 rating as he had done in 1995. In the previous year, 1995, Mr. Burgess had given her Superior ratings in four categories because he felt that she had gone out of her way to do extra things and to take on extra tasks. In 1995, he evaluated Ms. Bain, giving her a total weighted score of 4.1 with a "Excellent" rating in all categories except for a "Superior" in a category of "Care of Facilities & Equipment." He made comments on her 1995 evaluation to the effect that Ms. Bain continued to do excellent high-quality work. In 1992, the Petitioner received a total weighted score of 3.6 with a "good" rating in "Attitude," "Communication," and "Human Relation Skills." She received an "Excellent" in "Quality," "Productivity," "Initiative/ Creativity," "Safety," and "Care of Facilities & Equipment." In 1993 she received a total weighted score of 3.7 with good or excellent ratings in all categories. In 1994, Mr. Burgess rated her with a total weighted score of 4.0 with an "Excellent" rating in all categories. In 1997, Bill Johnson, the Director of the Engineering Department, gave Ms. Bain a total weighted score of 3.2, a lower rating than Mr. Burgess had given Ms. Bain in 1996, the evaluation which she alleges is retaliatory. Mr. Johnson gave her a "good" in all categories. There is no evidence that she has had any friction since transferring to the Engineering Department. In 1998 Mr. Johnson gave her again a total weighted score of 3.2 and a "good" rating in all categories except for "Quality" for which she was given a "Superior" rating. In 1999, Mr. Johnson gave her a total weighted score of 3.5 and gave her a "good" in all categories except for "Communications," "Quality," and "Productivity" for which she was given "Superior" ratings. In the year 2000, Mr. Johnson gave her a total weighted score of 3.5 with a "good" in all categories except for "Communication," "Quality" and "Productivity" for which she was again given "Superior" ratings. Mr. Johnson's ratings of Ms. Bain were not adverse actions or discriminatory and such has not been claimed by her. Since 1992, the Petitioner has received a "good" rating in "Attitude" on all evaluations except for the 1994 and 1995 evaluations when she received "Excellent" ratings in that category by Mr. Burgess. Her current supervisor, Bill Johnson, has never rated her higher than "good" in the "Attitude" category. Thus, in the nine-year period, she has received a "good" rating in "Attitude" on seven out of nine ratings. Mr. Burgess was not aware that Ms. Bain had filed a sexual harassment complaint or any kind of discrimination complaint against him at the time he completed the 1996 evaluation. Although he knew that Ms. Bain had gone to Mr. Van Dever concerning his directive to her that she should not forward her phone to Quanita Stallworth at the switchboard, and although he was later told that Mr. Van Dever was investigating whether there was a morale problem in his division, he did not actually know that a sexual harassment complaint had been filed regarding him. He learned of it when the Petitioner filed her retaliation complaint with the Commission and referenced a previous "sexual harassment" complaint that she had filed on October 4, 1996, with the ECUA. Mr. Burgess found that she had submitted the October 4, 1996, memorandum when she made reference to it in a November 12, 1996, memorandum which she wrote in response to the November 11, 1996, performance evaluation. However, he did not learn that she claimed to have filed a sexual harassment complaint against him until the ECUA was notified of her retaliation charge by the Human Relations Commission. Mr. Holmes never told Mr. Burgess that the Petitioner had called her complaint a sexual harassment complaint or gender-based discrimination complaint. Neither Mr. Holmes or Mr. Van Dever told Mr. Burgess about the contents of the October 4, 1996, memorandum. Mr. Burgess did not know until early June 1997 that the Petitioner had alleged that he had sexually harassed her because when he found out about the sexual harassment complaint, he had just been nominated to be president of the local Chapter of the American Cancer Society, in late May 1997. When he received notification that Ms. Bain was claiming sexual harassment, he went to the leaders of the American Cancer Society and offered to resign or have them not name him as president so as not to cause the Society any embarrassment.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations finding that the Petitioner failed to establish that she was the victim of discriminatory retaliation and dismissing the Petition in its entirety. DONE AND ENTERED this 8th day of March, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2001. COPIES FURNISHED: R. John Westberry, Esquire Holt & Westberry 1108-A North 12th Avenue Pensacola, Florida 32501 Rosa Carson, Esquire Carson & Adkins 2958 Wellington Circle, North, Suite 2000 Tallahassee, Florida 32308-6885 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi Coleman, Acting Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether respondent should be required to repay $16,808 in CETA funds allegedly expended for unallowable purposes.
Findings Of Fact From October 1, 1978, to September 30, 1980, the audit period, the County implemented CETA grants of approximately $5,421,000. The Department's Division of Employment and Training, which serves as the state's prime sponsor under CETA, audited the County's records and disallowed certain expenditures. Those which remain in dispute are addressed below. (Testimony of Jessup, Flowers.) Wage and Fringe Benefits Paid to Kathryn Mabery. (CETA Subgrant Nos. 79MP-26-06-45-01 and 80ET-86-45-01-016, Title II-D) The Department contends that wage and fringe benefits, totaling $9,258, paid to participant Kathryn Mabery should be disallowed because she was not unemployed 15 out of the 20 weeks prior to her application, the Title II-D eligibility criteria of 20 CFR 675.5-5. On her August 13, 1979, application, Ms. Mabery indicated that she was last employed by Maryland Fried Chicken on May 13, 1979 2/ On August 15, 1979, the County correctly found her eligible for Title VI funding, which requires that an applicant be unemployed for at least ten out of 12 weeks prior to application. The County enrolled her as a clerical aide, with a starting date of August 20, 1979. But this was a CETA Title II-D position, not a Title VI position. She was thus paid, out of Title II-D funds, wages and fringe benefits totaling $9,258. In effect, on August 20, 1979, the County transferred Kathryn Mabery from the Title VI CETA program, for which she was eligible, to a Title II program, a program for which she was not eligible on August 15, 1979. (Testimony of Jessup, Flowers; P-1.) Wages and Fringe Benefits Paid to Edward Jackson. (CETA Subgrant No. 79MP-3C-06-45-01, Title IV) The Department contends that wages ($789) and fringe benefits ($44) totaling $833 paid to participant Edward Jackson should be disallowed because he was 13 years old at the time of enrollment. Participants in CETA Title IV programs must be between 14 and 21 years old at the time of enrollment. 20 CFR 676.6-10(b). The County, however, did not know he was 13--and thereby ineligible-- because both Edward Jackson and his mother signed eligibility applications which incorrectly stated he was 14 years old. He was subsequently enrolled in the CETA program, employed in the Mount Dora public works department, and paid a total of $833. The Department replies that Edward Jackson subsequently submitted to the County a student work permit (required for minors 12 through 15 years old) indicating his true age to be 13, and that the County failed to detect the discrepancy. Work permits, however, are a state requirement; they are not used to determine CETA eligibility. They were, in fact, issued after eligibility certification. When the County received them, they were routinely filed by clerical workers. The Department showed no duty on the part of the County to examine post-eligibility certification documents to confirm the initial eligibility determination. If the County had been aware of Jackson's true age, it would have immediately terminated him from the CETA program. His enrollment was not the result of a staff error or a failure to follow CETA eligibility procedures. It was attributable to falsification of eligibility certification documents by Edward Jackson and his mother. (Testimony of Jessup, Flowers; R-1.) Wages and Fringe Benefits Paid to Iola Bing. (CETA Subgrant Nos. 80ET-86-06-45-01-016 and 79MP-2U-06-45-01, Title II-D) The Department contends that wages ($5,196) and fringe benefits ($1,485) totaling $6,681 paid to participant Iola Bing should be disallowed because she did not meet the "Economically Disadvantaged" eligibility requirement of 20 CFR 675.5. Under that requirement, an applicant who receives "public assistance" is eligible. The County's intake staff determined that, since Ms. Bing was receiving Food Stamps, she satisfied the "public assistance" requirement. Federal and state CETA officials subsequently determined that Food Stamps were not "public assistance" within the meaning of CETA regulations. The Department seeks to retroactively apply that interpretation here. But the Department has not shown why Food Stamps should not, and cannot reasonably be considered "public assistance within the meaning of 20 CFR 675.5-5 and 676. No federal or state regulation has been cited which explicitly, or implicitly, disqualifies Food Stamps as public assistance." Neither has the Department shown that the County knew, or should have know, that Food Stamps were not "public assistance." Further, it appears that state officials may have advised County CETA workers that Food Stamps were a form of "public assistance." The Department has not shown, or even asserted, that any of the County's alleged errors were fraudulent; that the County, once it became aware of an ineligible participant or questioned activity, failed to take immediate corrective action; or that the County's eligibility determination procedures were inadequate or CETA management systems were not followed.
Recommendation Based on the foregoing, it is RECOMMENDED: That the County be required to repay the Department $9,258. DONE and RECOMMENDED this 23rd day of December, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1982.
The Issue The issues in this case are the amount of attorney’s fees and costs to be awarded to Petitioners pursuant to Section 120.595, Florida Statutes (2007);1 whether Petitioners are entitled to fees and costs pursuant to Subsections 57.105(5), 120.569(2)(e), and 120.595(4), Florida Statutes; and, if so, what amount should be awarded.
Findings Of Fact Each of the 14 Petitioners filed separate rule challenges, challenging the validity of Florida Administrative Code Rule 64B16-26.2031 and challenging eight statements of policy of the Board of Pharmacy, which statements had not been adopted as rules. Prior to the filing of his or her rule challenge, each Petitioner had graduated from a pharmacy school located outside the United States and had taken and passed the Foreign Pharmacy Graduate Equivalency Examination, the Test of Spoken English, and the Test of English as a Foreign Language. Petitioners had been issued Intern Registrations by the Board of Pharmacy. All but two of the Petitioners had submitted an application to be admitted to the professional licensure examination. Those applications had been denied. All Petitioners, including the two Petitioners who had not submitted an application, had applied to the Board of Pharmacy for a variance or waiver to allow them to sit for the professional licensure examination. The Board of Pharmacy denied each Petitioner’s application for a variance or waiver. Each Petitioner had been represented by The Health Law Firm in their applications for a variance or waiver and wanted The Health Law Firm to continue to represent them in the rule challenge. When asked why the Petitioners had contacted The Health Law Firm to represent them, an attorney for The Health Law Firm stated: I think they have a network where word just gets around. And they-–I believe they even had some sort of list serve or Web site where they had all noted that they were being treated unfairly, and so they knew each other. And maybe our name got out on that or something. But they-–they all seemed to know each other-–seemed to know each other. Additionally, The Health Law Firm had sent out letters soliciting the foreign pharmacy graduates to join the rule challenge. An attorney for The Health Law Firm was not sure whether the letter had been posted on the web site for the foreign pharmacy graduates. In several of the invoices submitted by The Health Law Firm, there was a charge of $20.00 for a “[t]elephone conference with client’s colleagues who are in the same situation and interested in filing petitions for waivers and joining the rule challenge.”2 Thus, the circumstances surrounding the representation of Petitioners by The Health Law Firm do not demonstrate that it was a coincidence that Petitioners just happened to pick The Health Law Firm to represent them in the rule challenges. The Health Law Firm decided to file 14 separate petitions instead of one petition with 14 petitioners. The reason for the filing of the separate petitions was to increase the amount of attorney’s fees which could be awarded. Given the inexperience of attorneys at The Health Law Firm with rule challenges and the difficulty in understanding the speech of Petitioners, who received their pharmacy training in countries other than the United States, The Health Law Firm felt that it was not economically feasible to pursue the rule challenge for $15,000.00. Petitioners had a common goal, i.e. to be allowed to sit for the professional licensure examination. The wording of each of the petitions was essentially the same except for the names of the individual Petitioners. Because the issues were the same for all the rule challenges, the rule challenges were consolidated for final hearing. No final hearing was held in the consolidated cases. The parties agreed that, based on the parties’ Joint Pre-hearing Stipulation, there were no disputed issues of material fact and agreed to file proposed final orders addressing each party’s position regarding the application of the law to the stipulated facts. The Board of Pharmacy conceded that Florida Administrative Code Rule 64B16-26.2031 was an invalid exercise of delegated legislative authority, and Petitioners were determined to prevail on the issue of the invalidity of the existing rule. On the challenge to the Board of Pharmacy’s policy statements, four statements were determined to meet the definition of a rule. The Board of Pharmacy conceded in the parties’ pre-hearing stipulation that the instructions in the Foreign Pharmacy Graduate Application for Licensure by Examination, directing applicants not to apply prior to obtaining all the required internship hours, constituted a non-rule policy. On August 1, 2008, in response to its concession that some of the statements or policies at issue were invalid non-rule policies, the Board of Pharmacy had published, in the Florida Administrative Law Weekly, a Notice of Rule Development for Florida Administrative Code Rule 64B16-26.2031. On August 21, 2008, the Board of Pharmacy approved changes to Florida Administrative Code Rule 64B16- 26.2031, eliminating the Foreign Pharmacy Graduate Examination Committee (FPGEC) requirement, incorporating by reference the Foreign Graduate Examination Application, and stating the time frames for the application of Florida Administrative Code Rule 64B16-26.2031. Pursuant to Subsection 120.56(4)(e), Florida Statutes, the portion of the petitions dealing with the statements on which the Board of Pharmacy did not prevail was abated pending the rulemaking process. Petitioners did not prevail on four of the policy statements they challenged. These were the policy statements which the Board of Pharmacy contested. Based on the invoices submitted, the parties attempted to settle the case. Essentially, the Board of Pharmacy had started rule development which eliminated the requirement in the existing rule which caused it to be invalid and which dealt with the unpromulgated rule issues that the Board of Pharmacy had conceded in the Joint Pre-hearing Stipulation. Petitioners wanted to be able to sit for the National Association of Pharmacy Licensure Examination (NAPLEX) and the Multistate Pharmacy Jurisprudence Examination (MPJE). All Petitioners who had a Foreign Pharmacy Graduate Application for Licensure by Examination pending on August 21, 2008, were approved by the Board of Pharmacy to sit for the NAPLEX and the Florida version of the MPJE. Thus, by August 21, 2008, those Petitioners had reached their goal. The impediment to settling the cases was the amount of attorney’s fees that should be awarded to Petitioners. There was no undue delay by the Board of Pharmacy or anything which could be attributed to the Board of Pharmacy as needlessly increasing the cost of litigation. The Board of Pharmacy correctly contended that the amount of fees requested by Petitioners was unreasonable. The Partial Final Order entered in the underlying rule challenges held that Petitioners are entitled to an award of attorney’s fees and costs pursuant to Subsection 120.595(3), Florida Statutes. The Board of Pharmacy was not substantially justified in promulgating the challenged rule in the underlying case and did not demonstrate that special circumstances existed to warrant the promulgation of the challenged rule. The Board of Pharmacy did not demonstrate that the statements which constituted unpromulgated rules are required by the Federal Government to implement or retain a delegated or approved program or to meet a condition to receipt of federal funds. Each Petitioner entered into a contingency fee contract3 with The Health Law Firm to represent him or her in a rule challenge. The parties have agreed that the hourly rate of $350.00 per hour for the services of George F. Indest, III, Esquire, is reasonable and fair under the circumstances. The parties have agreed that some of the hourly rates being claimed for the other attorneys and employees of The Health Law Firm are reasonable and fair under the circumstances. Those fees are $200.00 and $150.00 per hour for the associate attorneys, $80.00 per hour for the paralegals, and $70.00 per hour for the legal assistants. There were a few entries in the invoices made by senior attorneys for whom the rate charged is $300.00 per hour. Based on the rates charged for the senior partner and the associate attorneys, an hourly rate of $300.00 for a senior attorney is reasonable. The names of the attorneys and staff and the respective hourly rate amount for each are listed below. In discussing the reasonableness of the fees claimed in the various invoices, the attorneys and staff will be referred to by their initials as listed in the invoices. Initials Name Hourly Rate GFI George F. Indest, III, Senior Partner $350.00 MLS Michael L. Smith, Senior Attorney $300.00 JK Joanne Kenna, Senior Attorney $300.00 TJJ Teresa J. James, Attorney $200.00 MRG Matthew R. Gross, Attorney $150.00 JP Justin Patrou, Law Clerk $100.00 GJ Gail Joshua, Senior Paralegal $80.00 PD Pamela Dumas, Litigation Clerk $80.00 SF Sandra Faiella, Paralegal $80.00 RS Rebecca Simmons, Paralegal $80.00 AE Alexa Eastwood, Legal Assistant $70.00 SE Shelly Estes, Legal Assistant $70.00 The amount of fees claimed by each Petitioner for representation by The Health Law Firm for the rule challenge is listed below. These amounts are based on the individual invoices and the first consolidated invoice:4 Name Amount Vipul Patel $15,212.36 Miriam Hernandez $15,683.36 Mirley Aleman-Alejo $11,469.36 Valliammai Natarajan $5,074.36 John H. Neamatalla $11,215.36 Samad Mridha $13,650.36 Se Young Yoon $12,292.36 Saurin Modi $10,093.36 Deepakkumar Shah, M.Ph. $11,764.36 Mijeong Chang $12,528.36 Nabil Khalil $10,272.36 Hadya Alameddine $5,313.36 Balaji Lakshminarayanan $4,585.36 Anand Narayanan $4,218.36 Total $143,372.04 Sandra Ambrose testified as an expert witness on behalf of Petitioners. Her opinion is that the amounts claimed are based on a reasonable number of hours expended in the litigation of the rule challenge. However, Ms. Ambrose has never represented a client in a rule challenge. It was Ms. Ambrose’s opinion that the difficulty in the cases was a result of the number of Petitioners not the issues to be litigated. Having reviewed all the invoices submitted in these cases, the undersigned cannot credit Ms. Ambrose’s testimony that the fees are reasonable. The Board of Pharmacy argues that the amount of fees and costs should be limited to the amount expended in the petition brought by the first Petitioner, Vipul Patel. The expert who testified for the Board of Pharmacy did not give a definite amount that he considered to be a reasonable fee in these cases. Prior to the final consolidation of all 14 rule challenges, The Health Law Firm invoiced for its services and costs by individual Petitioner. After all 14 rule challenges were consolidated, The Health Law Firm invoiced for its time and costs via a consolidated invoice. The undersigned has painstakingly reviewed all the invoices that were submitted to support Petitioners’ claims for fees and costs in the rule challenges and finds the fees requested are not reasonable. On May 15, 2008, the invoices for Case Nos. 08-2733RX contained the following entry for MRG. “Review/analyze final order. Strategize regarding final order.” The final order appears to be related to a petition5 for a waiver or variance before the Board of Pharmacy, and the entry is deleted. This conclusion is supported by the entry in the invoice dated May 29, 2008, relating to a telephone conference with the client relating to a re-petition for waiver. In Case No. 08-2730RX, there is an entry on May 27, 2008, for .10 hours for MRG, but no service is listed. That entry is deleted. On June 6, 2008, MRG entered .50 hours each in Case Nos. 08-2728RX, 08-2729RX, 08-2732RX, 08-2733RX, 08-2734RX, 08-2821RX, 08-2823RX, 08-2824RX, and 08-3298RX. The entry stated: “Continue preparing rule challenge and waiver.” The Health Law Firm represented the Petitioners in four of these cases before the Board of Pharmacy on June 10, 2008, on their petitions for a wavier or variance. The invoice does not delineate the amount of time that was spent on the rule challenge and the amount of time that was spent on the waiver cases. Therefore, the time is divided equally and .25 hours in each case is charged toward the rule challenge. 23. On June 9, 2008, in Case Nos. 08-2733RX, 08-2730RX, 08-2731RX, 08-2734RX, 08-2729RX, and 08-2732RX, the senior partner of The Health Law Firm entered .30 hours for each case, which stated: “Prepare letter to Division of Administrative Hearings forwarding Petition for Rule Challenge to be filed.” The letter which accompanied the petitions in these cases stated: Dear Clerk: Attached for filing, please find a separate Petition to Determine the Invalidity of an Existing Agency Rule and the Invalidity of Agency Policy and Statements defined as Rules, for each of the individuals listed below: Miriam L. Hernandez Mirley Aleman-Alejo Se Young Yoon John H. Neamatalla Valliammai Natarajan Md. A. Samad Mridha Thank you for your assistance in this matter. For this letter, Petitioners are claiming 1.8 hours or $630.00. This is not reasonable. On the same date, GFI prepared a similar transmittal letter in Case No. 08-2728RX and listed .3 hours, which is a reasonable amount for the preparation of such a letter. Thus, the preparation of the transmittal letter on June 9th for Case Nos. 08-2733RX, 08-2730RX, 08-2731RX, 08-2734RX, 08-2729RX, and 08-2732RX is reduced to .3 hours, which is prorated to .05 hours for those cases. The senior partner in The Health Law Firm claims 23.6 hours during June 3 through 5, 2008, for the following service which was entered on the invoices for Case Nos. 08-2730RX, 08-2729RX, 08-2731RX, 08-2823RX, 08-3298RX, 08-2821RX, 08-2728RX, 08-2734RX, 08-2733RX, and 08-2824RX. Conduct legal research, review statutes, cases (approximately 28 cases reviewed and analyzed) and two (2) different Florida Administrative Law legal treatises regarding rule challenges and challenging agency statements not adopted as rules, in order to properly prepare Petition for Formal Rule Challenge in case. Research legal issues including administrative agency rules exceeding authority granted in statutes, retroactive applications of agency rules, adding requirements to licensure requirements through administrative rules when those requirements are not contained in the statute. Review Rules of Procedure and Chapter 120 to determine contents of Rule Challenge Petition. Begin reviewing and revising draft for Rule Challenge in case. (Note: Only pro-rata portion of this time charged to each case.) The total amount of fees claimed for this research is $8,260.00. GFI testified that he had never done a rule challenge prior to filing the petitions in the instant cases. His fees for research due to his lack of knowledge of the basics of a rule challenge should not be assessed against the Board of Pharmacy. A reasonable amount of time for his research is four hours. Thus, the amount for this legal research prorated among the ten cases for which it was listed is .4 hours. On July 19, 2008, the senior partner of The Health Law Firm entered .60 hours in ten of the rule challenges for reviewing the Transcripts of the Board of Pharmacy meetings for February 8 and April 5, 2008, and preparing a notice of filing the Transcripts with the Division of Administrative Hearings. Six hours to review the Transcripts and prepare a notice of filing is not reasonable. Three hours is determined to be a reasonable amount of time for this task, and that amount is prorated among the ten cases in which the charge was made. On June 10, 2008, members of The Health Law Firm attended a Board of Pharmacy meeting at which they represented foreign pharmacy graduates who had petitioned the Board of Pharmacy for a waiver or variance. In Case Nos. 08-2821RX, 08-3298RX, and 08-2733RX, the senior partner listed .90 hours for each case for preparation for the June 10th Board of Pharmacy meeting. The preparation related to the petitions for variances or waivers and should not be assessed for the instant cases. For June 10, 2008, JP listed .70 hours each in Case Nos. 08-2823RX, 08-2732RX, 08-2821RX, and 08-2733RX for attendance at the Board of Pharmacy meeting. For June 10, 2008, GFI entered 1.4 hours for attendance at the Board of Pharmacy meeting. The entries for attending the Board of Pharmacy meeting related to the petitions for waivers and should not be assessed in the instant cases. For June 19, 2008, the senior partner made the following entry in the invoices for Case Nos. 08-2728RX, 08-2729RX, 08-2732RX, 08-2733RX, 08-2734RX, 08-2821RX, 08-2823RX, and 08-2824RX: Travel to Boca Raton to meet with other health care lawyers and discuss issues in common on these cases and others. Discuss legal strategies that worked in the past and legal strategies to be avoided. Return from Boca Raton. Each entry was for one hour, for a total of eight hours claimed for a trip to Boca Raton, which equates to $2,880.00. Based on the entry, it seems that the trip included discussions of other cases that The Health Law Firm was handling or that other attorneys were handling. Additionally, there was no rationale for having to travel to Boca Raton to discuss the issues, and fees for such travel should not be awarded. A reasonable amount of time for discussion of the case with other attorneys by telephone would be .80 hours. The prorated amount of time for each case listed is .10 hours. On May 27, 2008, SF made a .30-hour entry in Case No. 08-2824RX for reviewing the agenda of the June 10th Board of Pharmacy meeting as it related to the client in Case No. 08-2824RX. The entry related to the client’s petition for a waiver, which was heard at the June 10th meeting and should be deleted. On May 30, 2008, in Case No. 08-2824RX, SF made a .40-hour entry for drafting a letter to client with retainer agreement. The entry is clerical and should be deleted. On June 18, 2008, an entry was made in the invoice in Case No. 08-2731RX, which stated: “Telephone call from husband of our client indicating that they want us to close this matter and that they do not wish to pursue it any further; follow-up memorandum to Mr. Indest regarding this.” Charges continued to be made to the client through July 16, 2008. Based on the entry to the invoice on June 18, 2008, no further charges should have been made to the client except for the filing of a voluntary dismissal of the rule challenge for the client. However, no voluntary dismissal was filed. Based on the absence of any further charges to the client after July 18, 2008, it is concluded that the client did wish not to proceed with her rule challenge. Any charges by The Health Law Firm after June 18, 2008, in Case No. 08-2731RX will not be assessed against the Board of Pharmacy as it relates to the rule challenge. On June 19, 2008, TJJ made the following .10-hour entry in ten of the cases: “Review June 10, 2008, Board of Pharmacy Agenda. Telephone conference with Court Reporter, Ms. Green, ordering transcript of the June 10, 2008, meeting.” An hour for reviewing an agenda and ordering a transcript is not reasonable. A reasonable amount of time is .40 hours, and such time is prorated to the ten cases in which it is charged. 33. On June 20, 2008, in Case Nos. 08-2823RX and 08-2824RX, TJJ made a .80-hour entry which stated: “Prepare draft motion for consolidation.” No motion was ever filed and would not have been necessary since the parties had agreed at the pre-hearing conference that the rule challenges would be consolidated. The time for this service should be deleted. 34. On July 10, 2008, TJJ made the following .10-hour entry in several of the cases: “Review prehearing instruction orders and amended orders to determine respondent’s deadline to serve discovery responses.” The entry is duplicative of services provided by MRG on July 8, 2008, and should be deleted. 35. On July 15, 2008, in Case Nos. 08-2729RX, 08-2728RX, 08-2730RX, 08-2732RX, 08-2733RX, 08-2734RX, 08-2821RX, 08-2823RX, 08-2824RX, and 08-3298RX, TJJ had .40 hours for a total of 4.00 hours for the following entry: Prepare Petitioners’ Motion to Compel Discovery and assemble and copy documents to be attached to Motion. Prepare facsimile coversheets and transmit the Motion to the attorney for the Board of Pharmacy, Ms. Loucks, and to the clerk for the Division of Administrative Hearings. The copying, preparing facsimile coversheets, and transmitting the motion are clerical tasks. The entries are reduced to .20 hours due to the clerical nature of the tasks, which leaves a total of two hours for preparing a simple motion to compel. The time for the preparation of the motion to compel is not reasonable and is reduced to .10-hour for each entry. On July 22, 2008, the last Order consolidating all the cases was filed. The Order consisted of four paragraphs. On July 29, 2008, TJJ entered .10 hours in Case Nos. 08-2733RX, 08- 2730RX, 08-2734RX, 08-2728RX, 08-2729RX, 08-2732RX, 08-2824RX, 08-3510RX, 08-3488RX, 08-3347RX, 08-2823RX, 08-3298RX, and 08- 2821RX, and each entry stated: “Review order of consolidation filed on July 22, 2008, for common information needed for all cases.” Thus, Petitioners are claiming a total of 1.3 hours or $260.00 to review a four-paragraph Order of Consolidation. This claim is not reasonable. A reasonable amount of time to review the Order was .10 hours, and the time shall be prorated among the cases for which it was claimed at .08 hours each. On July 24, 2008, TJJ made an entry of .10 hours in ten of the cases which stated: Telephone conference with the clerk of the District Court of Appeal, First District to find out the start time of oral arguments on Custom Mobility (rule challenge case). Request information from clerk regarding how to listen to oral arguments online. Observing this oral argument will allow us to better prepare our case for possible appeal. First, a one-hour telephone conversation with the Clerk of District Court of Appeal to ascertain the time for an oral argument and to learn how to listen to oral arguments online is not reasonable. Second, it is not reasonable to charge the Board of Pharmacy with a call to the District Court of Appeal in the instant cases, even if the amount of time for the call had been reasonable. The one-hour charge for $200.00 for a telephone call is deleted. On July 30, 2008, TJJ made an entry of .10 hours in 13 of the rule challenges. The entry stated: “Listen to oral arguments presented before District Court of Appeals, First District, in Custom Mobility case (rule challenge case).” The oral argument was not related to the instant rule challenges and should not be charged to the Board of Pharmacy. The 1.3 hours or $260.00 claim for listening to an oral argument is deleted. On August 4, 2008, TJJ made the following .10-hour entry in 13 of the cases: “Review Joint Motion for Abeyance and Order Canceling Hearing and Placing Cases in Abeyance. Calendar deadlines regarding same.” The time of 1.3 hours for reviewing the simple motion and Order is not reasonable. Calendaring is a clerical task. The time for this service is reduced to .01 hours for each entry. On August 5, 2008, TJJ made the following .10-hour entry in 13 of the cases: “Review Respondent’s Objections and Responses to Petitioners’ Second Set of Interrogatories and Respondent’s Objections to Petitioners’ Second Set of Requests for Admissions.” The objections were that the interrogatories and requests for admissions exceeded 30. The time of 1.3 hours for reviewing the pleadings is not reasonable. The time for this service is reduced to .04 for each entry. Petitioners had scheduled the depositions of Rebecca Poston and Daisy King for July 18, 2008. On July 17, 2008, Petitioners filed notices canceling the depositions. On July 17, 2008, PD entered .10 hours in ten of the rule challenges for the following entry: Telephone conference with Accurate Stenotype Reporters regarding cancellation of depositions of Daisy King and Rebecca Poston on July 18, 2008 and delay transcription of depositions of Erika Lilja and Elizabeth Ranne due to potential settlement. It is not reasonable to charge an hour to cancel depositions with the court reporter. A reasonable amount of time would be .10 hours, which is prorated to the ten cases to which it is charged. PD prepared the notice of the canceling of the deposition of Ms. Poston and the notice of the canceling of the deposition of Ms. King. Entries were made in ten of the cases for time for preparing the notices. The total time for preparing the two notices by PD was 1.45 hours. The time is not reasonable. A reasonable time to prepare two notices of canceling depositions would be .40 hours, which is prorated among the ten cases in which it was charged. One of the issues on which Petitioners did not prevail in the rule challenges was the issue of retroactive application of the rule. There are entries totaling 3.4 hours for JP for preparation of a memorandum dealing with the retroactive application of a rule issue. GFI entered .30 hours for the same issue. The time relating to the retroactive application issue is deleted. On April 19, 2008, MRG entered .20 hours each in several cases, which related to the rule challenge and retroactive application issue. That time is reduced by half. On May 6, 2008, MRG made .60-hour entries in Case Nos. 08-2728RX, 08-2729RX, 08-2730RX, 08-2732RX, 08-2733RX, 08-2734RX, 08-2821RX, 08-2823RX, 08-2824RX, and 08-3298RX, which showed the preparation of three sections of the petition. One of the sections dealt with the retroactive application issue, and the entries are reduced by .20 hours for that issue. The invoices demonstrated that a considerable amount of time was charged for legal assistants and paralegals. Much of this time was for clerical tasks. SE is identified in Petitioners’ exhibits as a legal assistant. The majority of the entries by SE dealt with the photocopying, labeling, organizing, indexing, and filing documents. These services performed by SE are clerical and, as such, cannot be included in an award of attorney’s fees. RS is identified in Petitioners’ exhibits as a paralegal/legal assistant. The majority of the entries in the invoices for RS deal with receiving, reviewing, labeling, indexing, scanning, summarizing, and calendaring pleadings and orders that were received in the cases. These services are clerical and, as such, cannot be included in an award of attorney’s fees. Petitioners in Case Nos. 08-2728RX, 08-2732RX, and 08-2733RX each claimed .30 hours for RS for the following service on April 30, 2008: Received and reviewed letter from Department of Health regarding our Public Records Request dated April 28, 2008 relating to client’s case. Index document for filing and scanning for use of attorneys at hearing. However, .90 hours for reviewing and indexing a letter is not reasonable and is clerical in nature. On June 17, 2008, in Case No. 08-2730RX, RS entered .60 hours for preparing, copying, and sending a letter to the client forwarding a copy of the Order of Assignment. That entry is reduced to .30 hours, since at least half of the time appeared to be for clerical tasks. AE, who is identified as a legal assistant in Petitioners’ exhibits, has numerous entries in the invoices for receiving, indexing, filing, calendaring, and providing pleadings and orders to clients. Those services are clerical and, as such, cannot be included in an award of attorney’s fees. In Case No. 08-2728RX, PD, identified in Petitioners’ exhibits as a paralegal, made entries on June 16 and June 25, 2008, for .30 hours each. These entries were to update the litigation schedule with the hearing date. The entry is clerical and, as such, cannot be included in an award of attorney’s fees. SF, who is identified in Petitioners’ exhibits as a paralegal/legal assistant, made an entry for .30 hours in Case No. 08-2728RX on June 26, 2008, and in Case No. 08-2732RX on June 11, 2008, for forwarding orders to the client. An entry was made on July 10, 2008, in Case No. 08-2728RX and on June 18, 2008, in Case No. 08-2730RX for .30 hours for processing the retainer package. Additionally, SF had entries for organizing and filing transcripts and orders. Such services are clerical and, as such, cannot be included in an award of attorney’s fees. In Case No. 08-3488RX, SF made a .30-hour entry on June 30, 2008, for updating the parties list and document file and a .50-hour entry on June 26, 2008, for completing opening procedures. In the same case, SF made two entries on July 7, 2008, for a total of 1.5 hours for preparing a retainer package and sending it to the client. These tasks are clerical. On June 24, 2008, SF made the following .30-hour entry in 11 of the cases: “Finalize and forward Joint Motion for Continuance of Final Hearing to client in this matter.” These entries are deleted; as they represent clerical tasks and an unreasonable amount of time to finalize a motion for continuance for which GFI had charged 1.1 hours for preparing the motion. In several cases JP, identified as a law clerk, made entries on July 15, 2008, for .30-hour for creating, numbering, and copying exhibits. Such service is clerical. On July 30, 2008, PD made the following .20-hour entry in 13 of the cases: Prepare Petitioners’ Notice of Service of Second Set of Interrogatories and Certificate of Filing and Service. Prepare correspondence to Debra Loucks, attorney for Board of Pharmacy regarding filing and Service of Petitioners’ Fourth Set of Request to Produce and Second Set of Interrogatories. However, 2.6 hours is not a reasonable amount of time to prepare a notice of service of discovery and a transmittal letter to opposing counsel. A reasonable amount of time to prepare such documents is .50 hours, and the time is prorated among the 13 cases. On July 28, 2008, PD made the following .10-hour entry in 13 of the cases: Prepare Notice of Filing Videotaped Depositions of Elizabeth Ranne and Erika Lilja. Prepare draft of Notice of Filing Deposition Transcript of Elizabeth Ranne. However, 1.3 hours is an unreasonable amount of time to prepare two notices of filing depositions. A reasonable amount of time is .40 hours, and that amount is prorated among the 13 cases. On June 17, 2008, PD made the following .20-hour entry in each of the 11 cases: Prepare Petitioners’ Notice of Service of First Set of Interrogatories to Respondent and Certificate of Filing and Service. Prepare correspondence to Debra Loucks, attorney for Board of Pharmacy, regarding filing and service of Petitioners’ First Set of Request to Produce, Petitioners’ First Set of Request for Admissions and Petitioners’ First Set of Interrogatories. However, 2.2 hours is an unreasonable amount of time to prepare a notice of service of discovery and a transmittal letter to opposing counsel. A reasonable amount of time is .50, which is prorated among the 11 cases. 58. On June 21, 2008, in Case Nos. 08-2821RX, 08-2823RX, and 08-2824RX, there is a .30-hour entry for SF for finalizing and forwarding a petition for formal hearing to the Department of Health for filing. This entry does not appear to be related to the rule challenges and is deleted. In Case No. 08-3298RX, MRG made an entry of .50 hours for a telephone conference regarding the date of rule challenge and petition for rehearing. The petition for rehearing dealt with the client’s petition for waiver and should not be included. Thus, the entry is reduced to .25 hours. After all the cases were consolidated The Health Law Firm began to make entries for all cases in the first consolidated invoice. On July 28, 2008, GFI made an entry of 2.8 hours, which related exclusively to the issue of retroactive application of the rule. This entry is deleted. RS made entries in the first consolidated invoice for August 12, 14, 28, and 29, 2008, and September 2, 5, 10, and 18, 2008, relating to filing, indexing, copying, and forwarding documents. There are similar entries for SF on August 26, 2008, and September 4 and 9, 2008, and for AE on September 8, 2008. Those entries are for clerical tasks. PD had entries for reviewing, organizing, and indexing documents on September 4, 8, 11, and 17, 2008, and October 8, 2008. Those entries are for clerical tasks. There were numerous entries in August 2008 relating to a Board of Pharmacy meeting on August 21, 2008, in which the Board of Pharmacy heard motions for reconsideration of orders denying Petitioners’ petitions for waivers. Those entries are related to the petitions for waiver and not to the rule challenges. Although, The Health Law Firm makes reference to a settlement agreement in which the Board of Pharmacy agreed to grant the waivers, there was no settlement agreement of the rule challenges because the parties proceeded to litigate the issues by summary disposition. Thus, the references to attending and preparing for the August 21, 2008, Board of Pharmacy meeting as well as advising the clients of the outcome of the meeting on August 20 and 21, 2008, are deleted. Additionally, an entry by MRG on August 20, 2008, which included reviewing the August 21st agenda is reduced to .75 hours. On August 25, 2008, MRG made an entry which included a telephone conference with Mr. Bui and a telephone conference with Ms. Ranne regarding Mr. Bui. Mr. Bui is not a Petitioner, and the entry is reduced to .55 hours. Based on the invoices, it appears that Mr. Bui and Ms. Ranne were also foreign pharmacy graduates seeking waivers from the Board of Pharmacy. On August 29, 2008, MRG made another entry which included the preparation of an e-mail to Mr. Bui. The entry is reduced to two hours. On August 6, 2008, MRG made a 1.80-hour entry which included preparing e-mail to Mr. Bui and a telephone conference with Mr. Sokkan regarding the rule challenge and settlement negotiations. Neither of these persons is a Petitioner; thus, the entry is reduced to .60 hours. On August 28, 2008, TJJ made a 3.60-hour entry for researching and preparing Petitioners’ second motion to compel discovery. No such motion was filed. Thus, the entry is deleted. Another entry was made on September 2, 2008, which included, among other things, the revision of the motion to compel. That entry is reduced to .80 hours. On August 8, 2008, MRG made a 1.00-hour entry which included a telephone conference with Ms. Alameddine regarding her passing the MPJE and being licensed in Michigan. Those issues relate to the petition for reconsideration of the waiver. The entry is reduced to .50 hours. On September 4, 2008, TJJ made a .80-hour entry for preparing a letter to Mr. Modi regarding his approval to take the examination, a 1.00-hour entry dealing with Mr. Lakshminarary’s application, a .90-hour entry dealing with Petitioner Narayanan’s application, a .70-hour entry dealing with Mr. Shah’s application, and a .60-hour entry dealing with Ms. Hernandez’s application. The entries deal with the petitions for a waiver and are deleted. On September 4, 2008, MRG made an entry which included, among other tasks, time for determining if the Board of Pharmacy had sufficient funds to pay Petitioners’ attorney’s fees. This entry is reduced to two hours. On October 10, 2008, MRG made a 1.20-hour entry which included, among other things, analyzing pleadings to determine if persons who were not Petitioners should file petitions for attorney’s fees. The entry is reduced to .60 hours. On July 16, 2008, MRG and JP made entries in ten of the cases for traveling to Tallahassee and attending the depositions of Elizabeth Ranne and Erika Lilja. The total hours for MRG was 16.9 hours and for JP the total was 17 hours. These total hours are reduced by ten hours each for travel time. On August 12 and 13, 2008, MRG made entries which included travel time to attend Board of Pharmacy meetings.6 Those entries are reduced each by one hour to account for travel time. The following is a listing of the amount of hours and dollar amount for fees, which are considered to be reasonable for the rule challenges. Individual and First Consolidated Invoice Hours Rate Amount GFI 146.10 $350.00 $51,135.00 MLS 3.70 $300.00 $1,110.00 JK 1.40 $300.00 $420.00 TJJ 80.13 $200.00 $16,026.00 MRG 210.16 $150.00 $31,824.00 JP 37.80 $100.00 $3,780.00 PD 39.053 $80.00 $3,124.24 SF 16.80 $80.00 $1,344.00 GJ .40 $80.00 $32.00 RS 1.3 $80.00 $104.00 $108,899.24 The Partial Final Order found that Petitioners were entitled to an award of attorney’s fees pursuant to Subsection 120.595(3), Florida Statutes. Thus, the issue of entitlement to fees and costs pursuant to Subsection 120.595(3), Florida Statutes, was not an issue that was litigated in the instant fee cases. The issue of whether Petitioners were entitled to fees and costs pursuant to Subsections 57.105(5), 120.569(2)(e), and 120.595(4), Florida Statutes, were entitlement issues which were litigated in the instant fee cases.7 Most of the charges dealing with the petitions for fees and costs are related to the amount of fees that are to be awarded and not to the entitlement to fees. In Petitioners’ second consolidated invoice (Petitioners’ Exhibit 4), there is a two-hour entry by MLS on November 3, 2008, for research of entitlement to fees pursuant to Subsection 120.595(3), Florida Statutes. This entry is deleted since the issue of entitlement to fees pursuant to Subsection 120.595(3), Florida Statutes, had already been determined. The following entries in the second consolidated invoice relate to the litigation of the amount of fees to be awarded and are deleted: 11-5-08 GFI 6.90 hours 11-6-08 SF 7.00 hours 11-6-08 GFI 7.40 hours 11-7-08 SF 7.00 hours 11-7-08 MLS 1.00 hour 11-7-08 JCP 7.00 hours 11-8-08 JCP 1.00 hours 11-8-08 GFI 7.10 hours 1-26-09 GFI 1.00 hour 2-9-09 GFI .60 hours 2-10-09 GFI .30 hours 2-12-09 GFI .60 hours 2-17-09 GFI .30 hours 2-17-09 GFI .60 hours 2-19-09 GFI .60 hours The following entries were made in the second consolidated invoice for clerical tasks performed by paralegals and legal assistants: 11-3-08 RAS .30 hours 2-9-09 RAS .30 hours 2-10-09 RAS .30 hours 2-12-09 ACE .40 hours The issue of entitlement to fees pursuant to statutes other than Subsection 120.595(3), Florida Statutes, was a small portion of the litigation relating to attorney’s fees and costs. The major areas of litigation dealt with the amount of fees and costs that should be awarded. The invoices do not specifically set forth the amount of time that was spent on the issue of entitlement to fees on statutes other than Subsection 120.595(3), Florida Statutes. Based on a review of the pleadings in these fee cases and a review of the invoices submitted for litigation of attorney’s fees and costs, it is concluded that ten percent of the time should be allocated to the issue of entitlement to fees. The percentage is applied to the fees after the fees listed in paragraphs 76, 77, and 78, above, have been deleted. Thus, the following entries in the second consolidated invoice are reduced to the following amount of hours: 11-1-08 JCP .26 hours 11-3-08 MLS .10 hours 11-4-08 MLS .40 hours 11-8-08 JCP .32 hours 12-22-08 GFI .04 hours 12-30-08 MLS .03 hours 1-7-09 GFI .02 hours 1-14-09 GFI .04 hours 1-15-09 GFI .07 hours In the third consolidated invoice (Petitioners’ Exhibit 5), the following entries relate to the amount of fees to be awarded and are deleted: 3-4-09 SME 4.80 hours 3-4-09 GFI 1.20 hours 4-3-09 GFI 3.20 hours 4-7-09 GFI .50 hours 4-7-09 GFI .60 hours 4-7-09 GFI .30 hours 4-8-09 GFI 4.20 hours 4-8-09 GFI 1.00 hour 4-9-09 MRG 1.50 hours 4-9-09 GFI 3.20 hours 4-11-09 GFI .60 hours 4-15-09 GFI 4.40 hours On April 14, 2009, GFI made an entry which included time for travel to the expert witness’ office. The entry is reduced by .75 hours for travel time. Ten percent of the time not excluded or reduced above related to the issue of entitlement of fees pursuant to statutes other than Subsection 120.595(3), Florida Statutes. The following entries are reduced to that percentage: 3-31-09 GFI .05 hours 4-1-09 GFI .20 hours 4-6-09 GFI .19 hours 4-6-09 GFI .03 hours 4-7-09 MRG .05 hours 4-7-09 GFI .07 hours 4-7-09 GFI .19 hours 4-7-09 GFI .27 hours 4-9-09 GFI .10 hours 4-13-09 GFI .50 hours 4-14-09 GFI .48 hours 4-14-09 GFI .275 hours The following is a list of the fees in the second and third consolidated invoices which are related to entitlement of fees pursuant to Florida Statutes other than Subsection 120.595(3), Florida Statutes. Second and Third Consolidated Invoice Hours Rate Amount GFI 2.525 $350.00 $883.75 MLS .43 $300.00 $129.00 MRG .05 $150.00 $7.50 JCP .32 $100.00 $32.00 $1,052.25 With the exception of the costs related to the Transcripts of the Board of Pharmacy meetings of April 8 and 9, 2008, and June 10, 2008, Respondent, as stipulated in the parties’ Joint Pre-hearing Stipulation, does not dispute that the amounts of costs set forth in the invoices submitted by Petitioners are fair and reasonable.8 The cost of the Transcripts of the Board of Pharmacy meetings on April 8 and 9, 2008, was $1,476.00. The cost of the Transcript of the Board of Pharmacy meeting on June 10, 2008, was $524.00. At the final hearing, the Board of Pharmacy’s objection appeared to be based on the timing of the payment of the court reporter’s fees related to the transcribing of those meetings. The Transcripts were filed with the Division of Administrative Hearings prior to the issuance of the Partial Final Order. Thus, the costs of the transcribing of the Board of Pharmacy meetings are properly included in the amount of costs to be awarded to Petitioners. The amounts of the costs claimed for the rule challenges in the individual and first consolidated invoice are reasonable. The costs incurred by Petitioners for the rule challenges as set forth in the individual and first consolidated invoices are listed below: Name Amount Vipul Patel $1,773.62 Miriam Hernandez $1,801.41 Mirley Aleman-Alejo $1,213.80 Valliammai Natarajan $321.17[9] John H. Neamatalla $1,118.72 Samad Mridha $975.12 Se Young Yoon $1,097.07 Saurin Modi $1,168.75 Deepakkumar Shah, M.Ph. $1,119.24 Mijeong Chang $1,213.16 Nabil Khalil $961.32 Hadya Alameddine $464.60 Balaji Lakshminarayanan $509.71 Anand Narayanan $461.87 The total amount of costs to be awarded for the challenge to the existing rule and to the policy statements is $14,199.56. The parties stipulated to the reasonableness of the costs contained in the second consolidated invoice. The second consolidated invoice lists the total costs as $2,096.12. Therefore, the costs for the second consolidated invoice are reduced to $209.61,10 which represents the amount attributable to litigation of entitlement of fees, ten percent of the total costs. The parties stipulated to the reasonableness of the costs contained in the third consolidated invoice. The third consolidated invoice lists the total costs as $580.62. Therefore, the costs for the third consolidated invoice are reduced to $58.06,11 which represents the amount attributable to litigating the entitlement of fees, ten percent of the total costs. Petitioners incurred costs in the litigation of the amount of attorney’s fees to be awarded. Petitioners retained an expert witness, Sandra Ambrose, Esquire. Ms. Ambrose’s fee relating to the issue of attorney’s fees is $5,200.00. Her fee is reasonable; however, Ms. Ambrose’s testimony was related to the amount of the fees not to the entitlement to fees and are, therefore, not awarded as part of the costs. The total costs to be awarded for the litigation of the fees is $267.67.
The Issue The issue is whether the Department of Revenue (DOR) acted fraudulently, arbitrarily, illegally or dishonestly in the award of contracts for legal services regarding Child Support Enforcement (CSE) proceedings to R. Craig Hemphill, the Intervenor in this consolidated proceeding.
Findings Of Fact Stipulated Facts The following facts in paragraphs 1-8 were set forth by the parties in a prehearing stipulation. The Solicitation of Proposals was advertised in Duval, Clay and St. Johns counties in a timely manner. Each of the applicants that requested in writing Solicitation of Proposals packages timely received a complete package from DOR containing instructions and documents to be submitted for consideration. The completed proposals were required to be submitted by May 12, 1995, at 3:00 p.m. to: Jean B. Long Richard P. Daniel Building 111 Coastline Drive East Suite 508 Jacksonville, Florida 32202 The proposals were opened on May 12, 1995. A DOR committee, comprised of Clara Cross, Joan Zimmerman, and Richard Humphries, determined that Intervenor would be awarded the contract in all three county areas. DOR issued its Notice of Intent to award the contracts for CSE legal services for the three counties to Intervenor on June 12, 1995. By its terms, the CSE contract is for an annual period to begin July 1, 1995 and extend through June 30, 1996. Petitioner was an unsuccessful applicant for the CSE contract in each of the three county areas. Additional Facts Effective July 1, 1994, DOR became the agency responsible for administering the Child Support Enforcement Program of the State of Florida. On or about April 1, 1995, DOR advertised its intention to award a contract to provide legal services for Child Support Enforcement ("CSE"), in Duval, Clay and St. Johns Counties. Reference to Duval County includes the areas of Duval, Nassau, and Baker counties. On or about April 10, 1995, DOR issued to prospective legal service providers its Solicitation of Proposals for Legal Service Contract for Child Support Enforcement Program (Functional Cost Base), (Solicitation). The Solicitations for Duval, Clay and St. Johns counties were identical with exception of identification of the separate geographical areas to be served under the three respective contracts. The purpose of the Solicitations was to obtain legal services for the three separate geographic areas because the existing contract for these areas with the firm of Schulman, Howard and Hemphill was to expire June 30,1995. The Solicitation documents set forth a description of the CSE program; a statement of need describing the services to be provided; a notification of manner and method for making inquiries of DOR; a schedule of events; and the criteria to be used in evaluating proposals submitted in response to the Solicitation. Each Solicitation informed prospective legal service providers that their proposals would be evaluated according to the criteria contained in Section V, paragraphs A through G, pages 3-7 of the Solicitation documents. Each Solicitation further informed prospective providers that the ". . . proposers with the top three scores will be interviewed by the evaluation committee. Scores will be ranked from the highest to the lowest, and the rankings will be given to the Program Administrator who will award the contract." In the "Statement of Need" section of each Solicitation, DOR advised prospective providers: Through this solicitation for proposals to provide legal services, the Department seeks to obtain the highest possible level of legal representation at the lowest possible cost while insuring free and open competition among prospective proposers. To that end, the Department has departed from the hourly rate billing approach in favor of a fee for service approach in which the attorney will bill for services rendered at a specified rate per activity regardless of the amount of time actually spent. The Department has identified 22 separate functions which are more fully described in Attachment I in this package. The appropriations will place a cap on the amount the Department can pay for each of these functional classifications, and you are cautioned that any amount for which the proposal to perform services is made must not exceed that cap in any functional activity category. Any proposal in excess of any one of these caps will result in automatic rejection of the entire proposal. Each Solicitation contained a list of nine mandatory requirements in Attachment V. Those requirements were not awarded any points in the evaluation process. However, should a proposal fail to satisfy the mandatory requirements, it would be deemed unresponsive and would not be further considered. The Solicitation documents, under the criteria for "Technical Information and Cost," provided a form for the rating of proposals and the award of a maximum of 100 points in the following format: Provide a specific and detailed plan which clearly demonstrates the ability to handle the anticipated volume of cases and perform repetitive work. (0-10) Consideration as to Geographic Area (0-4) Firm Resources (0-15) Computer/Software to Manage High Volume Caseload (0-7) Forms (0-4) Telephone System/Fax/Courier (0-4) Time and Personnel to be Devoted to Child Support Work (0-40) Staffing Ratio (0-10) Attorney Staffing: Points assigned for each Attorney designated to do contract work (0-25) Experience in Child Support Practice (0-10) Family Law Practice (0-5) Enforcement and Collection Practice (0-5) Trial and/or Appellate Experience (0-5) Customer Services and Accessibility to CSE Staff (5) Minority Ownership (0-5) References (0-5) Evaluation of Cost (0-21) Formula X * A = Z _ N A = 21 (Total Possible Points) X = Lowest Proposal N = This Proposal Z = Points awarded * = multiplication The above formula will be used to calculate the total points for each proposal using the total proposed cost in Attachment VI of the solicitation packet. TOTAL POINTS Beside each section or subsection of the foregoing form, a blank space was provided for the rating individual to write the numerical value selected. A maximum of ten additional points could be awarded as the result of personal interviews of offerors. In this regard, each Solicitation provided that ". . . only the top three candidates will be selected for an interview." Under the terms of the Solicitation, prospective legal service providers were required to provide a detailed written plan demonstrating ability to process referrals or case establishment activities. Each Solicitation specifically provided that this ". . . detailed plan must identify existing resources and proposed resources." Id. This section of each Solicitation also required that proposals include resumes ". . . on all firm attorneys who will be assigned to the contract . . . ." Id. There was no requirement in any Solicitation or evaluation criteria that attorneys to be assigned to the contract actually be employed by a prospective legal service provider at the time of the submission of its offer. The portion of the evaluation criteria dealing with "Consideration as to Geographic Area" required an explanation of a prospective provider's ". . . present office location and/or proposed office locations. " There was no requirement that a prospective legal service provider have actually secured a specific office location at the time of submitting an offer. The Solicitation contained an evaluation category entitled "Firm Resources" which was allocated a total of 15 points in the evaluation process. A maximum of 7 points was allocated to the category "Computer/Software to Manage High Volume Caseload" which required prospective providers to include a description of ". . . any automation or special equipment which you will utilize or which you will secure for use under this contract if your proposal is accepted." Nothing in the Solicitation or the evaluation criteria required that a prospective legal service provider actually own any automation or special equipment described in its offer at the time the offer was submitted. The "Firm Resources" category also allocated 4 points for "legal forms," and the Solicitation in this regard provided as follows: Identify legal forms that are presently available to be used to perform child support work. Include family law legal forms or other legal forms that are presently computer generated. If you do not presently have computer generated capabilities, demonstrate your ability to obtain computer generated forms. Finally, the Firm Resources category accorded 4 points for "Telephone System /Fax /Courier" services. Prospective providers were requested to indicate the number of telephone lines available, and whether a prospective provider had the capability to provide fax and courier services for delivery of legal documents. The evaluation criteria provided a maximum of 40 points for "Time and Personnel to be Devoted to Child Support Work." Of this 40 points, a maximum of 10 points was awarded according to staffing ratio of attorneys to paraprofessionals. Twenty-five points was awarded based on the level of attorney experience in child support, family law, enforcement and collection and trial or appellate experience. A maximum of 5 points was also allowed for customer services and accessibility to child support staff. Nothing in the Solicitation or the evaluation criteria required that legal or nonlegal staff actually be employed by a prospective legal service provider at the time his offer was submitted. The evaluation of costs was governed by a specific formula set forth in the Solicitation. However, the Solicitations for Duval, St. Johns and Clay County areas each contained a total reimbursement cap which could not be exceeded by prospective legal services providers without having their proposals deemed nonresponsive. Under the heading "Copyright and Right to Data," the Solicitations provided as follows: Where activities supported by this contract produce writing, sound recordings, pictorial reproductions, drawing or other graphic representation and works of any similar nature, the department has the right to use, duplicate and disclose such materials in whole or in part, in any manner, for any purpose whatsoever and to have others acting on behalf of the department to do so. If the materials so developed are subject to copyright, trademark, or patent, [then] legal title and every right interest claim or demand of any kind in and to any patent trademark or copyright or application for the same will vest in the State of Florida Department of State for the exclusive use and benefit of the state . . . Each prospective legal services provider was required to sign a certification agreeing to "be available for consultation with the department and the current providers, as needed, for at least 30 days prior to the effective date of the contract in order to accomplish a smooth transfer of files and data." Under terms of each Solicitation, all proposals were to be evaluated by a "committee of qualified persons who are familiar with child support services." Further, the Solicitations directed that "[t]he committee will review, analyze and complete a rating sheet for each proposal." Both Petitioner and Intervenor timely submitted offers in response to the Solicitations for Duval, Clay and St. Johns Counties. In addition, the firm of Upchurch & Parsons and John Galleta, Jr. also submitted proposals for St. Johns County. In evaluating offers in response to the Solicitations, DOR developed a set of Evaluation Committee Procedures. These procedures established a protocol which dealt with appointment of evaluation committee members; election of a chairperson; distribution of proposals to evaluation committee members; review for compliance with mandatory requirements; meetings regarding compliance with mandatory requirements; independent evaluation of proposals; recording of evaluation proposals; references; overall scoring of proposals; interviews; points for interviews; and contract award. The Evaluation Committee Procedures, in the category of "overall scoring of proposals," provided that: After all members of the evaluation committee, including the chairperson, have independently completed their evaluations of the proposals, the chairperson will collect all the evaluations, calculate the average score for each proposal, and rank them in order from highest to lowest. Further, the Evaluation Committee Procedures provided, after fully evaluating proposals received in response to the Solicitations, that: [S]cores which result must be ranked from the highest to the lowest and the chairperson (if other than the Program Administrator) must then give the rankings to the Program Administrator who will issue the letter . . . giving notice of the decision to award the contract. The award shall be given to the highest ranked proposer . . . . DOR's Evaluation Committee reviewed, evaluated, scored and ranked the proposals received in response to the Solicitations for Duval as follows: RESPONDENT AVERAGE SCORE Craig Hemphill 103.67 Schulman, Howard 99.0 INDIVIDUAL SCORES TEAM MEMBERS R. CRAIG HEMPHILL SCHULMAN, HOWARD Clara Cross 105 99 Rick Humphries 104 98 Joan Zimmerman 102 100 Averages 103.67 99 DOR's Evaluation Committee reviewed, evaluated, scored and ranked the proposals received in response to the Solicitations for St. Johns County as follows: RESPONDENT AVERAGE SCORE Craig Hemphill 97.67 Schulman, Howard 93 John Galletta, Jr. 59 Upchurch & Parsons, P.A. 84 INDIVIDUAL SCORES TEAM MEMBERS R. CRAIG SCHULMAN JOHN UPCHURCH HEMPHILL HOWARD GALLETTA & PARSON Clara Cross 99 93 61 83 Rick Humphries 98 92 57 82 Joan Zimmerman 96 94 59 87 Averages 97.67 93 59 84 DOR's Evaluation Committee reviewed, evaluated, scored and ranked the proposals received in response to the Solicitations for Clay County as follows: RESPONDENT AVERAGE SCORE Craig Hemphill 99.67 Schulman, Howard 95.0 INDIVIDUAL SCORES TEAM MEMBERS R. CRAIG HEMPHILL SCHULMAN, HOWARD Clara Cross 101 95 Rick Humphries 100 94 Joan Zimmerman 98 96 Averages 99.67 95 By letter dated June 12, 1995, DOR furnished Petitioner and Intervenor with notice of its intent to award the legal services contract for Duval to Intervenor. By letter dated June 12, 1995, DOR furnished notice of its intent to award the legal services contract for St. Johns County to Intervenor. By letter dated June 12, 1995, DOR gave notice of its intent to award the legal services provider contract for Clay County to Intervenor. On or about June 13, 1995, Petitioner filed a civil action against Intervenor alleging breach by Intervenor of alleged common law fiduciary duties owed to Petitioner attendant upon Intervenor's response to the Solicitation. In that action, Petitioner seeks "compensatory damages" and other equitable relief. The law firm of Schulman, Howard and Hemphill, P.A. was formed in 1987. Since October 1, 1987, the firm has provided legal services for child support enforcement for Clay, St. Johns, Nassau, Baker and Duval Counties. The firm is currently providing services for this geographic area under contracts scheduled to expire June 30, 1995 but which, as a result of Petitioner's protest of the award to Intervenor, have been extended through August 31, 1995. Since 1987, the principals in the Petitioner law firm were Warren Schulman, Joseph W. Howard, and R. Craig Hemphill. In March, 1995, Warren Schulman became seriously ill with a brain tumor requiring surgery. Schulman's last day of work was March 29 1995, and he continues to be unable to work. As a result of Schulman's illness, serious doubts arose between Howard and Hemphill as to whether the firm would continue. Negotiations between Howard and Hemphill as to whether the firm would continue commenced in April and culminated in a letter of May 5, 1995 from Hemphill to counsel for Petitioner indicating Hemphill's intention to terminate his association with Petitioner on May 9, 1995. As early as April 14, 1995, Howard was aware that Hemphill might submit his own independent offer in response to the Solicitation. Consequently, Howard began preparation of an offer on behalf of Petitioner, and Hemphill began preparation of his own independent offer. On May 12, 1995, Howard submitted an offer in response to the Solicitations on behalf of Petitioner, and Intervenor submitted his independent offer in his own name. Prior to submission of the offers on May 12, 1995, Howard, on April 22, 1995, and again on May 10, 1995, submitted copies of Petitioner's draft offers to Hemphill. These drafts were voluntarily furnished to Hemphill by Howard, and were furnished notwithstanding Howard's perception that Hemphill would likely submit a separate proposal independent of Petitioner. Both draft proposals were incomplete, and only the draft of May 10, 1995, contained a copy of Petitioner's cost proposal. Both Petitioner and Hemphill bid the maximum allowable cost under the Solicitations, and Howard concedes that Hemphill obtained no competitive advantage as the result of having been furnished a copy of Petitioner's cost proposal prior to the offer submission date of May 12, 1995. Further, as evidenced by dissimilarities in the remaining portions of their offers and the virtually identical similarity of Petitioner's offers to the offers it submitted in 1992 (now a matter of public record subject to access by any prospective legal service provider), Hemphill did not obtain any competitive advantage by his receipt from Howard of copies of Petitioner's draft proposals prior to May 12, 1995. This finding is buttressed by Howard's concession that the low-cost portions of Intervenor's offer were "much more detailed" than those of Petitioner because Intervenor "had more knowledge about those areas, and there was a lack of information on my drafts." In his offers, Hemphill indicated that his office location would be 337-C East Bay Street, Jacksonville, Florida, or an "alternative location . . . across the street from the Duval County Courthouse in the event a new location becomes necessary." There was office space available for lease at 337 East Bay Street, Jacksonville, Florida, on May 12, 1995. As established at the time of final hearing in this cause, which by definition precedes the 30 day transition period provided for in the Solicitations, Intervenor had secured office space at 10 South Newnan Street, Jacksonville, Florida; a location which Petitioner concedes would serve as well to service the contracts as the location at 337-C East Bay Street. In his offer, Intervenor listed a variety of computer generated legal forms which he proposed to utilize in servicing the contracts. Petitioner concedes that all computer generated legal forms identified in Intervenor's offer are the property of the State of Florida and could have been obtained by Intervenor from public records. In response to the Solicitation request that offerors identify any automated or special equipment which would be utilized or which would be secured for use under the contract, Intervenor described a system which he had utilized over a number of years. As noted previously in these findings of fact, potential service providers were not required to own any computer or other special equipment at the time of the submission of an offer. Further, as conceded by Petitioner, Intervenor could easily purchase on the open market the equivalent of the computer equipment described in Intervenor's offer. In his offers, Intervenor listed the names of several paraprofessional and nonlegal staff and five attorneys whom he proposed to utilize in servicing the contracts. Specifically, this portion of Intervenor's offer provided that: Proposed staffing is based upon receiving contracts to perform child support enforcement legal services for the Department of Revenue in a five county area . . . In the event that fewer than all five counties are granted, fewer attorneys will be assigned to the contract, but the staff will essentially be the same, with fewer hours assigned to performing the contract. Although several of the nonlegal staff, and two attorneys listed in Intervenor's offer are currently employed by Petitioner, Petitioner has never had employment contracts with any of its legal or nonlegal personnel. As a result, there is no contractual bar to their employment by Intervenor. Two attorneys employed by Petitioner and listed by Intervenor in his offer, have indicated a willingness to work for Intervenor should he be awarded the contracts. Without consideration of these two attorneys, from the standpoint of scoring under the evaluation criteria, Intervenor still received the maximum number of points allowable for attorney experience. There was no evidence presented as to nonavailability of any of the legal and nonlegal staff identified in Intervenor's offers in the event of contract award to Intervenor. Intervenor's offer responded in all material respects to the Solicitation and DOR's proposed award of the contracts to Intervenor has not been shown to be inappropriate. Petitioner concedes, through deposition testimony of Howard, that it is unaware of any conduct by any member of the Department's Evaluation Committee in reviewing, evaluating, scoring and ranking the responses to the Solicitations that would constitute fraud, dishonesty or illegality.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that DOR enter a Final Order dismissing Petitioner's Formal Notice of Protest and awarding the CSE Legal Service Contracts for St. Johns County, Clay County and Duval/Nassau and Baker Counties to R. Craig Hemphill. DONE AND ENTERED this 11th day of September, 1995, in Tallahassee, Leon County, Florida. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made with regard to purposed findings of fact submitted by the parties. Petitioner's Proposed Findings: 1.-10. Accepted. 11.-12. Rejected, subordinate to HO findings. 13.-17. Rejected, relevance. Accepted as to first two sentences, remainder rejected as not relevant and speculative. Rejected, not supported by weight of the evidence, relevance and hearsay. Rejected, subordinate to HO findings. Rejected, relevance. Rejected, subordinate. Rejected, argument, relevance. Rejected, legal conclusion. Rejected, argumentative, legal conclusion. Respondent's Proposed Findings: 1.-11. Adopted, not verbatim. Rejected, subordinate to HO findings. Rejected, relevance. 14.-25. Accepted. Intervenor's Proposed Findings: 1.-46. Accepted, though not necessarily verbatim. COPIES FURNISHED: William G. Cooper, Esquire 6900 Southpoint Drive, North Suite 500 Jacksonville, FL 32216 Patrick Loebig, Esquire Brian McGrail, Esquire Gene Sellers, Esquire Office of the General Counsel Department of Revenue 204 Carlton Building 501 South Calhoun Street Tallahassee, FL 32301 William E. Williams Huey, Guilday, & Tucker, P.A. 106 East College Avenue, Suite 900 Tallahassee, FL 32301 H. Michael Madsen, Esquire Messer, Vickers, et al. 215 S. Monroe Street, Suite 701 Tallahassee, Florida 32302 Kenneth C. Pollock, Esquire 1401 Peachtree Street, Suite 500 Atlanta, GA 30309 Linda Lettera, Esquire Department of Revenue 204 Carlton Building 501 South Calhoun Street Tallahassee, FL 32399-0100 Larry Fuchs, Exec. Dir. Department of Revenue 104 Carlton Building 501 South Calhoun Street Tallahassee, FL 32399-0100
Findings Of Fact The Division of Employment and Training has alleged that the Putnam County Board of County Commissioners, in administering grants under the Comprehensive Employment and Training Act (CETA), failed to comply with the applicable rules and regulations. As a result thereof, a total of $20,653.00 was spent in violation of applicable rules and regulations. The Putnam County Board of County Commissioners acknowledged that the money was spent as alleged. However, the County contends that the spending was not in violation of CETA, were legitimate costs and should, therefore, be allowed. The findings of fact of the Hearing Officer as set out in the Recommended Order are hereby accepted and adopted.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent repay Petitioner: (1) $3,124 for wages paid to Charles Livingston, (2) $196 in excess workman's compensation charges, and (3) those costs associated with participants later found to be ineligible by reason of not being unemployed 15 of the 20 weeks prior to the date of their applications and whose ineligibility was based upon employment in Putnam County prior to their applications being filed. All other questioned costs should be allowed. DONE and ENTERED this 16th day of April, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 16th day of April, 1982. COPIES FURNISHED: Sonja P. Mathews, Esquire Suite 117-Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Sam S. Browning, III Box 758 Palatka, Florida 32077 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Whether the certificate of Respondent to practice public accounting in Florida should be revoked, annulled, withdrawn or suspended as indicated in the administrative complaint.
Findings Of Fact The parties stipulated to certain facts, as follow: That the Certificate Holder received an undergraduate degree in accounting from the University of Cincinnati in August of 1968. That the Certificate Holder was employed by major CPA firms from August of 1968 to September of 1970 as an accountant. That the Certificate Holder passed the uniform CPA exam in California in 1969, and was granted a CPA license by California upon completion of the necessary experience requirements in May of 1971. That the Certificate Holder attended law school at the Ohio State University from September 1970 through December 1972. In December 1972 he was awarded a Juris Doctor Degree from that institution. That prior to graduating from law school, the Certificate Holder made application to secure a position in accounting. He secured a position with the certified public accounting firm of Arthur Young and Co. in Cincinnati, Ohio, which position commenced on January 1, 1973. That while employed as a certified public accountant by Arthur Young and Co., the Certificate Holder, in the summer of 1973, was offered a position with a certified public accounting firm in Miami, Florida. That in July 1973 the Certificate Holder accepted that position with McClain and Co., CPA's of Miami, Florida, which position was to begin in August 1973. That during the summer of 1973, the Certificate Holder requested the Florida State Board of Accountancy to forward him an application to apply for a reciprocal CPA certificate and the Board responded that an application would not be sent to anyone who was not a resident of the State of Florida. That during the summer of 1973, the Certificate Holder made an application with the Florida Bar to become a member of the Florida Bar. That the Certificate Holder moved his family from Cincinnati, Ohio, to Fort Lauderdale, Florida, in July 1973 and began working on a full-time basis for the Florida CPA firm of McClain and Co. in August of 1973. At that time he again requested an application for a reciprocal CPA certificate; said application being received by the Certificate Holder in late September of 1973. That the Certificate Holder completed the application for a reciprocal CPA certificate and submitted the same to the Florida State Board of Accountancy in October 1973. That in November 1973 the Certificate Holder took the Florida Bar examination in Tampa, Florida. That the Certificate Holder was admitted to the Florida Bar in December 1973 and was granted a reciprocal CPA certificate by the Florida State Board of Accountancy in January 1974. That the Certificate Holder was discharged by the Florida certified public accounting firm of McClain and Co. in may 1974. That the Certificate Holder taught part-time in the Accounting Department of Florida International University beginning in January 1974 thru 1976. After his discharge from the public accounting firm of McClain and Co., he continued at Florida International University on a substantially full-time basis thru the summer of 1974 and into the fall of 1974. That in August 1974 the Certificate Holder opened an office for the practice of law in Fort Lauderdale, Florida, but this office was staffed only on a part-time basis as the Certificate Holder was devoting the great bulk of his time to his teaching activities at Florida International University in Miami, Florida. That in February, 1975, the Certificate Holder opened an office for the practice of law in Fort Lauderdale, Florida, (200 SE 6th Street, Suite 100- B), which office was from that time staffed on a full-time basis by the Certificate Holder. That since February 1975 the Certificate Holder has been actively engaged in the full-time practice of law in the city of Fort Lauderdale, Florida; and That the Certificate Holder has been a resident of and domiciled in the State of Florida from August 1973 thru and including the date of the Stipulation." (Exhibit 1). The parties stipulated at the hearing that the respondent joined the Florida Institute of Certified Practicing Accountants on Jun 17, 1974, as an active member, and changed his status to that of a non-practicing member of the institute on August 22, 1975. Respondent testified at the hearing that his purpose in attending law school in 1970 and eventually obtaining a law degree was predicated upon his desire to advance more rapidly in the tax department of an accounting firm. He had noted that most of the accountants doing tax work in accounting firms generally held law degrees and received higher salaries. Since he was interested in taxation, he did not obtain a master's degree in accounting which involves primarily audit work or preparation of financial statements. Respondent did tax work for an accounting firm in Cincinnati, Ohio, after graduation from law school in 1972 and secured a similar position with an accounting firm in Florida, McClain and Company, in the summer of 1973. He applied for admission to the Florida Bar the same summer because he believed his failure to do so might cause an adverse reaction by prospective employers in the accounting field. Prior to the Florida move, respondent did not seek employment with a law firm because he felt that the opportunities were much better in public accounting and he enjoyed that type of work. After passing the Florida Bar examination in October 1973, respondent did not seek employment in a law firm because he was well satisfied with his accounting position. After he was involuntarily discharged from his job with McClain and Company in May 1974, he sought employment with both accountant firms and law firms in the tax area. Although he began a graduate law program in taxation in January 1974, his purpose was to acquire greater knowledge and ability concerning tax matters for his work in accounting. Respondent testified that at the time he had applied for the Florida reciprocal license as a certified public accountant, he intended to practice public accounting in the State of Florida on a full-time year-round basis. He conceded that he has not been engaged in the full-time practice of accountancy since his termination with the accounting firm in the spring of 1974. (Testimony of Respondent, Exhibits 2, 3). On December 30, 1975, respondent advised the petitioner by means of a "CPA information card" that he was not engaged in the practice of public accounting. By letter of June 21, 1976, petitioner requested respondent to return his certificate along with a stipulation and waiver of hearing. The practice of petitioner in such cases is to request that a registrant waive his right to a hearing on the question of whether or not his certificate should be revoked on the ground that he is not engaged in the full-time year-round practice of public accounting in Florida. In the event the registrant does not agree to waive such a hearing, petitioner normally proceeds to file an administrative complaint seeking revocation of the certificate. (Testimony of Respondent, Composite Exhibit 4).
Recommendation That petitioner's administrative complaint against respondent Thomas F. Luken be dismissed. DONE AND ENTERED this 16th day of November 1977 in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November 1977. COPIES FURNISHED: James S. Quincey, Esquire Post Office Box 1090 Gainesville, Florida 32602 David Hoines, Esquire First National Bank Building Fort Lauderdale, Florida 33394
The Issue Pursuant to Section 120.57(3)(f), Florida Statutes (2009), the issue is whether Respondent Agency for Health Care Administration (AHCA) properly determined that Petitioner Maximus Health Services, Inc.'s (Maximus) reply to Invitation to Negotiate 0904 (ITN 0904) was non-responsive for failure to meet mandatory criteria.
Findings Of Fact Beginning in 2006, the Florida Legislature required the AHCA to implement Medicaid Reform. Medicaid Reform was intended to empower consumers to take an active role in their health care decisions. To serve that purpose, the Legislature required the AHCA to contract with a choice counseling/enrollment broker to provide Medicaid services in Broward, Duval, Nassau, Clay, and Baker counties. ITN 0904 sought to procure an enrollment broker for a three-year contract. It was released on March 9, 2009. The resulting contract is worth in excess of $30 million dollars from June 1, 2009, through June 30, 2011. ITN 0904 consisted of a series of attachments, including the following in relevant part: (a) Attachment C contained “Special Conditions"; (b) Attachment E provided “Evaluation Criteria”; and (c) Attachment G set forth "Required Certifications." The mandatory requirements of ITN 0904 were announced at Section C.7 of ITN 0904 as follows: C.7 Mandatory Requirements: The State has established certain requirements with respect to responses submitted to competitive solicitations. The use of "shall", "must", or "will" (except to indicate futurity) in this solicitation, indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with the solicitation requirement, provides an advantage to one respondent over another, or has a potentially significant affect of the quality of the response or on the cost to the state. Material deviations cannot be waived. The words "should" or "may" in this solicitation, indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such desirable feature (sic) will not in itself cause rejection of a response. Section C.13 set forth the required certifications as follows in pertinent part: Required Certifications: The following certifications, contained in Attachment G, are required and must be submitted with the response: * * * Certification Regarding Terminated Contracts - certifying the vendor (including its subsidiaries and affiliates) has not unilaterally and willfully terminated any previous state or federal contracts for cause within the past five (5) years. FAILURE TO SUBMIT ATTACHMENT G, REQUIRED CERTIFICATIONS, SIGNED BY AN AUTHORIZED OFFICIAL WITHOUT EXCEPTIONS OR CAVEATS, WILL RESULT IN THE REJECTION OF A PROSPECTIVE VENDOR'S RESPONSE. Section C.14 described the proposal guarantee as follows in relevant part: Proposal Guarantee: The original technical response must be accompanied by a proposal guarantee payable to the State of Florida in the amount of $260,000. The respondent must be the guarantor. Section C.38 contains general instructions for response preparation and submission as follows in pertinent part: The solicitation response shall consist of the following parts: A. Transmittal Letter This letter is mandatory . . . . The following documentation shall also be included with the transmittal letter: Proposal Guarantee, as required in Section C.14. Signed Attachment G, Required Certifications, as required in Section C.13. Signed Attachment L, Attestation of No Conflict, attesting that the vendor has no conflict of interest as described in Section C.31. FAILURE TO SUBMIT THE MANDATORY TRANSMITAL LETTER, INCLUDING ITEMS 1-3 ABOVE, WILL RESULT IN REJECTION OF THE PROPOSAL. In Attachment E of ITN 0904, AHCA set forth the evaluation criteria it would use to assess the merits of responses. In Section E.1, the Agency announced that it would review mandatory criteria as follows: E.1 Review of Mandatory Criteria The Procurement Office will evaluate responses to this solicitation against the mandatory criteria found in Part I, Mandatory Criteria. Responses failing to comply with all mandatory criteria will not be considered for further evaluation. Part I is entitled Technical Response Mandatory Criteria. It is a checklist of some of the mandatory requirements of ITN 0904 and states as follows in relevant part: This evaluation sheet will be used by the Agency for Health Care Administration to designate proposals as "responsive" or "non- responsive". If the answer to any of the questions in the table below falls in to the "No" column, the proposal will be designated as "non-responsive" and will not be considered for further evaluation. QUESTIONS YES NO A. Does the response include a transmittal letter, signed by an individual having authority to bind the vendor, containing the following information, as outlined in Section C.38.A? The proposal guarantee, as specified in Section C.15 (sic)of this solicitation; ? A signed Attachment G, Required Certifications, as specified in Section C.13 of this solicitation; ? Attachment G is a form for all required certifications, including but not limited to the following: Certification Regarding Terminated Contracts I hereby certify that my company (including its subsidiaries and affiliates) has not unilaterally or willfully terminated any previous contract prior to the end of the contract with a state or the federal government and has not had a contract terminated by a state or the federal government for cause, prior to the end of the contract, within the past five years. Signature of Authorized Official Date On July 30, 2008, after receiving questions from interested vendors, AHCA issued an Addendum No. 1 to ITN 0904. The purpose of the addendum was to provide clarification and additional information, to make changes to certain attachments, and provide AHCA's response to questions received from prospective vendors. The addendum included the following statement: To the extent this Addendum gives rise to a protest, failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes. The following pertinent questions and answers were included in Addendum No. 1: Question 1: Pursuant to Attachment A.9 and Attachment C.13, please clarify whether the certification relates to the vendor terminated a contract or the government agency terminated a contract, or two different certifications. Answer: Please see Attachment G, Required Certifications, as referenced in Attachment C.13. This certification relates to the vendor (including its subsidiaries and affiliates) unilaterally or willfully terminating any previous contract prior to the end of the contract with a state or the federal government, and to the vendor having a contract terminated by a state or the federal government for cause prior to the end of the contract, within the past five years. * * * Question 8: Attachment C.13 - Please clarify whether the bidder will be disqualified if there is even one instance where a government contract was terminated for cause in the past 3 years. Answer: Respondents must submit a signed certification (Attachment G) in order to be considered responsive. Maximus admits that it asked Question 8 and received the answer set forth above. Maximus did not challenge any of the specifications in ITN 0904 after issuance of Addendum No. 1. Bruce Caswell, the President and Chief Executive Officer of Maximus, signed the required certifications on Attachment G on August 24, 2009. On the following page, Mr. Caswell included information about a terminated contract involving its parent company, Maximus, Inc., as set forth below. AHS, Maximus, and Policy Studies, Inc. (PSI) submitted replies to ITN 0904 on or about August 24, 2009. AHCA opened the replies that same day and forwarded them to AHCA's Procurement Officer, Barbara Vaughan. Ms. Vaughan had the responsibility to determine compliance with ITN 0904's "Technical Response Mandatory Criteria," using the checklist set forth above. Ms. Vaughan has been AHCA's Procurement Administrator since April 2009. She does not have knowledge and experience in all the technical areas for which AHCA may procure services. During the hearing, Ms. Vaughan did not know what an enrollment broker service is. She did not read the technical responses to ITN 0904. She only examined whether the responses included the mandatory items on the checklist. Sometime in September 2009, Ms. Vaughan determined that Maximus had submitted a non-responsive proposal because it included information regarding a contract that the State of Connecticut terminated with Maximus, Inc. Specifically, Maximus included the following additional information following its certification on Attachment G: ADDITIONAL INFORMATION FOR ITN ATTACHMENT G As noted in the form on the previous page, we certify that MAXIMUS Health Services has not terminated any contract or been terminated prior to the end of the contract term during the past five years. Since, MAXIMUS Health Services is a subsidiary of MAXIMUS, Inc. we offer information about the parent company with respect to this certification. Of the thousands of contracts held by MAXIMUS, Inc. during the past five years, there is one incident of relevance. In this situation, in 2007, a MAXIMUS, Inc. contract to provide an updated criminal justice information system was terminated by the State of Connecticut prior to the end of the contract term after the primary subcontractor of MAXIMUS, Inc. abandoned the project. MAXIMUS, Inc. is disputing the State's termination and has sued its primary subcontractor. Mr. Caswell decided to include the forgoing exception or caveat following his certification because he understood that Maximus, Inc., as Maximus' parent company, was an affiliate and he did not want any misunderstanding. Mr. Caswell's interpretation of the word "affiliate" is consistent with the definition applied by AHCA in its review of the Technical Response Mandatory Criteria. At the hearing, Mr. Caswell, testified regarding the Connecticut contract. According to Mr. Caswell, Maximus, Inc., found itself in a position where it was unable to deliver on a contract for an integrated criminal justice solution with the State of Connecticut due to the mal-performance of its subcontractor. Mr. Caswell stated that Maximus, Inc., then moved to terminate the contract for convenience pursuant to the contract's terms; however, the State of Connecticut rejected Maximus' termination for convenience. Mr. Caswell admitted that the State of Connecticut then terminated the contract for cause and filed suit against Maximus, Inc., in approximately November 2007. Maximus is defending itself and suing its former sub-contractor in that on-going litigation. The State of Connecticut has alleged damages of $6.5 million dollars in their claim against Maximus, Inc. As a company listed on the New York Stock Exchange, Maximus, Inc., had annual revenues of approximately $717 million during the most recent fiscal year. The company has no debt and $87 million of cash on hand. The Connecticut dispute is less than one percent of the company's annual revenues. The following facts are undisputed: (a) Maximus has performed thousands of contracts without cancellation; Maximus is a wholly-owned subsidiary of Maximus, Inc.; Maximus, Inc., is a leading provider of health and human services and consulting and program management services primarily to state governments; (d) Maximus, Inc., offers Medicaid-managed care enrollment brokerage services for thirteen states around the country, serving nearly 15 million Medicaid beneficiaries; and (e) Maximus performs enrollment broker contracts for several states. These facts do not make the Connecticut litigation immaterial considering AHCA's clear intent in drafting ITN 0904 relative to terminated contracts. The mandatory requirement for a certification regarding terminated contracts, without exceptions or caveats, was a reasonable specification because, as Mr. Caswell testified, disputes like the one between Connecticut and Maximus, Inc., are common in the industry. Ms. Vaughan correctly interpreted the language of ITN 0904 when she concluded that no explanation of a terminated contract involving a vender or its affiliates was allowed by the solicitation. Therefore, Ms. Vaughan did not forward Maximus' proposal for scoring by the evaluation team. In comparing Maximus' submission to the mandatory requirement for a proposal guarantee to the checklist included in Attachment E, Ms. Vaughan determined that Maximus' submission was responsive. She reached this conclusion even though Maximus' proposal guarantee was not in its own name as required by Section C.14. Instead, Maximus included a "Bid Bond" guaranteed by Maximus, Inc. The bond identifies Maximus, Inc., as Principal, Travelers Casualty and Surety Company of America, as Surety, and AHCA, as Obligee. The bond erroneously states that Maximus, Inc., has submitted a bid for Solicitation Number AHCA ITN 0904, Florida Medicaid Enrollment Broker Services. The bond then goes on to describe its terms and conditions. There is no mention of the Surety guaranteeing performance by any subsidiary or affiliate of Maximus, Inc., or specifically by Maximus. Ms. Vaughan made her decision to reject Maximus’ bid just a week or two after bid openings, sometime in September 2009. However, AHCA did not announce its bid decision as it related to Maximus at that time. Instead, AHCA announced the rejection of Maximus after it announced the intended award of contract to AHS. The notice of Maximus' rejection followed an evaluation of responses by AHS and PSI, a negotiation session with AHS and PSI, and a subsequent negotiation session with AHS, who then provided the best and final offer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the protest. DONE AND ENTERED this 26th day of January, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 26th day of January, 2010. COPIES FURNISHED: Seann M. Frazier, Esquire Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32302-7742 Rachic Avanni Wilson, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 David W. Nam, Esquire Agency for Health Care Administration Fort Knox Building III, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 William E. Williams, Esquire Gray Robinson, P.A. 301 South Bronough Street, Suite 600 Tallahassee, Florida 32301 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Thomas W. Arnold, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background On July 15, 1992, respondent, Department of Health and Rehabilitative Services (HRS), issued a document entitled "Solicitation of Offers For Legal Service Contracts-Child Support Enforcement Program" inviting legal firms or attorneys to submit proposals for providing legal services and representation of HRS in matters involving child support enforcement cases throughout the State of Florida for a nine-month period beginning on October 1, 1992, and ending on June 30, 1993. Although the solicitation was for services in all counties of the State, this case involves only the solicitation of services for representation in those counties within HRS District II that comprise the Second Judicial Circuit (Circuit). They include Franklin, Gadsden, Jefferson, Leon, Liberty and Wakulla Counties. The solicitation provided that three contracts would be awarded within the Circuit, one for Gadsden and Liberty Counties, the second for Leon and Jefferson Counties, and the third for Franklin and Wakulla Counties. The solicitation called for written offers to be filed with the HRS District II office in Tallahassee by August 17, 1992, and for all such offers to be opened the following day. Thereafter, the offers would be evaluated by a review committee whose role was to make a recommendation to the District II administrator. The administrator would then have the responsibility of making a "final decision" to accept an offer and award a contract with an anticipated award date of September 1, 1992. Finally, in paragraph XVIII of the document, HRS reserved the right "to reject any or all offers received, or to cancel this solicitation, regardless of evaluation, if it is determined to be in the best interest of the department." A total of seven law firms in the Circuit filed proposals in response to the solicitation. They included petitioner, Smith and Thompson, P.A., and intervenor, Knowles and Randolph, both of whom are minority firms located in Tallahassee, Florida. Petitioner and intervenor filed proposals for each of the three pairs of counties within the Circuit although intervenor's proposal for Gadsden and Liberty Counties was technically nonresponsive and was therefore not considered. Both petitioner and intervenor have previously provided services for HRS under similar contracts and both are considered to be technically competent to perform the work. By certified letters dated September 2, 1992, HRS advised each of the law firms filing proposals that it had decided to reject all offers and instead to implement a pilot program to provide in-house legal services in the Second Judicial Circuit. No other explanation was given. The letter granted each firm a point of entry to contest that decision. Thereafter, petitioner and intervenor timely filed notices of intent to protest the decision. However, by letter dated September 10, 1992, HRS advised petitioner and intervenor that its prior letter was in error and that instead "the decision of the department to reject all the responses to our recent solicitation of offers for the 2nd Judicial Circuit cannot be the subject of a protest". Even so, on September 18, 1992, petitioner filed a written protest and request for a hearing. This request was ultimately forwarded by HRS to the Division of Administrative Hearings (DOAH). On November 10, 1992, intervenor was authorized to participate herein as a party. In its order of October 27, 1992, transmitting the request for hearing to DOAH, HRS stated in part that: Since there was no bid award ... there can be no protest of an award. Neither can a right to a bid protest proceeding be created by mistake, whether by HRS or otherwise.... Simply put, no bid protest can be permitted under these circumstances. The action of the agency in rejecting all offers and deciding instead to provide legal services through in-house employees rather than through contract attorneys is agency action as that term is understood in the context of Chapter 120. Petitioner may be entitled to a determination as to whether or not that action was an appropriate exercise of agency discretion. For this reason the pleading filed by petitioner (bid protest) will be considered to be a request for an administrative hearing under the provisions of Section 120.57(1), Florida Statutes, for the purpose of testing that determination. Prior Contracts for Child Support Services To place this controversy in perspective, it is necessary to review certain events surrounding the award of the contracts in prior years. Petitioner, or individual members of the firm, had held the HRS contract to provide child support enforcement services in Leon and Gadsden Counties during the years 1979 to 1989. The firm is considered to be competent and reliable and was characterized by one District employee as being the "best" of all contract firms in the state. In May 1989, HRS solicited proposals for the following fiscal year and in July 1989 received three proposals, including ones from petitioner and the law firm of Welch, Munroe and Whitley (WMW). In September 1989, the contract was awarded to WMW. It is fair to draw an inference that because Whitley was a former law partner and roommate of the Governor's general counsel, Munroe's wife was the Governor's chief cabinet aide, and an HRS employee had helped the firm complete its bid package, there may have been some favoritism in awarding the contract to that firm. The contract ran from October 1, 1989, through June 30, 1990. Because of problems by WMW in fulfilling the terms of the contract, the contract was terminated by HRS in April 1990. By then, Whitley had become a member of another Tallahassee law firm, Barrett, Bajoczky, Hoffman and Harper (BBHH). Just prior to terminating the contract, HRS found a serious backlog of cases and knew that, in order to process this backlog, an experienced law firm would have to provide the services for the remainder of the contract year. Accordingly, HRS requested that petitioner provide such services. At the same time, however, the HRS program administrator insisted that, as a condition to receiving the contract, petitioner must sign a joint venture agreement with BBHH wherein it agreed to share its fees with that firm because of Whitley's association. Petitioner reluctantly agreed to do so and executed such an agreement on May 7, 1990. The contract was then awarded to petitioner. Under the terms of the agreement, petitioner was obligated to give 26% of total attorney and paralegal fees to BBHH in return for BBHH providing "secondary legal services required by the child support contract". During the remainder of the contract, all warrants were issued to petitioner who deposited the warrants and then issued a check to BBHH pursuant to their agreement. As it turned out, however, BBHH was never sent any case files and performed no work under the contract to earn its fees. Recognizing that it could obtain the new contract for 1990-91 only by continuing to split fees with BBHH, petitioner made a "business decision" to submit a joint response with BBHH to the new solicitation. The previously executed joint agreement remained in effect. In July 1990, a proposal for the contract year 1990-91 was filed in the name of both firms, and the contract for Leon and Gadsden Counties was thereafter awarded to petitioner and BBHH. Petitioner submitted invoices for work performed to HRS and all warrants were thereafter issued by HRS in the names of both firms. However, after obtaining BBHH's endorsement, the checks were deposited in petitioner's bank account, and petitioner then issued a check to BBHH. Although BBHH was supposed to provide "secondary legal services" to earn its 26% of fees, the firm was never sent any case files and it performed no services during the year. Even so, petitioner was obligated to pay $80,000 to BBHH pursuant to their agreement. It should be noted, however, that petitioner exceeded the goals established by HRS under the contract and performed all work in a competent and professional manner. Further, there is no evidence that HRS paid more than was required for the services performed by petitioner. Rather, petitioner's income was reduced by the amount of payments made to BBHH. Petitioner has never taken any legal action against BBHH for failing to perform under the contract. When BBHH declined to perform any work under the contract, petitioner began voicing oral (but no written) complaints about its arrangement to various HRS personnel, all at the District program administrator level or lower, but received no help. It was told by one District employee that he was sorry but it was something they would have to live with given the circumstances. When a new administration took office in January 1991, which was midway through the contract year, petitioner again complained and eventually its complaints caught the ear of the new Governor's inspector-general. It also asked that the joint contract be terminated. After an investigation was conducted by the inspector- general, in which petitioner fully cooperated, a highly critical report was issued on May 29, 1991, and the HRS program administrator was immediately terminated from employment. The matter was then referred to the Federal Bureau of Investigation (FBI) for possible federal criminal violations, and thereafter the FBI launched an investigation of the contracts. The federal investigation still remains pending. Although petitioner is not now a target or subject of the investigation, it was once a subject of the investigation and is still a part of the overall investigation. In addition, its members have been given use immunity for their testimony. There has also been fairly widespread newspaper coverage of the investigation, and it is fair to say the investigation gained some public notoriety. Even so, petitioner was allowed to complete the contract year and since July 1991 has continued to provide services for HRS in Leon and Gadsden Counties under an interim contract scheduled to expire on December 1, 1992. Post-1991 Events Leading Up to the 1992-93 Contract As early as the spring of 1991, the HRS Secretary had recommended to the Governor that HRS be allowed to consider an in-house program as an alternative to using contract attorneys. There was also a desire to make the competitive process more cost-effective, free of political considerations, and open to minority participation. This desire was reinforced by the findings in the inspector-general's report. In December 1991 the Governor first expressed an interest in HRS conducting an in-house pilot program and to compare the results of that program with the results being obtained under the various contracts. This interest was founded at least in part on financial considerations since the program involves total annual federal and state expenditures of more than $18 million. At the direction of the Governor and HRS Secretary, in January 1992 a blue ribbon committee began exploring the possibility of HRS performing legal services in-house, and, as noted previously, to develop a new solicitation that was more cost-effective, competitive, free of conflict of interest, and open to minority participation. However, due to a press of time, the committee was unable to sufficiently study the in-house issue so as to incorporate that into the 1992-93 solicitation. Even so, there were on-going, informal discussions by various HRS personnel, including the Secretary, regarding an in-house pilot program prior to the solicitation of offers in dispute here. Further, based on several conversations with the Governor, the Secretary was under the impression that the Governor was "adamant" about implementing such a program. HRS often uses District II as a location for pilot programs because of its proximity to the Tallahassee headquarters and its ideal urban-rural mix. In addition, the Second Judicial Circuit is the only judicial circuit wholly within District II. This meant that HRS would be dealing with only one "set" of judges and thus better results could be obtained in a pilot study. Finally, the excellent work rendered by petitioner on prior contracts provided a good point of comparison for a pilot program. The Evaluation Process After the proposals were filed, on August 18, 1992, an HRS evaluation committee opened the proposals and began its evaluation. The proposals were evaluated on both a technical and cost (but not ethical) basis, and a total score was given to each bidder. Pursuant to the terms of the solicitation, the firm with the highest score would be ranked first. The evaluation committee was made up of four District II employees. After reviewing the proposals, the committee voted to recommend that petitioner be awarded the contracts for all six counties since petitioner's proposals had a higher total score than those submitted by the other firms. Intervenor was ranked second in Leon, Jefferson, Franklin and Wakulla Counties. However, its proposed cost was around 25% higher than that of petitioner. The rankings and scores are reflected on petitioner's exhibit 5 received in evidence. The committee's recommendation, including those for the other counties within the District, was reduced to writing in the form of a report and was given to Dr. John M. Awad, District II administrator. On August 27 and 28, 1992, or after the committee report was prepared, meetings were held in the HRS general counsel's office regarding the contract in issue. Four HRS lawyers attended the meeting. There was a concern over the fact that even though petitioner was the highest ranked contractor, it was a part of the FBI investigation. In addition, one attorney represented to the others that he had been told by the Governor that the contract should not be awarded to petitioner because of that investigation and the Governor's desire to implement an in-house program. The same attorney expressed the view, although unsubstantiated, that petitioner may have had inside information in preparing its proposal. Accordingly, the attorneys discussed alternatives available to the agency in the event it decided not to award the contract to petitioner. One attorney concluded that the agency would not be able to give a valid reason for refusing to award the contract to petitioner, the highest ranking contractor, and thus it should reject all offers and go with a pilot program. Accordingly, it may be inferred that HRS legal counsel's subsequent recommendation to reject all bids was based primarily on legal counsel's inability at that point in time to articulate a valid reason for rejecting petitioner's proposal. These concerns were then presented to Dr. Awad. After he received the committee's recommendations, Dr. Awad awarded contracts for all counties except those within the Circuit. As to those counties within the Circuit, he did not sign off on the recommendation and execute a contract since he says he desired to first ascertain whether the agency intended to implement an in-house pilot program within the Circuit. Although he did not say so, it can be inferred that Dr. Awad's decision to not award the contract was based at least in part on his conversations with District counsel and his awareness that the top bidder was associated with contracts under active federal investigation. Accordingly, he called a meeting for Tuesday, September 1, 1992, to address this issue at the District level. Also, on August 31, 1992, Dr. Awad instructed Mr. William J. McEvoy, the District program administrator, to prepare cost figures for doing an in-house pilot program in the Second Judicial Circuit. This was the first knowledge that Mr. McEvoy had that HRS was considering a pilot program for the 1992-93 contract year. Using information derived from the various proposals as a benchmark, Mr. McEvoy developed a proposed first year cost based on the assumption that HRS could perform the work by hiring three staff attorneys and six support staff. This study, which was prepared over the course of an afternoon, was then given to Dr. Awad on September 1, 1992. It reflected an annualized cost in the first year of $402,599.00 but projected lower costs in the following years. These costs approximated or were slightly lower than the costs proposed by petitioner and were 25% lower than the next highest bidders. However, until the pilot program is actually run, a true comparison of costs cannot be made. A second meeting concerning the contract was held on September 1, 1992. Attendees were Dr. Awad, the HRS Secretary, four HRS staff attorneys, and perhaps an HRS assistant secretary. At that time, a concern was expressed to the Secretary that petitioner was a part of an investigation by the FBI. One HRS attorney advised the participants that, because of the pending investigation of the HRS contracts and petitioner's association with those contracts, and a desire to implement an in-house program, the Governor did not wish the contract to be awarded to petitioner. The participants also discussed the cost and feasibility of implementing an in-house program, the time frame for doing so, and the perameters of the program. At that point, the driving force to go in- house with the services was the fact that the highest ranking contractor was associated with prior contracts being investigated by the FBI. A decision was then made by the Secretary to reject all proposals, withdraw the solicitation, and implement an in-house pilot program within the Circuit beginning on December 1, 1992. As stated by him at hearing, the Secretary rejected petitioner's offer because of his concern with not only the contractor's integrity, but also the integrity of the process as a whole. More specifically, he was concerned with the fact that $80,000 of state funds had been paid to BBHH for doing no work and he questioned the propriety of awarding a contract to a firm under active investigation by the FBI. The associated decision to reject all offers and initiate a pilot program was premised on the notion that (a) the second highest ranking firms submitted proposals having substantially higher costs than petitioner, (b) projected first year in-house costs were equal to or less than that proposed by petitioner, and (c) the Governor had asked that an in-house program be given priority. Accordingly, the Secretary decided to reject all bids and withdraw the solicitation of offers. It is noted that under paragraph 10.b., Part 74, Appendix G of Chapter 45, Code of Federal Regulations, HRS is required to give consideration to the "contractor integrity" in making an award. Thus, even though HRS did not correlate its concern over the contractor's integrity with the above federal regulation until this point in the process, the reliance on the regulation as a reason to reject a contractor was still valid and appropriate. In other words, since there was always a concern with the federal investigation, the fact that HRS did not initially discover that a federal regulation supported its theory was not a fatal flaw in the decision- making process. Finally, the undersigned has rejected as being unsubstantiated the contention by petitioner that an HRS attorney favored another contractor obtaining the award and thus improperly influenced the agency's decision. Is the Solicitation a Bid? The contract in question is funded primarily with federal funds and is thus subject to relevant federal regulations, one of which requires that the contract be awarded through a competitive process. Therefore, even though HRS is exempt from the competitive sealed bid and proposal requirements of Chapter 287, Florida Statutes, when procuring outside legal services, the federal regulations require a competitive process. Accordingly, in soliciting offers from law firms, HRS was obliged to use a competitive process akin to that required under chapter 287. In that vein, it prepared a document which called for sealed competitive bids (offers) from prospective contractors, provided for a competitive evaluation and ranking by an independent committee, and further provided that the contract would be awarded to the highest ranking contractor. In addition, paragraph IX of the solicitation of offers provided that in the event a participant wished to file a protest to an award, it must do so within seventy-two hours after receiving "notice of contract award or intended contract award" and must then file a "formal written notice of protest" within ten days thereafter. The same document also provided that if protests were filed, the agency would seek to informally resolve the dispute within seven calendar days, and if a protest was not resolved by mutual agreement, the protestant was entitled to a formal hearing before DOAH. These procedures essentially track the procedures for resolving bid disputes that are codified in Subsection 120.53(5), Florida Statutes. Therefore, the undersigned has rejected the contention by HRS that the process used herein does not fall within the ambit of a bid dispute.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by respondent dismissing the protests of petitioner and intervenor. DONE AND ENTERED this 17th day of December, 1992, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 17th day of December, 1992. APPENDIX TO RECOMMENDED ORDER CASE NO. 92-6440BID Petitioner: 1. Partially adopted in finding of fact 1. 2. Rejected as being unnecessary. 3-4. Partially adopted in finding of fact 10. 5. Partially adopted in finding of fact 17. 6. Partially adopted in finding of fact 13. 7. Partially adopted in finding of fact 2. 8-11. Partially adopted in finding of fact 5. 12. Partially adopted in finding of fact 12. 13-14. Partially adopted in finding of fact 13. 15. Partially adopted in finding of fact 2. 16-18. Partially adopted in finding of fact 13. 19. Rejected as being argument. 20. Rejected as being irrelevant. 21-24. Partially adopted in finding of fact 14. 25. Rejected as being irrelevant. 26-27. Partially adopted in finding of fact 14. 28. Partially adopted in finding of fact 15. 29. Rejected as being contrary to the evidence. 30-32. Partially adopted in finding of fact 15. Partially adopted in finding of fact 16. Rejected as being irrelevant. Partially adopted in finding of fact 10. Partially adopted in finding of fact 15. 37-42. Partially adopted in finding of fact 3. 43. Rejected as being unnecessary. 44. Partially adopted in finding of fact 3. 45-48. Partially adopted in finding of fact 5. 49. Partially adopted in findings of fact 5 and 6. 50-57. Partially adopted in finding of fact 6. 58-62. Partially adopted in finding of fact 7. 63-71. Partially adopted in finding of fact 8. 72. Rejected as being uncorroborated hearsay. 73-74. Partially adopted in finding of fact 8. 75. Partially adopted in finding of fact 3. 76-77. Rejected as being irrelevant. 78. Partially adopted in finding of fact 12. 79. Partially adopted in finding of fact 16. 80. Partially adopted in finding of fact 2. Respondent: 1-3. Partially adopted in finding of fact 1. 4. Rejected as being unnecessary. 5. Partially adopted in finding of fact 2. 6-8. Partially adopted in finding of fact 11. 9-10. Partially adopted in finding of fact 16. 11. Rejected as being unnecessary. 12-14. Partially adopted in finding of fact 12. 15. Partially adopted in finding of fact 1. 16. Rejected as being unnecessary. 17-18. Partially adopted in finding of fact 1. 19-21. Rejected as being unnecessary. 22. Partially adopted in finding of fact 13. 23-32. Partially adopted in finding of fact 16. 33-37. Partially adopted in findings of fact 9 and 10. Partially adopted in finding of fact 16. Partially adopted in finding of fact 10. Partially adopted in finding of fact 11. Partially adopted in finding of fact 16. Partially adopted in finding of fact 11. 43-44. Partially adopted in finding of fact 16. 45. Rejected as being unnecessary. 46. Partially adopted in finding of fact 3. 47-57. Partially adopted in finding of fact 5. 58. Partially adopted in finding of fact 7. 59-62. Partially adopted in finding of fact 6. 63. Partially adopted in finding of fact 7. 64-65. Partially adopted in finding of fact 8.. 66-78. Partially adopted in finding of fact 7. 79-83. Partially adopted in finding of fact 8. 84. Partially adopted in finding of fact 9. 85-87. Partially adopted in finding of fact 8. Partially adopted in findings of fact 15 and 16. Partially adopted in finding of fact 8. Partially adopted in finding of fact 13. Rejected as being unnecessary. 92-93. Partially adopted in finding of fact 17. 94. Partially adopted in findings of fact 16 and 17. 95-96. Partially adopted in finding of fact 2. 97. Partially adopted in finding of fact 16. 98-99. Partially adopted in finding of fact 2. 100-101.Partially adopted in finding of fact 13. Partially adopted in finding of fact 15. Rejected as being unnecessary. Partially adopted in finding of fact 8. 105-106.Rejected as being unnecessary. 107. Rejected as being cumulative. Note - Where a proposed finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, not supported by credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services Building One, Room 407 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John S. Slye, Esquire Building One, Room 407 1323 Winewood Boulevard Tallahassee, FL 32399-0700 W. Crit Smith, Esquire 1530 Metropolitan Boulevard Tallahassee, FL 32308 Harold M. Knowles, Esquire 528 East Park Avenue Tallahassee, FL 32301 Susan P. Stephens, Esquire Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, FL 32399-1050
