Findings Of Fact Respondent was first licensed by Petitioner as a commercial driving instructor in November, 1981, until November, 1982. Until that license was summarily suspended on April 8, 1982, Respondent was employed by Fajardo Driving School. On January 8, 1982, at approximately 6:00 A.M., Respondent approached the waiting line at the Central Driver's License Office with two Cuban applicants for drivers' licenses. A number of Haitian applicants were at the beginning of the line. Respondent attempted to place his two students in front of the Haitians. When the Haitians refused to allow Respondent and his students to enter the line in front of them, Respondent and his two students went to some nearby trash cans, obtained bottles, and began fighting with and striking the Haitians who had refused to give up their place in line to Respondent and his students. After the altercation, Respondent got in his car and left the area. He subsequently returned to the Central Driver's License Office, where he was arrested and charged with aggravated battery with a bottle. As a result of the bottle throwing engaged in by Respondent and his two students, two of the Haitians who were attacked received head injuries requiring hospital treatment. On other occasions, Respondent has placed his students at the head of the line without resorting to violence in order to obtain such preferred treatment for his students. On March 23, 1982, at the Central Driver's License Office, Respondent had a disagreement with Enelio Rodriguez, another driving instructor for Fajardo Driving School, over a ten-dollar charge for a rental car. When Rodriguez refused to pay Respondent the ten dollars Respondent was demanding, Respondent struck Rodriguez in the eye. On March 23, 1982, Miguel Orlando Uria, a driving instructor and owner of Uria Driving School, requested Amado Perera, a driving instructor for Autosa Driving School, to move Perera's car from the starting position, so Uria could place his student in the starting position for the driving test at the Central Driver's License Office, since Uria's student was due to be tested earlier in time than any of Perera's students. Although neither Respondent's car nor Respondent's student was the subject matter of the discussion between Uria and Perera, Respondent interposed himself into the argument and became "nasty." Respondent did not strike anyone on this occasion; however, Department personnel were present.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered permanently revoking the commercial driving instructor's certificate card of Respondent, Ernesto E. Luque. RECOMMENDED this 30th day of July, 1982, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1982. COPIES FURNISHED: Judson M. Chapman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Alan Goldfarb, Esquire 12th Floor, Roberts Building 28 West Flagler Street Miami, Florida 33130 Mr. Chester F. Blakemore Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301
Conclusions _ This matter came before the Department for entry of a Final Order pursuant to an order closing the file at the Division of Administrative Hearings. The record reflects that the parties have settled their dispute and entered into a Settlement Stipulation. Having reviewed the stipulation and being otherwise fully advised in the premises, it is therefore ORDERED AND ADJUDGED that: 1. Respondent shall pay a civil fine of $5,000.00. Payment shall be made in the form of a certified cashier’s check payable to The Department of Highway Safety and Motor Vehicles and delivered to the Division of Motor Vehicles, Bureau of Field Operations, Region IV Office, at 1354 South Woodland Boulevard, Deland, Florida, 32720. Payment shall be delivered as set out herein within thirty (30) days of the entry of this final order by the Division of Motor Vehicles approving this settlement. Jan 2? 2010 11:57 DHSMY LEGAL TLH Fax: 850-617-5112 Jan 2? 2010 11:56am 002/009 2. Respondent agreed to voluntarily surrender its motor vehicle dealer license within thirty (30) days of the entry of this final order by the Division of Motor Vehicles approving the settlement. 3. Respondent expressly and affirmatively agreed that if it fails to timely pay the fine or to surrender its license as set forth herein the Petitioner will revoke its license without prior notice. Respondent further expressly and affirmatively waives its ability to challenge or appeal such revocation by any means in any forum whatsoever. 4. Florida Luxury Coach, LLC, may file an application for a motor vehicle dealer license pursuant to section 320.27, Florida Statutes. If Florida Luxury Coach, LLC, does apply, the: following conditions will apply: (a) The Petitioner will not rely on the violations alleged in the administrative complaint in this matter to deny the application or otherwise hold such violations against Florida Luxury Coach, LLC. (b) _—_- Victoria L. Scott will be the sole manager/member of Florida Luxury Coach, LLC. (c) Lon Neuville may be employed by Florida Luxury Coach, LLC, solely in a sales capacity. : (d) Victoria L. Scott and Florida Luxury Coach, LLC, expressly and affirmatively agree that no motor vehicle dealer license will be issued to it until the civil fine agreed to herein is paid and until the Respondent surrenders its motor vehicle dealer license. (e) Florida Luxury Coach, LLC, must meet the normal qualifications imposed by statute and administrative rule for issuance of a motor vehicle dealer license. (63) Failure to abide by the conditions of this agreement will be grounds for denial. or revocation of a motor vehicle dealer license to Florida Luxury Coach, LLC and Victoria L. Scott. 5. Victoria L. Scott signed the agreement individually, as a member of the Respondent and as a member of Florida Luxury Coach, LLC. 6. Each party shall bear its own costs and attomey fees in this matter. DHSMV LEGAL TLH Fax: 850-617-5112 Jan 2? 2010 11:56am P003/009 7. The undersigned warrant that they entered into this agreement freely and voluntarily and are doing so under advice of legal counsel. They further warrant that they have the full authority of their respective parties to enter into the agreement and to bind the parties to its terms. 8. Each party will bear its own costs and attorney fees. It is further ORDERED that the Settlement Stipulation of Petitioner and Respondent is adopted and incorporated into this Final Order f the Department in accordance with its terms. DONE AND.ORDERED this 2b ay of January, 2010, in Tallahassee, Leon County, Florida. Copies furnished: Michael J. Alderman, Esquire Senior Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kixkman Building, Rm. A-432 Tallahassee, Florida 32399-0504 Peter N. Hill, Esquire Wolff, Hill, McFarlin & Herron, P.A. 1851 West Colonial Drive Orlando, Florida 32804 A A. FORD, Directo Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkanan Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this day of January, 2010. Jan 2? 2010 OHSMV LEGAL TLH Fax: 850-617-5112 J.D. Parish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 William Camper Hearing Officer Division of Motor Vehicles Julie Gentry Chief, Bureau of Field Operations Nalint Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 11:5? Jan 27 2010 11:57am 004/009
The Issue The issue is whether Respondent discriminated against Petitioner based on Petitioner's race.
Findings Of Fact Petitioner, Phillip McTaggart, is a white male who retired after more than 20 years in the United States Air Force (including the reserves), and 18 years with Delta Airlines. Respondent, Pensacola Bay Transportation Company, specializes in the transportation of people with special transportation needs, including the elderly, disabled, and economically disadvantaged. Respondent contracts with the Escambia Area Transit Service, the local coordination board of the Florida Commission for the Transportation Disadvantaged, to provide these services. Many of Respondent's customers are wheel-chair bound or otherwise need assistance with transportation. Respondent uses both automobiles and specially designed buses for the transportation of wheel-chair bound customers. Petitioner applied for a job with Respondent by filling out an application on January 20, 2009. His application did not specify for which position he was applying. Respondent had hired a white driver just days before Petitioner's application. Respondent hired three African- American drivers after Petitioner applied. Each of the hired drivers stated on their applications that they were applying for driver positions. The last driver hired by Respondent in 2009 was on April 13. All of the drivers hired after Petitioner applied had submitted their application before Petitioner applied. Each of the hired drivers' application reflected previous wages in line with wages paid to other drivers in the Pensacola area. Petitioner's application showed he had earned wages at his previous jobs that significantly exceeded the wages Respondent was paying its drivers. Petitioner testified that he either re-applied or updated his application for a driver position in May 2009, but Respondent has no record of the subsequent application. Petitioner contends, through the use of a vocational expert, that Respondent hires minority candidates for its driver workforce at a rate that far exceeds the demographics of the Pensacola area. Also, a large number of the drivers are minority women, who statistically receive lower wages than white male employees based upon national Department of Labor figures. Petitioner contends that he was discriminated against by being a white male with a history of receiving higher wages than the typical driver employed by Respondent. Some companies refuse to hire individuals they believe are overqualified for the position for which they apply. The reasons for this failure to hire the "overqualified" are that they command higher wages, as well as a general fear they will leave to seek higher-paying employment. Petitioner listed on his application his previous experience in the Air Force as an aircraft mechanic. He listed his previous experience with Delta Airlines as a customer service agent in public relations, baggage, and ticketing. Nowhere did Petitioner hint at previous experience as a driver. Petitioner's updated resume, which he testified he supplied to Respondent with his application failed to make mention of any professional driving experience. He testified at hearing, however, that when he went to update his application in May 2009, he told Respondent's personnel that he had driving experience from his time serving in the Air Force. Respondent is a unionized company that operates under a collective bargaining agreement (CBA). Its wages are set by the CBA. Petitioner's vocational expert was not aware of the company's union status when she performed her wage study for the Pensacola area. Respondent inherited many of its employees from a company it acquired in 2001. The company was required to keep these employees at the wages they were already receiving under the CBA. Respondent had never hired a driver with an employment background matching Petitioner's. Tammie Nelms, the human resources manager for Respondent, liked the fact that Petitioner had such a stable work history. She would have called him back had she known he was seeking a driver position. Although Respondent has a box full of driver applications (about 50 applied in 2009 alone), few whites apply for driver positions at Respondent's Pensacola location. The company has three white maintenance workers in the Pensacola location. White drivers more commonly apply at Respondent's Santa Rosa County location. Respondent has a policy of non-discrimination in the hiring of employees.
Recommendation it is Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 1st day of June, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 1st day of June, 2010. COPIES FURNISHED: Ryan M. Barnett, Esquire Whibbs & Stone, P.A. 801 West Romana Street, Unit C Pensacola, Florida 32501 Elizabeth Darby Rehm, Esquire The Kullman Firm Post Office Box 1287 Mobile, Alabama 36633 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2900 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2900 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be determined in this case is whether the Department of Highway Safety and Motor Vehicles (“Petitioner”) may properly terminate its contract with Perotte Driving and Traffic School, Inc. (“Respondent”), on the basis of failure to comply with the provisions of the contract, pursuant to section 322.56(3)(f), Florida Statutes.
Findings Of Fact Petitioner is the State agency authorized to enter into contracts with driving schools to administer driving and skills portions of examinations for driver licenses, pursuant to section 322.56. Petitioner regulates third-party administrators for compliance with contract provisions in furtherance of Petitioner’s mission to ensure safe roads in the State of Florida. Section 322.56 authorizes Petitioner to contract with private sector entities to conduct services in the same manner Petitioner conducts services at both its driver license offices and tax collector offices. Respondent is a third-party administrator under contract with Petitioner to conduct Class E Knowledge Examinations for State of Florida driver licenses. Ms. Dume is employed as a Regulatory Program Specialist for Petitioner. Her duties include visiting third-party administrators and monitoring their activities to ensure that they are abiding by the terms of their contracts with Petitioner. Assistance by Misrepresentation On October 8, 2020, Ms. Dume was present at Respondent’s school conducting an on-site inspection. She left at 5:45 p.m., having been informed by Mr. Perotte that the school closed at 6:00 p.m. Ms. Dume returned to continue her inspection on October 9, 2020, arriving at 10:20 a.m. She monitored the school from the parking lot before entering at 11:20 a.m. Then, Ms. Dume observed Mr. Perotte entering information into his computer showing that a student had completed the four-hour Traffic Law Substance Abuse Education course (“TLSAE”). The TLSAE is a requirement to earn a Florida driver license. The course must be taken in one consecutive four-hour period. Ms. Dume obtained the certificate for TLSAE course completion for the student, which reflected a completion date of October 9, 2020. However, based on Ms. Dume’s credible testimony, it would have been impossible for the student to have completed the four-hour TLSAE course on the date that Mr. Perotte entered into the computer because Ms. Dume was present up until 15 minutes prior to the school closing and did not observe the student taking the course. Mr. Perotte’s claim that the student took the course after Ms. Dume left was not credible. His credibility was further diminished by his inconsistent and illogical testimony that he entered the erroneous date of course completion by mistake. Although it was established that the same student did complete the TLSAE in 2013, that fact is immaterial to Mr. Perotte’s clear misrepresentation of the course completion date. Ensuring Only Applicants Allowed in Examination Area During Ms. Dume’s on-site inspection on October 8, 2020, she observed an applicant inside the testing room taking the knowledge exam with an instructor also inside the testing room. The instructor explained to Ms. Dume that she was inside the testing room to have the applicant sign paperwork, but Ms. Dume believed that the reason was pretextual based on her observations. On October 14, 2020, during another on-site inspection of Respondent, Ms. Dume observed Mr. Perotte inside the testing room standing over a customer who was sitting down taking the knowledge exam. Mr. Perotte testified that he was inside the testing room while a test was in progress to fix a technical issue with the computer. He also testified, however, that in the event of a technical issue, he would ask the examinee to exit the testing room while a staff member addressed the issue. Mr. Perotte’s testimony was unconvincing and inconsistent. Allowing the Department to Conduct Random Inspections Ms. Dume testified that for each of her on-site inspections that are relevant to this proceeding, on October 8, 9, and 14, 2020, she entered Respondent’s facility through an unlocked door. During her October 14, 2020, inspection, Ms. Dume observed that there were a number of customers present when she arrived at 12:30 p.m. A few minutes later, all of the customers were gone, and Mr. Perotte stopped others from entering the school. Ms. Dume believed that the customers were discouraged by Mr. Perotte from patronizing the school while Ms. Dume was present. Ms. Dume left around 2:30 p.m., due to the school being empty. The reasons why customers may have left or decided not to enter the school in Ms. Dume’s presence were based on assumptions and were not conclusively established.
Conclusions For Petitioner: Elana J. Jones, Esquire Roberto R. Castillo, Esquire Department of Highway Safety and Motor Vehicles Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399 For Respondent: Matthew E. Ladd, Esquire Matthew E. Ladd P.A. Suite 301 4649 Ponce De Leon Boulevard Coral Gables, Florida 33146
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found in violation of the contract, as alleged in the Complaint, and that the contract be terminated. DONE AND ENTERED this 22nd day of October, 2021, in Tallahassee, Leon County, Florida. S BRITTANY O. FINKBEINER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2021. COPIES FURNISHED: Elana J. Jones, Esquire Department of Highway Safety and Motor Vehicles Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399 Joseph R. Gillespie, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432, MS02 2900 Apalachee Parkway Tallahassee, Florida 32399-0504 Terry L. Rhodes, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-443 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Christie S. Utt, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Matthew E. Ladd, Esquire Matthew E. Ladd P.A. Suite 301 4649 Ponce De Leon Boulevard Coral Gables, Florida 33146
The Issue The issue in this case is whether Florida Virtual School's intended decision to award a contract, challenged by All Florida Safety Institute, LLC, is contrary to Florida Virtual School's governing statutes, rules, policies, or the proposal specifications.
Findings Of Fact Florida Virtual was created by statute to develop and deliver online distance learning in the State of Florida. § 1002.37, Fla. Stat. Florida Virtual is governed by a board of trustees appointed by the Governor. § 1002.37(2), Fla. Stat. Florida Virtual issued the RFP on October 14, 2019, seeking responses from qualified proposers interested in providing hands-on, "Behind the 1 On April 20, 2020, Petitioner filed exceptions to the proposed recommended orders submitted by the other parties. These exceptions were filed at DOAH, before the Recommended Order was issued. Exceptions to proposed recommended orders are not authorized by statute or rule and have not been considered. Wheel" driver education courses to Florida Virtual's driver education students. Florida Virtual received proposals from two qualified vendors, All Florida and United Safety Council, the current Behind the Wheel course provider. The RFP established the following scoring criteria: Criteria No. Step 1: Main Criteria Description Weight 1. Compliance 10% 2. Qualifications, Experience of Team Members and References 24% 3. Contractor Methodology 20% 4. Demonstrated Ability to Meet or Exceed Stated Requirements and Responses to Questionnaire 25% 5. Price Proposal 20% 6. Acceptance of Invoice Payments via FLVS Visa Purchasing Card 1% TOTAL 100% The six categories were to be scored using a 1 to 20 scale. The contract was to be awarded to the respondent that received the highest total weighted score. The RFP required that the proposals be scored by the Proposal Evaluation Committee (Committee). Florida Virtual appointed four of its employees to serve on the Committee: Debbie Adams, the instructional leader over Florida Virtual's driver education program; Janet Conway, an accounting manager; Martin Kelly, the senior director of curriculum development; and Kevin Locke, the director of project management. On November 14, 2019, the Committee met at a public meeting to score the proposals. The meeting was audio-recorded. Ms. Conway, Mr. Kelly, and Mr. Locke were physically present at the meeting. Ms. Adams attended the meeting remotely with an audio connection. Karen Stolarenko is Florida Virtual's senior solicitation specialist. Ms. Stolarenko and her supervisor, Nathaniel Askew, facilitated the Committee's deliberation at the public meeting as representatives of Florida Virtual's procurement department. One or more representatives of United Safety Council attended the public meeting and observed the Committee's deliberations. All Florida was aware of the public meeting but did not send a representative to attend. The proposals were provided to the Committee before the meeting for review, but the scoring was done at the public meeting. The evaluators' individual scores were tabulated at the conclusion of the public meeting. Ms. Adams gave All Florida the highest weighted score, but the other three evaluators all gave United Safety Council the highest weighted score. United Safety Council had the higher total weighted score of 72.40, compared to All Florida's total weighted score of 70.48. At the conclusion of the public meeting, the Committee voted unanimously to award the contract to United Safety Council as the respondent receiving the highest total weighted score. PROTEST GROUNDS Class A v. Class E License Requirements for Instructors Section A.2(1) of the RFP includes the following minimum requirement for instructors: Class A license with a refresher every five (5) years or retest required as a result of passing examinations and road test approved by Bureau of Driver Education prior to issuance of certificate. Must possess 3 years of experience with a Class A CDL and no conviction on record within the last five years in order to be qualified. A Class A license is a commercial driver's license that is unrelated to the driver education course sought by the RFP. Although there was no testimony directly on point, Florida Virtual essentially conceded that the RFP's reference to a Class A license was an error. All Florida did not protest the RFP's Class A license requirements after the RFP was issued, to argue those requirements make no sense for the services sought by the RFP. Instead, it committed in its proposal to meet all qualifications for a Class E license, the license sought by students who attend the Behind the Wheel driver education course. While this is a logical response to what appears to be an error in the RFP, it was risky because it did not comply with the letter of the RFP. United Safety Council took the safe route, responding by confirming that its instructors would meet the requirements of section A.2(1). At the public meeting, before the proposals were scored, Ms. Adams (the instruction leader for Florida Virtual's driver education program) told the other evaluators that a Class A license was inapplicable to the course services sought in the RFP. No evidence was presented to prove that any evaluator scored All Florida lower because it committed to meet Class E—as opposed to Class A—license requirements for instructors. Committee's Deliberation at the Public Meeting At the conclusion of the public meeting, the evaluators were allowed to take a break and move around the room while their scores were handed to Ms. Stolarenko to be tabulated. The break was approximately 20 minutes long. This break was not recorded, but was not required to be under any governing statute, rule, policy, or RFP specification. Following this break to tabulate the scores, there was an interruption of the recording of the meeting. When the audio recording resumed, Ms. Stolarenko can be heard stating: This is Karen Stolarenko, November 14th 2019, 3:24 p.m. We are reconvening to go over the scores and rankings for the Behind the Wheel Driver Education RFP. Our network went down, and we did have our prior recording interrupted. So there will be two separate recording sessions for today's meeting. I'll do a quick—since we did have an interruption just do a quick roll call so everybody knows who is in the room. Thereafter, the evaluators can be heard on the audio recording confirming their unanimous recommendation to award the contract to United Safety Council as the highest-ranked respondent, a decision consistent with the tabulation of the evaluators' score sheets and the RFP's award specifications. There is no evidence that the interruption in the audio recording was intentional or in bad faith, or that it violated any governing statute, rule, policy, or specification of the RFP. The meeting was public; there is no evidence that anyone was excluded from this portion of the meeting. All Florida could have sent one or more representatives to attend the meeting but chose not to. Corrections to Evaluator Scoresheets The evaluators were provided individual scoresheets to record their scores. The evaluators who attended the meeting in person—Mr. Locke, Mr. Kelly, and Ms. Conway—were provided paper scoresheets and pens to handwrite their scores. Ms. Adams, who attended the meeting remotely, was provided a digital scoresheet and typed her scores. Mr. Kelly's scoresheet included two scores that were scratched out and rewritten. Under the category labeled "Compliance," Mr. Kelly's final rewritten score for All Florida was 19. Under the same category for United Safety Council, Mr. Kelly's final, rewritten score was 18. Mr. Kelly testified that he scratched out his original scores and replaced them with the rewritten final numbers listed above. He further testified that he could not recall why he scratched out the original scores before turning in his scorecard to Ms. Stolarenko other than that he changed his mind. Mr. Kelly's testimony was credible and is accepted here. Ms. Conway testified that she initially erred in the manner in which she scored the proposals; that is, she assigned scores based upon the total weight instead of using the 1 to 20 scale she should have applied to score the respondents for each of the six categories. For example, the "Compliance" category was weighted 10 percent, and Ms. Conway mistakenly applied a 1 to 10 scale (instead of a 1 to 20 scale) when initially scoring this category. She made the same mistake for both respondents. Ms. Stolarenko brought this error to Ms. Conway's attention when she handed in her scoresheet for tabulation at the public meeting. Ms. Conway testified that she corrected the error in her scoresheets without changing the intent behind her original scoring. Two of the categories required no alteration, because they were weighted 20 percent, and Ms. Conway therefore applied the correct 1 to 20 scale when she originally scored those categories. Ms. Conway's testimony was credible and is accepted here. Ms. Conway did not change the intent behind her original scores when she corrected her scores to apply the correct 1 to 20 scale, and this correction did not disadvantage All Florida or provide a competitive advantage to United Safety Council in any way. In fact, Ms. Conway's correction to her score sheet was required to comply with the RFP's specifications on the evaluation of responses. Evaluator Comment Regarding Tesla Fleet All Florida committed to include new Tesla vehicles in its fleet for the Behind the Wheel student drivers' use. When this commitment was discussed by the Committee, Evaluator Mr. Kelly can be heard on the audio recording making a statement that sounds like "[w]hat a bunch of idiots." All Florida argues that this comment shows bias against it and that it caused the other evaluators to view its proposal through a negative lens. That was not proven here. Mr. Kelly testified that he did not recall making the "idiots" comment, but that it sounds like something he might have said because he recalled thinking it was "silly to give those types of cars, that are quite expensive," to student drivers.2 Mr. Kelly went on to testify that his opinion regarding All Florida's Tesla commitment had no bearing on his scoring. Mr. Kelly's testimony was credible and is accepted. Although Mr. Kelly could have chosen better words to express himself, the use of the term "idiots" in this context does not suggest that he was biased. The other evaluators denied hearing Mr. Kelly's "idiots" comment; there is no evidence that this comment influenced any of the scores the other evaluators assigned to All Florida. Qualification and Experience Scores All Florida contends that the evaluators failed to consider the "real numbers" of teen drivers served by All Florida as compared to those served by United Safety Council when they scored the respondents in the category for "Qualifications, Experience of Team Members and References." All Florida offered no evidence to support this protest ground. The evaluators testified at the final hearing but were not questioned on this issue. United Safety Council failed to prove that the scores assigned by the evaluators for "Qualifications, Experience of Team Members and References" were arbitrary or capricious. United Safety Council's Proposal Irregularities Section B.1 of the RFP, entitled "Respondent Questionnaire," contains 14 questions the respondents were instructed to answer in their proposals. United Safety Council's proposal included answers to questions 1 through 5 but omitted the answers to questions 6 through 14. All Florida's proposal included answers to the entire questionnaire. United Safety Council's omission caught Ms. Stolarenko's attention; at the public meeting, she advised the evaluators that United Safety Council 2 The audio recording of this comment from Mr. Kelly is very faint and difficult to hear. But given Mr. Kelly's testimony that it "sounds like something he might have said," the inference is that he did make the "idiots" comment. failed to answer questions 6 through 14. Most, but not all, of the information answering questions 6 through 14 can be found elsewhere in United Safety Council's proposal. Ms. Stolarenko correctly advised the evaluators that they were to score United Safety Council's proposal based on the information contained in its proposal. The RFP required the respondents to consecutively number all pages of the proposal. United Safety Council did not consecutively number all pages of the proposal. All Florida does not allege that United Safety Council's proposal should have been deemed non-responsive—and thus ineligible for a contract award—due to these proposal irregularities.3 Instead, All Florida alleges that it should have received a higher score because its proposal did not contain the same deficiencies. All Florida failed to prove that the evaluators' scores were arbitrary or capricious because United Safety Council received overall higher weighted scores, notwithstanding these two irregularities in its proposal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Florida Virtual School dismissing the protest of All Florida Safety Institute, LLC. DONE AND ENTERED this 4th day of May, 2020, in Tallahassee, Leon County, Florida. S BRIAN A. NEWMAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2020. COPIES FURNISHED: David Jeffrey D'Agata, General Counsel Florida Virtual School 2145 Metrocenter Boulevard, Suite 100 Orlando, Florida 32835 (eServed) Samuel P. Garrison, Esquire Bradley, Garrison & Komando, P.A. 1279 Kingsley Avenue Orange Park, Florida 32073-4603 (eServed) Jessica Beecham, Board Clerk Florida Virtual School 2145 Metrocenter Boulevard, Suite 100 Orlando, Florida 32835 Keith A. Graham, Esquire Marchena & Graham, P.A. 976 Lake Baldwin Lane, Suite 101 Orlando, Florida 32814 (eServed) Shannan Collier Stalvey, Esquire The Law Office of Shannan S. Collier, P.C. 100 Galleria Parkway Atlanta, Georgia 30339 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Dr. Barbara M. Jenkins, Superintendent Orange County School Board 445 West Amelia Street Orlando, Florida 32801-0271
The Issue Whether Respondent, Virginia Bryan Martin, is guilty of the acts alleged in the Administrative Complaint dated April 16, 2007, and, if so, should her Florida Professional Educator's Certificate be disciplined.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Respondent holds Florida Professional Educator's Certificate No. 624273, covering the areas of educational media specialist, elementary education, middle grades integrated curriculum, family and consumer science, and exceptional student education. During all times material to the allegations of misconduct, Respondent was employed at Brandon Alternative School in the Hillsborough County School District. In the early morning hours of April 25, 2004, Respondent was arrested for DUI by Officer Michael Smith of the Lakeland Police Department. Officer Smith videotaped Respondent's erratic driving and the following police stop. The videotape and testimony revealed that Respondent was driving her automobile while under the influence of alcohol. Although initially denied, Respondent acknowledged coming from a bar. She was abusive and threatening to the officer and her daughter, who arrived on the scene of Respondent's arrest. Respondent's conduct was, in short, reprehensible. On November 5, 2004, Respondent was charged with DUI incidental to a motor vehicle accident that occurred in Lakeland, Florida. Both vehicles were damaged to such an extent that they were not drivable. Respondent was charged with careless driving, in addition to DUI. At the hearing, Respondent admitted that prior to the accident, she had drunk so much that she was "feeling no pain." In addition, she minimized the accident, denied fault, and denied that she had been charged with a driving infraction. The November 5, 2004, DUI accident occurred while the legal resolution of the April 25, 2004, DUI was still pending. Respondent's judgment and veracity are subject to serious question. Respondent pled nolo contendere to a reduced charge of reckless driving on the April 25, 2004 DUI. On the November 25, 2004 DUI, she pled nolo contendere. The court found her guilty of DUI. She was sentenced to a treatment program, served 25 days in jail, paid $732.50 in fines and costs, and attended a DUI and Victim Impact Class. Nothing offered by Respondent as mitigating her behavior is accepted as credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, John L. Winn, Commissioner of Education, issue a final order finding that: Count 1 be dismissed; Respondent be found guilty of Counts 2 and 3; and Respondent's Florida Professional Educator's Certificate be placed on probation for 24 months, during which time she will be subject to rehabilitative conditions, as determined appropriate by the EPC. DONE AND ENTERED this 13th day of February, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 13th day of February, 2008. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Edward Gay, Esquire 1516 East Concord Street Orlando, Florida 32803 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012
The Issue Whether Respondent's intended award of a contract to Intervenor, pursuant to Invitation to Negotiate 024-12 (ITN), is contrary to Respondent's governing statutes, Respondent's rules and policies, or the specifications of the ITN?
Findings Of Fact Petitioner is a state agency authorized to enter into contracts for commodities and services subject to the procurement requirements of section 287.057, Florida Statutes [2011].1/ On April 17, 2012, the Department released the ITN which sought proposals to provide an ADLTS. The Department received and evaluated responses to the ITN from three vendors, including MorphoTrust and STS. On May 15, 2012, the Department issued Addendum 1 to the ITN, which answered questions vendors submitted regarding the ITN and replaced pages 31, 39, and 40 of the ITN. After completion of the first stage of [the] process of contractor selection where the Department evaluated the Statement of Qualification and Services Offered (SQSO) submitted by the vendors, the Department released the results of the initial evaluation process and proceeded to enter into negotiations with MorphoTrust and STS. The Department conducted ITN negotiation meetings with the representatives of MorphoTrust on July 10, 2012, and the representatives of STS on July 12, 2012. On July 18, 2012, the Department issued Addendum 2 to the ITN, which replaced pages 16, 23, 40, and 42. On July 26, 2012, the Department issued further instructions to MorphoTrust and STS, including a request for their [BAFO]. At this time, the Department issued Addendum 3 to the ITN, which replaced pages 15, 40 and 42. On July 31, [2012], the Department issued Addendum 4 to the ITN, which replaced page 16 of the ITN. MorphoTrust did not protest the terms, conditions, and specifications contained in the ITN, including any provisions governing the methods for ranking bids, proposals, or replies, awarding contracts, reserving rights of further negotiation, or modifying or amending any contract within 72 hours of the issuance of the ITN or any addendums thereto. On August 10, 2012, the evaluation team held a public meeting to evaluate the BAFOs submitted by MorphoTrust and STS. On August 13, 2012, the Department issued its intent to award the ADLTS contract to STS pursuant to the ITN. On August 16, 2012, MorphoTrust submitted its notice of intent to protest the intent to award the ADLTS contract to STS. On August 27, 2012, MorphoTrust filed its Formal Written Protest and Petition for Administrative Hearing. Section 1.1 of the ITN provides as follows: The Department of Highway Safety and Motor Vehicles, hereinafter called the Department, requests written proposals be submitted for an [ADLTS], which is to be provided at no cost to the Department. The [DHSMV] manages Florida's driver licensing program. Florida law requires a first-time driver to pass knowledge and skills exams prior to issuance of a driver license. The Department seeks to improve the integrity and efficiency of its licensing system by selecting a Contractor to provide a Driver License Testing System for use in State Driver License Offices, Tax Collector Offices and by Third-Party Test Administrators. Section 3.1 of the ITN provides as follows: The [DHSMV] manages Florida's driver licensing program. Florida law requires a first-time driver to pass knowledge and skills exams prior to issuance of a driver license. The knowledge and skills exams are designed to protect the public from hazards posed by unqualified motor vehicle operators. There are two (2) basic types of licenses--operator (Class E) and commercial (Classes A, B, and C). In Florida, Class E driver licenses are issued to drivers operating vehicles less than 26,001 pounds. Applicants must pass two (2) knowledge exams--road signs and road rules in order to obtain a learner's permit and must pass a driving skills exam to become fully licensed. The Department uses an aging web-based automated testing system for the administration of both Class E and commercial driver license knowledge exams in its fifty four (54) State Driver License Offices. In addition, one hundred and fifty six (156) county Tax Collector Offices in fifty two (52) counties also use the Department's automated testing system. Skills exams administered by State and Tax Collector Examiners are documented by hand, with pass/fail scores manually determined and entered into the driver license issuance system. In addition, six (6) Third-Party Contractors administer Class E knowledge exams online. The Department maintains the test databank and has established procedures for Third-Party Administrators to retrieve randomly generated test questions per applicant via web service. Currently, all operator skills exams are administered through State or Tax Collector Offices, with the exception of any teenager who completes a driver education program through their local high school. Driver education graduates are not required to complete additional skills exams. Driver education is currently offered in approximately fifty (50) of the sixty seven (67) school districts and a few private high schools. The majority of Commercial Driver License (CDL) skills exams are administered by third-parties, with less than ten percent (10%) of CDL skills exams administered by State Examiners. Over the next several years, we anticipate the following changes to our business environment. By 2015, all but three (3) of the sixty seven (67) counties will receive driver license services via the Tax Collectors. The Department will maintain driver license offices only in Broward, Miami-Dade, and Volusia counties; approximately twenty-six percent (26%) of all driver license transactions are conducted in these three (3) counties. More third-parties will offer Class E knowledge exams online. DHSMV started this program in July 2011. Seven (7) providers offer exams online now, but several others have applied. Some third-parties will offer Class E knowledge exams in a proctored setting. This option has been on the table since July 2011 and one vendor currently offers proctored exams. DHSMV will provide an opportunity for third-parties to administer Class E driving skills exams. The Department has delayed implementation of this opportunity until the conclusion of this ITN. DHSMV will expect third-parties administering Class E driving skills exams to use the system sought here, at their own expense. The Department will encourage Third- party administrators of CDL driving skills exams to use the system sought here, at their own expense. While we do not expect to mandate the use of this system for existing CDL Third-party administrations, there is a possibility that federal mandates may eventually recommend and/or require it. Section 3.2 of the ITN provides as follows: The Department seeks to improve the integrity and efficiency of its licensing system by selecting a Contractor to provide a NO-COST SOLUTION to the Department for a driver license testing system for use in State Driver License Offices, Tax Collector Offices and by Third-Party Test Administrators. This would include the system, web application and system maintenance, at no-cost to the Department. Third Party Administrators must be provided a consistent methodology for accessing and consuming the web-based tests questions and answers from the Awarded Contractor. The system must consist of: A web-based application for the administration of Class A, B, C, and E driver license knowledge exams in driver license and Tax Collector Offices. The Prospective Contractor must agree to provide this at no cost to the Department. A web-based application for the administration of Class E driver license road signs and road rules exams by third-parties. This system must also be accessible by Driver Education Licensing and Assistance Program (DELAP) administrators at no cost to the School Districts or the Department. A knowledge bank of at least five-hundred (500) questions for Class E road signs and road rules, plus CDL knowledge exam questions meeting American Association of Motor Vehicle Administrators (AAMVA) specifications. This must be provided at no-cost to the Department. A tablet-based solution for the administration of Class E driver license skills exams. Bonus points will be given to Prospective Contractors who provide this solution at no cost to the State for use by State and Tax Collector Offices. All Third-Party Administrators of Class E driver license skills exams will be required to adopt this solution. Third-Party Administrators can be charged for this solution. A tablet-based solution for the administration of Class A, B and C driver license skills exams. Third-party CDL skills exam administrators will not be mandated to adopt this solution at this time, but will be encouraged to do so. Section 3.3 of the ITN provides as follows: [ADLTS] is a centrally administered testing system that supports testing centers in State and Tax Collector Driver License Offices located throughout Florida. The purpose of the system is to perform driver license testing and other testing in a user-friendly Intranet and Extranet environment. The test information is stored centrally in Tallahassee offices of [DHSMV]. The system is a web-based system that is used to display and control all driver license testing, Administrative, Supervisor, Examiner and Extranet functions. The administrators of the ADLTS system control user accounts, testing office information, creating new exam categories, creating new questions, retiring questions and printing reports. In July 2011, the Department implemented a new third-party test administration program for Class E knowledge exams. The Department maintains the test databank and has established procedures for Third-Party Test Administrators to retrieve randomly generated test questions per applicant via web service. Any student who fails an exam is given the opportunity to retest with the Third Party Administrator two (2) additional times for each exam type (road rules and road signs). The Third Party Administrator is required to collect a statutory fee of ten dollars ($10.00) for each retest that is remitted to DHSMV electronically. Each exam is assigned a unique identifying number for tracking and auditing purposes. As part of this program, the opportunity exists for third-parties to administer the driver license knowledge exams in-person in a proctored setting. The Department does not currently provide a user interface application for third-party testers who administer exams on-line or in a proctored setting. Anyone wishing to offer these services must develop their own application to access the Department's web services. We have delayed implementation of this portion of the program until completion of this ITN, as we anticipate mandating that third-party administrators of Class E driving skills exams use the tablet testing system sought herein, at their own expense. All contractual language and current business rules for the Third Party Administration of Class E knowledge exams are available at http://www.flhsmv.gov/ddl/tpdlts.html. Approximately fifty (50) of the sixty seven (67) Florida school districts and several private high schools conduct both Class E knowledge and road tests for their enrolled driver education students through the Driver Education Licensing and Assistance Program (DELAP). The tests administered are the same as the Class E licensing tests given in driver license offices by Department and Tax Collector DL examiners. However, DELAP testers give the knowledge tests on paper forms generated by ADLTS, as they do not have direct access to the Department's electronic testing system. Commercial driver licensing (CDL) in-vehicle skills tests are conducted primarily by about two-hundred and thirty (230) third party businesses and agencies that have the necessary resources. Testing authority is granted by the Department through contracts. Some charge a fee for their services while others test only their own employees and do not. Test procedures are prescribed by federal regulation, following the AAMVA 2005 Model CDL Testing System. Section 4.1 of the ITN provides as follows: The Awarded Contractor will provide a web-based driver license testing system that will be used by Driver License Examiners in offices operated by the Department and Tax Collector Offices at no cost to the Department or County Tax Collectors. In addition, the Awarded Contractor must make available the same web-based solution for purchase by Third-Party Test Administrators. The testing system will include administrative and reporting functions. The awarded Contractor must also provide an option for purchase of a mobile tablet-based hardware/software solution for the administration of driving skills exams that will update the central testing database. The mobile solution will incorporate Global Positioning System (GPS) tracking technology for driving exam routes and time. The commercial driving skills exams must be generated in accordance with Federal Motor Carrier Safety Administration regulations and provide for subsequent updates upon release by AAMVA. Bonus points will be given to Prospective Contractors that offer this solution at no-cost to the Department. The Awarded Contractor will provide a minimum five-hundred (500) question databank of road signs and road rules Class E exam questions, plus CDL knowledge exam questions meeting American Association of Motor Vehicle Administrators (AAMVA) specifications that comports with Florida traffic and licensing laws. The Awarded Contractor may use the Department's existing bank of questions as the basis for the new databank. Currently, road signs and road rules exams are administered as two (2), twenty (20) question tests, but the Department will consider proposals to modify this testing model. For example, the Department would consider proposals for one (1) Class E knowledge exam that including both road rules and road signs questions and increases the total number of questions asked. Currently, approximately ninety five percent (95%) of applicants pass the road signs exam on their first attempt. Approximately forty eight percent (48%) of applicants pass the road rules exam on their first attempt. Please refer to the attached AAMVA Guidelines (Attachment VII) for knowledge and Skill Test Development. The Awarded Contractor is responsible for project planning, coordination, implementation, installation and maintenance, as applicable and must provide the name and qualification of the proposed project manager as part of the bid response. Any changes to the project manager after the ITN is awarded must be requested through the Department in writing. The Department will designate a project manager that will be the primary contact for the ITN. The Awarded Contractor will have access to personal identification data protected by the Florida and federal laws, including the Driver's Privacy Protection Act. The Prospective Contractor must describe in the bid response the security protocols related to employee background checks, training and monitoring. Section 4.2.8 of the ITN provides, in part, that "[a]t implementation, the system must provide replacements for the current test types which include[:] Class E General Knowledge, Road Signs . . . [and] Class E skill [testing]. " Section 4.2.13 of the ITN provides, in part, as follows: With the [BAFO], the Prospective Contractor must submit a price schedule to include a description of each item available for purchase and a purchase or use price. The pricing model may be per item, per license, or per use. While this will be a no-cost contract to the Department and Tax Collectors, price to third-parties will be considered during the evaluation process. An advertising plan must also be submitted by Prospective Contractors. (emphasis added). Section 8.1 of the ITN provides as follows: The Department will appoint an Evaluation Committee. The committee shall complete the evaluation of all valid proposals, in accordance with the criteria set forth in this section. Award will be to the highest scoring proposal, considering the technical proposal scoring and all costs for the five- year contract period, evaluated as described in Section 8.19 of this solicitation. (emphasis added). The reference in section 8.1 of the ITN to "Section 8.19" should be to "Section 8.9." The ITN does not contain a section 8.19. Section 8.9 of the ITN provides as follows: Price will be evaluated by the present value methodology required by Section 287.0572, Florida Statutes, and Rule 60A-1.063, Florida Administrative Code, to determine the lowest cost proposal. The lowest cost proposal will be awarded 15 points. Lowest total cost (LC) divided by proposal being considered (PC) times maximum points score (15) equals points awarded. Formula: LC/PC x 15=score. Section 1.5 of the ITN provides as follows, The Department has established certain mandatory requirements which must be included as part of any proposal. The use of the terms "shall," "must," or "will" (except to indicate simple futurity) in this solicitation indicates a mandatory requirement or condition. The words "should" or "may" in this solicitation indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature will not itself cause rejection of a proposal. Exception: This is a negotiation process. The DHSMV reserves the right to accept alternative means of accomplishing mandatory requirements, with reasonable assurance of satisfactory results, without addendum to this ITN. Such alternative(s) should be clearly identified by the Respondent firm in its proposal. The evaluation criteria set forth herein, and their relative weights, are also subject to modification in the negotiation process. Section 1.9 of the ITN provides, in part, that "[a]ny addenda or written answers supplied by the Department Procurement Officer to participating proposer's written questions become part of this solicitation." Section 1.34 of the ITN provides as follows: The contract resulting from this solicitation process shall consist solely of the purchase order issued by the Department to the successful proposer, this solicitation and any addenda thereto, and the proposal, including any license/use agreement submitted by the successful proposer as part of its proposal except to the extent of any conflict with Florida law or terms and conditions of the proposal. In the event of a conflict among any of the documents referenced herein, the following priority shall apply, with the language of each listed document governing the documents listed below it: The purchase order Any addenda to the solicitation The solicitation The awarded proposal including any agreements. Any agreements which include, but are not limited to installation, licensing, maintenance, software, etc. must be submitted with the proposal and agreed to by the Department during negotiations. Attachment I to the ITN is "State of Florida PUR 1000, General Contract Conditions (PUR 1000)." PUR 1000 is incorporated into the ITN by reference. PUR 1000, paragraph 4.(e), is entitled "Equitable Adjustment." This paragraph provides as follows: The Customer may, in its sole discretion, make an equitable adjustment in the Contract terms or pricing if pricing or availability of supply is affected by extreme and unforeseen volatility in the marketplace, that is, by circumstances that satisfy all the following criteria: (1) the volatility is due to causes wholly beyond the Contractor's control, (2) the volatility affects the marketplace or industry, not just the particular Contract source of supply, (3) the effect on pricing or availability of supply is substantial, and (4) the volatility so affects the Contractor that continued performance of the Contract would result in a substantial loss. Paragraph 1.(b) of PUR 1000 defines "Customer" to mean: [T]he State agency or other entity identified in a contract as the party to receive commodities or contractual services pursuant to a contract or that orders commodities or contractual services via purchase order or other contractual instrument from the Contractor under the Contract. The "Customer" may also be the "Buyer" as defined in the PUR 1001 if it meets the definition of both terms. Question 19, Addendum 1, and the answer related thereto read as follows: Question 19: "Bonus points will be given to Prospective Contractors that offer this solution at no-cost to the Department." Please define if "the Department" includes the Tax Collectors. If not, may the mobile skills test solution be sold to the Tax Collectors as well as the Third-Party Administrators? Answer to Question 19: Bonus points may be given up to a maximum amount of fifteen (15) points. The maximum amount of bonus points will be given if the mobile skills test solution is provided to both the Department and its Tax Collector agents at no cost. A lesser amount of points will be given if the solution is provided to the Department at no cost, and no bonus points will be given if the solution is not provided at no-cost. Question 37 from Addendum 1, and the response thereto, provide as follows: Question 37: Where is the Supplemental Cost Sheet shown in the ITN? Answer to Question 37: Please ignore the Supplemental Cost Sheet. There is only a Price Proposal Form (Section 9.0). Please utilize additional space in a Word, Excel or PDF format for pricing structure, if needed. Please seem amended pages 39 and 40 attached to this addendum. Question 39 from Addendum 1, and the response thereto, provide as follows: Question 39: May the awarded contractor charge a standard user/license fee to each third party administrator for the knowledge test and perhaps the eventual tablet skills test? Answer to Question 39: Yes, the Awarded Contractor may charge a standard user/license fee to each Third Party Administrator. Question 82 from Addendum 1, and the response thereto, provide as follows: Question 82: In regards to the Pricing Proposal Form on page 42 of the ITN, can this form be modified to better present our pricing strategy to the State of Florida? Answer to Question 82: Yes, this form can be modified utilizing Word, Excel or PDF to format a proposed pricing structure. Addendum 2 added to Section 3.2, subsection 4, the underlined language as noted: A tablet-based solution for the administration of Class E driver license skills exams. Bonus points will be given to Prospective Contractors who provide this solution at no cost to the State for use by State and Tax Collector Offices. If the tablet-based solution has a cost to the State and Tax Collector Offices associated with it, the price from Section 9.0 "Price Proposal" shall be utilized. All Third-Party Administrators of Class E driver license skills exams will be required to adopt this solution. Third-Party Administrators can be charged for this solution. Addendum 2 amended Section 9.0, which sets forth the Price Proposal Form to read as follows: Tablet Cost, Per Tablet For Third Party Administrator A $ Annual Cost to Access System for Third Party Administrator, Per Administrator B $ Total Cost A+B=C $ Note: Price Proposal Scoring is only calculated from a per-unit cost. The quantities will vary, based on need. Addendum 3 established the final Price Proposal Form as follows: Initial Term Tablet Cost, Per Tablet for Third Party Administrator A $ Cost To Access System for Third Party Administrator B $ Additional Features C $ Initial Term Total Cost A+B+C=D $ Renewal Term Tablet Cost, Per Tablet for Third Party Administrator E $ Cost To Access System for Third Party Administrator, Per Test F $ Additional Features G $ Renewal Term Total Cost E+F+G=H $ Total Cost D+H=I $ Note: The quantities will vary based on need. Additional Features can include any startup fees, maintenance or system enhancements. Please use additional space, if needed, to expand on Additional Features. Addendum 4 removed from the ITN the requirement that the successful proposer supply a damages bond. Deletion of Damages Bond Requirement Section 2.5 of the ITN, labeled "DAMAGES BOND," as originally set forth provided as follows: The proposer shall supply to the Department with the performance bond a bond for the payment of any liquidated damages as may become due and payable to the Department arising hereunder, in the face amount of 5% of the total cost for the project. The bond must be renewed annually no later than fourteen (14) business days prior to the beginning of the next contract or renewal period (if renewed). For the second and subsequent contract and renewal periods, the renewal bond amount must equal or exceed five percent (5%) of the total price amount proposed for the corresponding contract or renewal period in the proposer's proposal. Soon after issuance of the ITN, companies that were considering submitting a proposal were given the opportunity to tender questions regarding the ITN to the Department. One of the questions submitted by MorphoTrust in response to the ITN states that "[g]iven the unique model that the state has requested in the ITN, would the state be willing to negotiate [an] alternative liquidated damage clause to better reflect the proposed solution?" The Department's response to the inquiry stated that this issue could "be discussed during the negotiation phase of the ITN process." Intervenor STS, in response to the ITN, also posed a question to the Department regarding the bond requirements. STS's question and the Department's response thereto provide as follows: Question: In regards to the bonds, what value/cost is the bond supposed to represent? Is this value the price that the State of Florida is required to pay to the contractor for the five year contract period? Or, is the value the total expense that the contractor has invested in the contract for the five year period? Response: The bonds must be in the amount [of] five percent (5%) of the total pricing structure proposed by the Prospective Contractor. As previously indicated, the Department, during the period July 9 through 12, 2012, met with representatives from MorphoTrust and STS to negotiate the proposal and view demonstrations. During the negotiation and demonstration sessions, representatives from MorphoTrust and STS informed the Department of their concerns about the apparent redundancy of the ITN requirement to have both a performance bond and a damages bond. According to MorphoTrust, the Department agreed to review the performance and damages bonding requirements. Addendum 2 was issued by the Department and this addendum, among other things, changed section 2.5, Damages Bond, of the ITN to read as follows: The proposer shall supply to the Department with the performance bond a bond for the payment of any liquidated damages as may become due and payable to the Department arising hereunder, in the face amount of five hundred thousand dollars ($500,000.00). The bond must be renewed annually, no later than fourteen (14) business days prior to the beginning of the next contract or renewal period (if renewed). For the second and subsequent contract and renewal periods, the renewal bond amount must equal five hundred thousand dollars ($500,000.00). On July 24, 2012, Jim Sodero, on behalf of STS, sent an email to Jon Kosberg to reiterate his concerns about the bonding requirements. The email provides as follows: Hi Jon, Thank you very much for the opportunity to bid and demonstrate our product. We have reviewed your request for a BAFO, and are currently exploring our options. Unfortunately, as we had mentioned during our demonstration, it is very likely your bond requirements prevent us from proceeding further. We are once again looking for a bond company that will cover this 'no cost' proposal, but are having great difficulty. At the meeting you thought you might be able to offer the names of some companies that have done this in the past. We would very much appreciate any information you can provide. Again, the bonding company's main concerns are that the State is not accepting a risk correspondent to the value of the bond. There is some risk no question, but it is STS that will assume the greater risk of investing over 2 million dollars in equipment and manpower with the hope of financial recovery over a long term contract. They feel, and we have to agree, that the hardware investment itself should guarantee that this is a contract that we will not walk away from and will service to the best of our abilities. Another way of looking at this is to remember that STS proposed a "free off-the-shelf" system with a proven track record that has provided millions and millions of exams in many jurisdictions over a period of 18 years. Again, I don't wish to minimize that the State has some risk, but asking for a bond on a proven product with an impeccable record would be like telling Microsoft that you wish a multi-million dollar bond to cover any potential risk of losing information in Microsoft Word, after they have given you the product at no cost. Solutions Thru Software is extremely interested in this contract and at the prospect of working with the State of Florida, however at present we have a better chance than not of being forced to withdraw. This would be a terrible situation as Solutions Thru Software is the leading vendor in solutions such as this and has been doing so longer than any other company in the market. One possible compromise may be to add Florida as a named beneficiary on our insurance policy as an alternative to a Bond. Solutions Thru Software carries 2 million dollars in Liability, and we have had other customers accept this as a means of protecting their risk in the past. Any assistance you can provide would be greatly appreciated. Of course time is of the essence. If we cannot find a bonding company by your August 1st deadline, then STS will be forced to submit a No-Bid in response to the BAFO. Sincerely, Jim The following day, on July 25, 2012, Mr. Sodero sent Mr. Kosberg another email regarding the bonding requirement. This email provides, in part, as follows: The performance bond and damages bond continue to be issues. The companies that we are dealing with still believe this is a highly irregular request. To provide a quote from their latest email, "I'm not sure the Damages Bond will be something they'll want to consider. It's an odd request." We are proceeding with the application at any rate, and if you can provide other companies, we will proceed with the paper work for them as well. Addendum 3 issued by the Department, among other things, modified the Calendar of Events section of the ITN. The original ITN provided that "best and final offers" were due no later than 2:30 p.m. (EST), on August 1, 2012. Addendum 3 changed the due date for "best and final offers" to August 3, 2012. On July 27, 2012, STS sent additional emails to the Department regarding the bonding requirements. The first email was sent at 8:15 a.m. (CST), by Jim Sodero to Jon Kosberg. The email states as follows: Hi Jon, I just thought I would let you know that I am currently writing up a formal request to have the bond request eliminated or modified as per section 2.7. . . If there are any requirements which restrict competition, the respondent may request, in writing, to the Procurement Officer identified in Section 1.3 that the specifications be changed . . . The matter is not as to whether we can get a bond as it is looking like we will be able to. The problem is that we only have slightly over one week from the time the bond value was set, until the a [sic] guarantee of such bond must be provided with the BAFO. We have also had our lawyers review section 5.6 5.6 WITHDRAWAL OF SQSO: Withdrawal of SQSO's may be requested within 72 hours (excluding State holidays, Saturdays, and Sundays) after the opening time and date. Requests received in accordance with this provision may be granted by the Department upon proof of the impossibility to perform based upon an obvious error. They identified two problems with this section. The first is that it is not clear as to whether the 72 hours if [sic] from the opening of the original bid, or the BAFO. The second is that they do not believe there is sufficient guarantee that an obvious error can be demonstrated given that we have been discussing this bond limitation since the onset of preparing this bid. Please give me a call if you wish to discuss this prior to me sending out our formal request. Jim A few hours later, Jim Sodero, at 11:14 a.m.(CST), sent a second email to Jon Kosberg which states as follows: Mr. Kosberg, Re: Request for removal of Conditions that Restrict Competition As per section 2.7, Solutions Thru Software wishes to identify a requirement which restricts our ability to compete in this RFP process. This is a concern that was identified when submitting our submission for the original RFP. Some clarification was provided by the State through the BAFO request, but unfortunately, as it stands, this concern still prevents Florida from receiving a full complement of competitive bids for this RFP. The issue specifically concerns the bond requirements stated in sections 2.3 Proposal Bond, 2.4 Performance Bond, and 2.5 Damages Bond. Although bond requirements are common in many government contracts, they are not common in the industry of knowledge testing. This is due to the relatively low inherent risk assumed by the State. As the longest standing company in the business, Solutions Thru Software has not been required to obtain any bonds in our 18 years of impeccable service to the industry. As a "zero cost bid," the risk to the State of Florida is even less than is typical for the industry. For Florida, it is Solutions Thru Software who will finance and install literally millions of dollars in hardware and software for the purpose of knowledge testing for the State. The only risk to Florida is the potential of delay of service due to infrastructure failure, but no actual loss of service would exist as history has shown that the designed redundant system recovery is both seldom used and results in very short outages. Our request for a RFP/BAFO modification is based on: With 18 years of bond free service, it cannot be expected that STS would have a 'standing' bond in place or a history of successful bond completion. As the total value of the bonds was not known until the release of the BAFO, it was impossible to be pre-approved for the bonds in question, leaving only 9 days to apply and be approved. The bonding companies we have spoken with have said that this timeline for a new bond is not possible. The bonding companies have indicated that there is insufficient information on the surrender requirements for the bonds. In particular, they are confused as to the differences between the performance bond and the damages bond and why both must be renewed annually for the duration of the contract. In their opinion, the performance bond should cover the period between the onset of the contract and the final sign off by the state that Solutions Thru Software has installed an operational system that satisfies the terms of the contract. At this point, the performance bond should be released and the damages bond put in place and renewed annually to protect the State for potential losses during operation of the system. If both bonds must remain in place, then they believe the State must clearly identify the types of problems that will result in the surrendering of each bond. Although verbal assurance has been given that Solutions Thru Software 'should' have no difficulty in obtaining the performance bond, the bonding companies are more hesitant regarding the damages bond without further clarification being provided by the State. Given this situation Solutions Thru Software is very concerned with the risk of submitting the bid bond without receiving written assurance that the bid bond will be returned if the bonding companies are unwilling to accept the surrender conditions of the State. The State has recommend[ed] that we continue with the bid process with plans of using the "72 hour" clause to pull our bid if necessary, but upon review of this clause, it is still unclear if failure to secure a bond can be demonstrated as an obvious error given that we have already pointed out this shortcoming through the RFP and BAFO process. It is also very unlikely that 72 hours will make the difference on the bond approval, as the first thing that they need is clarification from the State. It is our opinion that the above points demonstrate an uneven playing field. Bonds have not been a standard requirement in this industry in the past and it cannot be expected that all companies will have 'standing' bonds in place. The only companies that will be able to respond to this RFP/BAFO will be companies that have other services that have required bonding, or possibly may have a track record that has warranted a need for bonding. Solutions Thru Software respectfully request that the State of Florida takes one of the following actions: Remove the bonding requirements Modify the requirements to state that the performance bond will ensure an operational system meeting requirements and that it will be returned upon State sign- off. And, modify the requirement of the damages bond to be annually renewable bonds to cover the period of operation. And, extend the requirement date for submission of the performance bond and damages bond and provide in writing that failure to obtain these bonds will not result in forfeiture of the bid bond. Thank you very much for your consideration of this request. Jim At approximately 11:30 a.m. (CST), on July 27, 2012, Jon Kosberg sent an email alerting prospective bidders to the fact that Addendum 3 had been posted the previous day. Mr. Sodero, in response to Mr. Kosberg's email, sent his third email of the day to Mr. Kosberg at 2:56 p.m. (CST), and stated therein the following: Thanks Jon, I appreciate you forwarding Addendum 3 to us. However, our request for re-evaluation of the bond requirements still stands on the grounds that it creates an uneven playing field. It does not address the concerns that our bonding companies have expressed to us. As well, it only allows companies that have other products that typically require bonds to be able to make the proposed deadline. That is, companies that have a precedent for this type of request or, they have substantial financial backing (i.e. millions if not billions of dollars) making their request to a bonding company much more palatable. Jim On Tuesday, July 31, 2012, at 3:19 p.m. (EST), Mr. Kosberg sent an email to MorphoTrust and STS advising that Addendum 4 had been posted. This addendum deleted the requirement for a damages bond as previously required by section 2.5 of the ITN. Less than an hour and a half after the posting of Addendum 4, Ms. Openshaw, vice-president of State and Local Sales for MorphoTrust, was speculating that the Department deleted the damages bonding requirement to assist STS. Specifically, Ms. Openshaw stated, "I wonder if this addendum is because STS said they needed relief on some of the 'bondage' or they would not bid." On Wednesday, August 1, 2012, Mr. Sodero emailed Mr. Kosberg regarding Addendum 4 and stated therein the following: Hi Jon, we are still at the office getting this proposal out the door, but I wanted to send you the latest from our bonding company, as we will have to remain diligent on this to meet the time line. We appreciate the changes you have made, however, they are still not meeting the main concerns of the bonding company. In explaining why the Department decided to delete the requirement for a damages bond, Mr. Kosberg indicated that the Department "decided to look [at] what would be in the best interests of the Department," and through this process determined that, [B]ecause of the unique model of this no cost solution and both vendors telling us that, you know, bonding may be redundant, we realized that we can achieve what we need in our requirement for bonding by holding strong to the performance bond and the proposal bond, while at the same point . . . remov[ing] the damages bond because of the redundancy, and we realized by removing that damages bond, we may ultimately realize better pricing for the third party administrator, because ultimately every requirement that we put in this ITN gets pawned off, you know, the price, to whoever may be paying for this particular type of service or item. (Transcript pg. 797) Petitioner suggested that section 2.7 of the ITN precluded the Department from considering and acting upon STS's request to change the bonding requirements. Section 2.7 of the ITN provides, in part, that if a proposer believes that there are requirements in the ITN that restrict competition, the proposer may request in writing that the requirements be changed by the Department and that any "requests for changes to the solicitation, must be received in writing by the Issuing Officer no later than the date and time specified in the Calendar of Events (May 1, 2012, at 4:00 p.m. Eastern Time)." Section 2.7 also states that "[a] respondent's failure to request changes by the date described above, shall be considered to constitute respondent's acceptance of Department's specifications." As an initial matter, it is important to note that both STS and MorphoTrust voiced concerns about the ITN's bonding requirements well after May 1, 2012. While it is true that section 2.7 of the ITN directs that requests for changes to the solicitation must be received by the Department by some date certain, the requirements of section 2.7 must be read in conjunction with the other provisions of the ITN. Section 1.3 of the ITN provides, in part, that "[t]he Procurement Officer, acting on behalf of the Department, is the sole point of contact outside of official conferences and meetings with the agency's team, with regard to all procurement matters relating to this solicitation, from the date of release of the solicitation until the Department's Notice of Intended Award or Decision is posted." Also, Addendum 1 to the ITN makes it clear that the Department reserves the right to post addendums to the ITN as necessary. In reading these provisions together, it is clear that the ITN process is one where proposers are allowed to voice concerns about "all procurement matters" relating to the solicitation during the window of time between the date of release of the solicitation and the posting of the Department's Notice of Intended Award or Decision. The Department, in accordance with section 2.7, is always free to inform a respondent, as appropriate, that their failure to adhere to the established timeline constitutes "acceptance of the Department's specifications." It cannot, however, be said that section 2.7 precludes, as a matter of law, the Department from deleting provisions of an ITN subsequent to the date by which proposers are to submit questions and recommended changes. Generally, the Department is free to make changes to the provisions of an ITN prior to the submission of BAFOs as long as the changes do not favor, or create the opportunity for favoritism of, one bidder over another. See generally City of Miami Beach v. Klinger, 179 So. 2d 864 (Fla. 3d DCA 1965). The Department credibly explained its rationale for deleting the damages bond requirement, and there was no contrary credible evidence offered by MorphoTrust demonstrating that the Department's stated reasons are pretextural. Petitioner's argument that the Department impermissibly favored STS by deleting from the ITN the damages bond requirement is not supported by credible competent evidence. The Relevant ITN Specifications are not Ambiguous Petitioner alleges that "the Department's proposed award is contrary to the statutory requirements for a competitive solicitation" and is "contrary to the bid documents" because "[t]he only two vendors who submitted BAFOs interpreted the required Price Proposal Form completely differently." In furtherance of the allegation, Petitioner contends that the proposers were confused throughout the procurement process about how they were going to "recoup the costs associated with the no cost contract" and that this confusion resulted in the proposers developing divergent assumptions and proposals that prevented the Department from being able to conduct "a comparable analysis of the proposals." Petitioner's allegations are without merit. As an initial matter, Petitioner's assertion, that its proposal was "completely different" from that of STS because of confusion about the specifications of the ITN, is a challenge to the specifications of the ITN. This challenge to the allegedly ambiguities in the specifications is untimely given that Petitioner failed to initiate a written protest to the alleged ambiguous specifications within 72 hours of posting of the solicitation. § 120.57(3)(b), Fla. Stat.; Capeletti Bros., Inc. v. Dep't. of Transp., 499 So. 2d 855 (Fla. 1st DCA 1986). Nevertheless, even if the merits of Petitioner's argument are considered, the plain language of the bid specifications do not reasonably support Petitioner's claim of ambiguity. It is well established that bid specifications "must be sufficiently specific to permit bidders to bid upon the same product, and factors thereof which are of such importance as to be given special consideration in determining the successful bidder should be so covered in the specifications as to detail to all bidders the standards anticipated, the tests the product must meet, and all factors upon which the product will be judged and the award made." Robinson's, Inc. v. Short, 146 So. 2d 108, 113 (Fla. 1st DCA 1962). In a competitive bid process, one of the main objectives is to be able to "make an exact comparison of bids." Clark v. Melson, 82 Fla. 230, 89 So. 495 (1921). In support of its contention that the bid specifications were confusing, Petitioner cites to the Price Proposal Form as reflected in Addendum 3. According to Petitioner, the portion of the Price Proposal Form that addresses the "cost to access system" reasonably caused Petitioner to believe that "the system" to which the form referred was the "knowledge testing solution" only, and thus, resulted in Petitioner not including in its proposal a fee for skills testing. This conclusion by Petitioner is not reasonable given that throughout the ITN, the Department made it clear that "the system" included the hardware, software, and other issues associated with the administration of driving skills exams. Section 1.1 of the ITN indicates that the Department is looking "for an [ADLTS], which is to be provided at no cost to the Department." In section 3.1 of the ITN, the Department provides "background" information about the current test administration system in Florida for both knowledge and skills examinations for Class E operators. Specifically, as to skills examinations, section 3.1 notes that applicants must pass both a knowledge and skills exam, that skills examinations currently "administered by State and Tax Collector Examiners are documented by hand, with pass/fail scores manually determined and entered into the driver license issuance system." Section 3.1 also notes that "currently, all operator skills exams are administered through State or Tax Collector Offices, with the exception of any teenager who completes a driver education program through their local high school." Section 3.1 of the ITN further notes that over the next several years, the Department "will provide an opportunity for third- parties to administer Class E driving skills exams" and that the Department "will expect third-parties administering Class E driving skills exams to use the [ADLTS] system sought [by the ITN] at their own expense." Section 3.1 clearly communicates a desire by the Department to include within the scope of the ITN issues related to skills testing. This conclusion is further supported by other provisions of the ITN. Section 3.2 of the ITN provides that the Department seeks a testing system that must include among other things "[a] tablet-based solution for the administration of Class E driver license skills exams." Section 3.3 of the ITN provides that the Department anticipates "mandating that third-party administrators of Class E driving skills exams use the tablet system sought [by the ITN]." Section 4.1 of the ITN provides that "the awarded Contractor must also provide an option for purchase of a mobile tablet-based hardware/software solution for the administration of driving skills exams that will update the central testing database." Section 4.2.8 of the ITN makes it clear that when implemented, "the system" must provide "replacements for the current test types, including Class E skills testing." While it may be true that Petitioner was confused, it cannot reasonably be said that the source of Petitioner's confusion was the specifications of the ITN. Contrary to Petitioner's allegation, the evidence establishes that STS's interpretation of the Price Proposal Form was consistent with the specifications of the ITN and that the specifications of the ITN were sufficiently clear so as to allow MorphoTrust and STS to bid on the same product. A more likely source of Petitioner's confusion about the scope of the ITN can be found in Petitioner's general unfamiliarity with the concept of combining knowledge and skill testing as part of a single solution. According to Petitioner, "[n]o jurisdiction in the United States has previously issued a competitive procurement requiring a solution combining knowledge tests and skills tests as part of a no cost solution." Whether this is a true statement or not, it is evident that the lens through which Petitioner viewed the ITN was one that focused on knowledge testing as being the only source for generating revenue from test fees. By contrast, STS, through its operations in Canada, has merged knowledge and skill testing as part of a no cost solution and saw the opportunity to do so in Florida based on the unambiguous specifications of the ITN. Petitioner's next basis for challenging the proposed award is that "the Department's proposed contract award is not based on a reasonable comparison of the anticipated overall cost of the two vendors' proposals and the proposed contract award fails to reflect a determination of best value to the state." Section 8.1 of the ITN provides that the "[a]ward will be to the highest scoring proposal, considering the technical proposal scoring and all costs for the five-year contract period." Section 8.9 of the ITN references the methodology for evaluation of costs for the five-year contract period and provides that the lowest cost proposal would be awarded 15 points. Based on the formula, Petitioner was awarded 2.5 cost proposal points, and STS was awarded 15 cost proposal points. When totaling all scoring categories, MorphoTrust received 168.1 points, and STS received 191.6 points. The Department's consideration of the technical and cost aspects of the respective proposals resulted in the proper determination of the "best value" to the State as required by section 287.012(4). As for the issue that the proposed contract award is not based on a reasonable comparison of the anticipated overall cost of the two vendors' proposals, Petitioner specifically alleges that the cost scoring system was flawed because the Department "did not recognize or incorporate the very significant pricing assumptions and cost differences of the vendors in evaluating the ITN responses." This allegation is not supported by credible competent evidence. Any pricing assumptions made by the proposers to the ITN should have as its foundation the information found in the ITN. Sections 3.1, 3.2, 3.3, and 3.6 of the ITN are particularly instructive to proposers when developing their "assumptions" for purposes of creating a cost proposal. These sections of the ITN describe the Department's current state of affairs and where the Department desires to be in the future with respect to driver license testing. In particular, Section 3.6 provides very specific information about the number of driver license examinations administered by type and how test volumes are likely to be impacted by future events. MorphoTrust's written price proposal details an $8,000.00 per entity, one-time tablet set-up fee, if there is a "minimum of 40 entities." In evaluating this assumption, it was noted by the Department that MorphoTrust's proposal is silent regarding what the fee would be if there are less than 40 entities. By comparison, STS's proposal reflects a per tablet cost of $2,219.50 regardless of the number of entities purchasing tablets. A MorphoTrust tablet costs nearly four times as much as a tablet offered by STS. MorphoTrust in its price proposal identified "knowledge testing tiers" where the price would be $10.00 per test for testing volumes between 100,000 to 149,999; $7.50 per test for testing volumes between 150,000 to 199,999; and $4.95 per test for testing volumes in excess of 200,000. By comparison, STS charges $4.42 per test for knowledge and skills tests respectively, with the price for each test decreasing if annual testing volumes exceed 500,000 tests per fiscal year. Each of these assumptions, as well as others, was considered by the Department when evaluating the respective price proposals. MorphoTrust argues that the Department's evaluation of STS's proposal failed to consider the fact that STS intends to charge $4.42 for each of the two portions of the knowledge test as opposed to a single charge of $4.42 for the entire knowledge test. In calculating the total cost of STS's proposal, the Department determined the cost to be $6,447.84 using a single knowledge test fee of $4.42. If STS's knowledge test fee is doubled to $8.84 to reflect the cost for charging for both portions of the knowledge test, then the total cost of the proposal, using the department's formula, increases to $6,452.00 dollars. The amount of $6,452.00, when compared to MorphoTrust's total cost of $38,659.90, is still the better value for the Department, third-party administrators, tax collectors, and ultimately the public. To the extent that MorphoTrust suggests that its pricing structure would have been different had it known that the ITN allowed for a per test fee for skills testing, this suggestion is without merit as explained elsewhere herein. Petitioner did not Prove STS's Proposal is Non-Responsive MorphoTrust alleges that STS's proposal should be rejected as non-responsive for three reasons. First, MorphoTrust contends that STS's BAFO proposal does not meet the mandatory performance bond requirements of the ITN. Section 2.4 of the ITN provides, in part, that "[t]he successful proposer shall supply no later than '14 calendar days of award,' a Performance Bond issued by an insurance company licensed by the State of Florida Department of Insurance." Because section 2.4 of the ITN uses the word "shall" in setting forth the performance bond requirement, this requirement is considered a mandatory provision of the ITN, and the proposal must provide an explanation of how the requirement will be satisfied. Section 1.5 of the ITN provides that the Department "reserves the right to accept alternative means of accomplishing mandatory requirements, with reasonable assurance of satisfactory results, without addendum to this ITN." STS proposed two options in its BAFO to satisfy the performance bond requirement. The two options provide as follows: Performance Bond Costs Option 1. Bonding companies have given us an estimate of the expected yearly cost of the bond, however we would like to have additional conversations with the State on surrender conditions. Solutions Thru Software will only charge the exact cost of the bond, without markup or handling fees. The following would be a one-time fee for the five year contract. $TBD (estimated at 3%) Performance Bond Costs Option 2. If the state prefers, the bond cost can be added onto the per test fee for an estimated additional. $TBD (estimated at 3%) On August 10, 2012, after submission of BAFOs by the proposers, Mr. Kosberg sent an email to Mr. Sodero at STS and stated therein the following: Jim, Per our discussion I am clarifying the following: The option related to the Performance Bond that will be suitable for the State would be to add the cost onto the per test fee, which you identified as an additional 3%, which totals $0.13 per test, bringing the per test fee from $4.29 to $4.42 per test. Mr. Sodero, in response to the inquiry from Mr. Kosberg, confirmed that the "13 cents per test is a firm price to cover all bond costs . . . [and that STS] will honor the 13 cents per test cost and assume any financial risk should cost go beyond this point." In considering STS's proffer with respect to the performance bond requirement, it is clear that in its BAFO response, and its clarifying statement related thereto, that STS affirmatively represented that it was prepared to comply with the performance bond requirement. Simply stated, STS's proposal as to the performance bond requirement is responsive. As the second ground for rejection of STS's BAFO as being non-responsive, MorphoTrust contends that STS impermissibly submitted a "post-scoring amendment" to its pricing proposal in violation of the specifications of the ITN. The alleged "post scoring amendment" occurred when STS clarified the extent to which the three-percent bond premium would impact its cost proposal. Section 1.48 of the ITN provides that "[t]he Department reserves the right to contact any and all proposers for the clarification of responses to th[e] solicitation in accordance with the attached Form PUR 1001, Paragraph 15." Form PUR 1001, paragraph 15, provides that "[b]efore award, the [Department] reserves the right to seek clarifications or request any information deemed necessary for proper evaluation of submissions from all respondents deemed eligible for Contract award." Contrary to the allegations, STS did not amend its BAFO in an improper manner as suggested by Petitioner, but, instead, merely clarified its BAFO in response to an inquiry from the Department as authorized by the ITN. In its third ground for rejection of STS's BAFO as being non-responsive, MorphoTrust contends that "[t]he STS proposal should . . . be rejected because it modified the required Price Proposal Form to include a per test cost to be charged for 'skills testing.'" This ground, like the others, is also without merit. Section 1.44 of the ITN provides, in part, as follows: "The proposal forms furnished must be submitted with your proposal. Forms to be filled out in pen or ink or typewritten with no alterations, changes or amendments made within." (emphasis added). As previously noted, section 1.5 of the ITN provides that "[t]he use of the terms 'shall,' 'must,' or 'will' (except to indicate simple futurity) in this solicitation indicates a mandatory requirement or condition." Consistent with section 1.5, the only relevant portion of section 1.44 that is mandatory is the requirement that "proposal forms must be submitted with [the] proposal" because this is the only portion of section 1.44 that uses the mandatory term "must." As for the portion of section 1.44 that deals with the substance of the form, it is only noted therein that the pricing forms are "to be" filled out a certain way. "To be" is not identified in the ITN as imposing a mandatory requirement or condition. Additionally, even if the original ITN can be read as requiring that the pricing form not be altered, changed, or amended, the Department, in the answers to questions 37 and 82 in Addendum 1 to the ITN, authorized changes, amendments, and alterations to the pricing forms. In response to question 37, the Department stated that "[t]here is only a Price Proposal Form [so] [p]lease utilize additional space in a Word, Excel or PDF format for pricing structure, if needed." Question 82 asks, "[i]n regards to the Pricing Proposal Form on page 42 of the ITN, can this form be modified to better present our pricing strategy to the State of Florida?" The Department, in reply to Question 82, responded "[y]es, this form can be modified utilizing Word, Excel or PDF to format a proposed pricing structure." Petitioner failed to present credible evidence demonstrating that STS altered the Price Proposal Form in a manner inconsistent with the requirements of the ITN.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Highway Safety and Motor Vehicles, enter a final order adopting the Findings of Fact and Conclusions of Law set forth herein and dismissing MorphoTrust's protest as untimely, as indicated, and otherwise unsubstantiated.3/ DONE AND ENTERED this 7th day of December, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2012.
The Issue The issues presented are whether the Department has the authority to approve Petitioner's distance-learning driver improvement course, whether Petitioner's delivery system is effective, and whether Petitioner's method of delivery complies with statutory and rule requirements.
Findings Of Fact Petitioner is a provider of basic driver improvement courses in a number of states, including Florida, Texas, and New York. These courses use the traditional classroom setting. Petitioner also provides its course via distance learning in California and Texas. That course is conducted using video and computer technology. The Texas course has been evaluated three times by the Texas education agency, which has determined that the delivery system is effective in achieving behavioral and attitudinal changes in drivers taking the course. In 1996 Petitioner's representatives met informally with the Department's representative, Milton Grosz, to discuss offering in Florida Petitioner's interactive video course which is the same course as Petitioner's already-approved basic driver improvement course. As a result of that meeting, Grosz, who heads the Department's review committee, researched the literature regarding the effectiveness of distance learning. His research revealed a growing body of literature supporting learning by interactive video but none in the field of driver improvement. Grosz noted that other providers would complain that the course's methodology does not work or that it offers the potential for cheating but the literature did not support such claims. Grosz recommended that the Department pilot test Petitioner's course in a limited geographic area. In 1997, Petitioner's representative in Tallahassee met with the Department's Director and explained that Petitioner proposed to introduce its distance-learning version of its course in Florida. After being encouraged to submit an application for approval, Petitioner did so on August 5, 1997. On August 20, 1997, Barbara Lauer, the Chief of the Department's Bureau of Driver Education and DUI Programs, wrote to Petitioner advising that the Department had decided to proceed with the development of interactive video methodology, limited to a single judicial circuit until the Department could pilot test that delivery system for effectiveness in Florida. That letter had been approved by the Director and the Assistant Director of the Department's Division of Driver's Licenses. Petitioner's proposal for Florida uses video and computer technology. The process begins when a person cited for certain non-criminal traffic infractions elects to attend a basic driver improvement course approved by the Department in lieu of a court appearance. A person choosing Petitioner's interactive video course would check out a laptop computer and four-hour video tape from a Blockbuster Video outlet after signing a contract. The contract provides that the student pay a fee, agree to the terms of the course, acknowledge that he or she will be subject to a validation process, acknowledge that he or she will be tested as to the content and must answer correctly 32 of the 40 questions in order to pass the course, and forfeit all money paid if he or she does not pass the course. Once the student agrees to the contractual terms, the student takes the video home, watches the video, and uses the laptop computer, linked to a data-base via modem, to answer questions generated by the computer based on the course content. The student must log into Petitioner's system several times during the course process. He or she is then subjected to a combination of verification and content questions including a final exam. The student also must answer unique identifying questions particular to the student taking the course which are intended to ensure that the person answering the questions via the computer is the student who registered for the course. The course contains situational learning segments where the student is encouraged to reflect on the driving situation covered. Throughout the course process the student is encouraged to use Petitioner's 1-800 number, manned by Florida-certified instructors 24 hours a day, should the student have a question about the course content or wish to discuss other driving situations. A different 1-800 number is provided for technical assistance 24 hours a day. Upon return of the equipment to the Blockbuster Video location, the student is informed as to whether he or she passed or failed the course. If the student passed, he or she is issued a certificate of completion from Petitioner's central office. If the student failed, he or she is given a phone number to call which results in the student being given a verbal quiz by a course instructor, who can then determine that the student has passed the course. Five to seven percent of students typically fail the course. Petitioner would establish a single Florida base of operations if the course were approved for use in this State. The address of each Blockbuster Video store where the course computer and materials are available would be registered with the State as a school. Petitioner's interactive video course would be available in many languages and would be offered in several versions for handicapped and hearing-impaired individuals. Thus, the course would be uniquely accessible to drivers whose handicaps may not be accommodated by places where the traditional classroom version of the course may be offered. The course would be available also for drivers whose work schedules or personal obligations do not allow them to take the basic driver improvement course when offered in a classroom setting. Several requests for additional information were made by the Department, and Petitioner responded to all. By letter dated July 6, 1998, the Department notified Petitioner that its application for course approval was complete and could be evaluated for content. The Department routinely reviews applications for driver improvement course approval by using a review committee. The committee determines whether the application meets the requirements of the administrative code (the Department's rules) and the statutes and determines whether the course curriculum should be approved for use in Florida. The review committee members are the only Department personnel who have actually reviewed the curriculum, have sat through the videotaped course, and have used the interactive computer. The review committee recommended that Petitioner's interactive video course be approved. Accordingly, the Department determined that the course content promotes driver safety, driver awareness, and accident avoidance techniques. In November 1998, the Director of the Department's Division of Driver's Licenses was contacted by a reporter regarding the use of Petitioner's interactive video course in a single county in Florida. After the article appeared, the Department's Executive Director received numerous letters from Petitioner's competitors. The Department has never before denied an application which received the approval of its review committee. However, by letter dated March 8, 1999, the Department advised Petitioner that its application for approval was denied for the reasons that the law does not contemplate approval of a basic driver improvement course conducted in a non-classroom setting although the law does not prohibit such approval, that the Department had never before approved such a course, and that the concept of independent study was not the best choice for effectuating behavioral and attitudinal changes. No one from the Department questioned its legal authority to approve Petitioner's interactive video course until Petitioner's competitors began contacting the Department. Even after those contacts, the Department did not raise any concern about its legal authority although it continued to correspond with Petitioner regarding other aspects of Petitioner's application. Only when the denial letter was issued did the Department advise Petitioner that it did not have authority to approve the course even though such approval was not prohibited. Petitioner provided to the Department as part of its application the effectiveness study performed for the State of Texas which had reviewed Petitioner's interactive video course three times, approving it on each occasion. That study concludes that the course is effective in changing driver behavior. The Department has historically accepted effectiveness studies done for other states. Further, the Department does not require the submission of an effectiveness study for approval of a course to be offered in a single judicial circuit. The Department determined that the course participation validation process was acceptable and does not challenge that process now. Jon Crumpacker, an expert in distance learning, has worked on distance learning projects for the Florida Departments of Corrections, Agriculture and Consumer Services, Education, Transportation, Management Services, Military Affairs, Juvenile Justice, and the Lottery, which have all embraced and used interactive technology similar to that proposed by Petitioner. He found Petitioner's technology to be effective in delivering course content and to be a particularly reliable form of interactive technology. He also concluded that Petitioner's technology is not "radical" as previously characterized by the Department. A delivery system or mechanism is how a particular course content is imparted to a student. There are a variety of systems used today, including traditional classroom, computer- assisted instruction, and virtual classrooms on the Internet. The contractual element of Petitioner's course motivates students to participate in the learning process, as does the testing component, particularly when compared with the traditional classroom delivery system of the basic driver improvement course which includes no testing component. Petitioner's delivery system is a true interactive system and is an effective delivery system, likely to cause changes in attitude and behavior.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Petitioner's application for approval of its interactive video course. DONE AND ENTERED this 28th day of October, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 28th day of October, 1999. COPIES FURNISHED: Charles J. Brantley, Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B439 Tallahassee, Florida 32399-5000 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B439 Tallahassee, Florida 32399-5000 Michael J. Alderman, Esquire Department of Highway Safety And Motor Vehicles Neil Kirkman Building, Room B439 Tallahassee, Florida 32399-5000 Mark K. Logan, Esquire Smith, Ballard & Logan, P.A. 403 East Park Avenue Tallahassee, Florida 32301
