The Issue Whether Petitioner has just cause to terminate Respondent from employment as a bus driver, a non-instructional position.
Findings Of Fact Background The School Board is the duly authorized entity responsible for the operation, control, and supervision of all public schools (grades kindergarten through 12) in Hernando County, Florida, and for otherwise providing public education to school-aged children in the county. § 4(b), Art. IX, Fla. Const. At all times material to this proceeding, Respondent was employed by Petitioner as a bus driver, a position she held for approximately 16 years. Bus drivers are considered educational support or non-instructional employees. The School Board has adopted a Safe Driver Plan that applies to all bus drivers. All bus drivers receive a copy of the Safe Driver Plan annually, and are required to sign the Safe Driver Acknowledgement Form indicating that he/she has reviewed and understands the plan. The Safe Driver Plan specifically provides guidelines for assignment of points based on alleged driving-related incidents and maximum number of points that may be assigned for each violation. A recommendation for disciplinary action is based on the number of points assigned during a 12-month time period. Under the Safe Driver Plan, the recommendation for disciplinary action for the designated points within a 12-month period is as follows: 1-4 points, a documented warning; 5- 6 points, a one-day suspension without pay; 7-9 points, three days’ suspension without pay; and 10 points, recommendation for termination. Pursuant to the Safe Driver Plan, the Review Board “assesses points for any violation or incident/crash from 0 through 10 following the approved point system outlined in the plan.” Specifically, the Review Board, made up of five members, as designated by the Safe Driver Plan, is responsible for reviewing driver incidents, determining whether the incidents were preventable or unpreventable, listening to any evidence provided by the driver regarding the incidents, and assessing points pursuant to the Safe Driver Plan. The Review Board does not have discretion regarding the recommendation made to the driver’s site administrator. Regarding assignment of points, the Safe Driver Plan provides in relevant part: If court action is required to determine fault in an incident/crash, and the assignment of points would be five (5) points or less, the driver shall not be assigned points until court action is taken. Effective date of points assigned shall be the date of the violation. * * * If a driver is assigned points, he/she will be informed of the assignment of points by the Safe Driver Review Board in writing. The driver may then accept the point assignment or he/she may appeal the assignment of points to the Coordinator of Safety and Security. When points are assessed by the Review Board, the driver who is the recipient of the points has an opportunity to appeal the decision. The Safe Driver Plan includes an appeal process which provides, in relevant part, the following: The driver must inform his/her supervisor in writing of their decision to appeal within five working days of notification of assigned points. The request shall state the driver’s objections to the assignment of points in detail. The supervisor shall then forward the request for appeal to the Coordinator of Safety and Security. A driver who chooses to appeal the assignment of points will be given a copy of all accident information for their review by the investigator prior to the date of the meeting. This will give the driver the opportunity to review all information that will be presented at the hearing and prepare for the hearing in order to rebut any of the information that will be presented. It will also give the driver the opportunity to present testimony and information to the Coordinator of Safety and Security or to offer an explanation of mitigating circumstances prior to points being upheld. After the Safe Driver Review Board’s final recommendation of administrative action is made and any driver’s appeal is heard, all disciplinary action taken by the driver’s supervisor must follow the School Board approved disciplinary policy. For purposes of this matter, the driver appeals the assignment of points to William Hall, the manager of fire, safety, and security. Mr. Hall testified that he reviews all of the information submitted by the driver, and if there is additional evidence or mitigating circumstances that were not before the Review Board, he would meet with the driver for a hearing. If there is no new evidence or mitigating circumstances, Mr. Hall then unilaterally determines the appeal based on the documents. After a driver has exhausted the appeal process, a driver, who is facing a potential suspension or termination based on the accumulation of points, may appeal the coordinator’s decision by using the School Board’s approved complaint process. For purposes of this matter, that appeal goes to the supervisor of professional standards, Matthew Goldrick, who serves as the designee for the superintendent and handles the driver’s predetermination meetings. At the predetermination hearing, the driver is given an opportunity to present any information that she wants prior to any decision being made for a suspension or termination. The superintendent then decides whether to proceed with a recommendation for discipline. The School Board has adopted policy 6.37, which establishes standards for the separation, discipline, and discharge of non-instructional employees, including Respondent. Paragraph (5)(d) recognizes three categories of offenses and a guide for recommended penalties. Relevant to this proceeding are the offenses and recommended penalties for Group III. The penalty for Group III offenses carry a recommended penalty of "up to discharge" for the first violation. The School Board has charged Respondent with violating the Safe Driver Plan by accumulating 10 points within a 12-month period, which results in a recommendation of termination. Respondent was also charged with a violation of a Group III offense, namely accumulating disciplinary actions, no one of which standing alone would warrant discharge. The accumulation of points resulted from four driving violations, which are discussed further below. Driving Violations On Tuesday, December 8, 2015, Respondent was issued a traffic citation for careless driving while operating her bus. Respondent did not immediately report the citation as required by the Safe Driver Plan. On January 6, 2016, the Review Board reviewed Respondent’s December 8, 2015, incident. The Review Board assessed Respondent with a violation for “[f]ailure to report an incident/crash or citation, no matter how minor, while operating a School Board vehicle immediately during regular working hours and as soon as reasonably possible after working hours,” a Category 3 violation. The Review Board determined the incident was preventable and assigned Respondent 10 points. Respondent appealed the Review Board’s assignment of 10 points for the December 8, 2015, incident. On January 21, 2016, a Safe Driver Appeals Meeting was held before Mr. Hall. As a result of the appeal, Respondent’s assigned points were reduced to four points. On April 25, 2016, Respondent was involved in an accident while operating her bus. The Review Board met and assigned Respondent the maximum of two points for improper backing, a Category 25 violation of the Safe Driver Plan. The assessment brought Respondent up to six points in a 12-month period. Respondent did not appeal this assessment of points. On May 23, 2016, Respondent was issued a citation for running a red traffic light signal. On September 14, 2016, the Review Board reviewed Respondent’s alleged violation from May 23, 2016, at which time the Review Board listened to Respondent’s evidence and reviewed the available video. The Review Board determined that the video reflected that Respondent failed to obey the red light traffic signal, a Category 13 violation of the Safe Driver Plan. While such a violation could result in a maximum of four points under the Safe Driver Plan, the Review Board assigned Respondent two points for the violation. The Review Board’s assignment of points placed Respondent at an accumulated eight points for the past 12-months. Mr. Handzus and Mr. Goldrick credibly testified that court action was not necessary to determine fault because the video clearly depicted Respondent failing to obey the red light. On September 14, 2016, Respondent wrote a letter to Mr. Hall seeking to appeal the assessment of two points for failure to obey the red light traffic signal. In the appeal letter, Respondent indicated her objection to the assessment in detail by stating that she ran the red light, because she “had almost no choice but to go through it.” Mr. Hall denied her request for an appeal.1/ Respondent was brought in for a predetermination hearing as part of the disciplinary process because her eight points in a 12-month period would result in a three-day suspension. After the predetermination hearing, and listening to Respondent’s arguments, the recommendation was made to suspend Respondent for three days without pay. Respondent did not appeal the disciplinary action resulting in the three-day suspension.2/ On October 26, 2016, after having been reinstated from her suspension, Respondent was involved in an incident on Deer Run Road where she backed her school bus into a mailbox. On November 7, 2016, the Review Board assigned Respondent the maximum two points for improper backing, a Category 25 violation of the Safe Driver Plan. This was Respondent’s second violation for improper backing. On November 7, 2016, Respondent timely sent a letter to Mr. Hall timely requesting an appeal of the assessment of two points for the October 26, 2016, incident. In the letter, Respondent explained in detail her objection to the assessment of the points by stating that on “[t]he morning of 10/26/2016 at 5:30am . . . I hit a mailbox” and that “[w]hile backing up [she] hit the mailbox.” Mr. Hall reviewed the appeal letter and denied the request for appeal. Mr. Hall testified that he denied the request for appeal because there was no information in the letter that would mitigate Respondent’s conduct and there was an admission regarding the violation. However, Mr. Hall’s actions were a direct contradiction to the appeal process as expressly written in the Safe Driver Plan. The Safe Driver Plan does not provide Mr. Hall the authority to unilaterally deny a driver’s “request for an appeal” or exercise discretion in granting or denying an appeal. Ms. Rodgers was entitled to an appeal so long as she made that request in writing within five days of notification of the assigned points. Respondent complied with that requirement. The appeal process also provides that Respondent would be entitled to a copy of all information for review prior to the date of the meeting to prepare for hearing and given an opportunity to present testimony and mitigation before the points are upheld. Mr. Hall testified that he considered the comments in Respondent’s letter as mitigation. However, under the Safe Driver Plan appeal process, mitigating evidence would be offered at the hearing, not in the notice of appeal letter. Further, the driver checklist in items 7 through 9 restates the procedure as outlined in the appeal process. Simply put, the appeal request letter is only required to include details regarding any objection, nothing more. Mr. Hall did not properly comply with the appeal process in the Safe Driver Plan as written. Pursuant to the Safe Driver Plan, “[c]hanges to the plan may not be implemented without Board approval.” There was no evidence offered at hearing that the written Safe Driver Plan had been changed. Mr. Hall improperly denied Respondent’s request for an appeal and, thus, improperly upheld the Review Board’s decision to assess the two points for the October 26, 2016, violation. Based on the alleged accumulation of 10 points within a 12-month period, Respondent appeared for a predetermination meeting regarding the recommendation for termination of employment. At the predetermination meeting, Respondent was provided the opportunity to offer any mitigating circumstances to the recommendation for termination. The recommendation for termination included the assessment of the two points for the October 26, 2016, incident. Mr. Goldrick considered Respondent’s arguments and determined that there were no mitigating circumstances that would warrant discipline short of termination. The record does not include evidence regarding the mitigation considered by Mr. Goldrick. Following the predetermination meeting, on January 3, 2017, the School District’s superintendent notified Respondent by letter of the recommendation to terminate Respondent’s employment for misconduct. Respondent timely disputed the allegations in the Notice and requested a hearing to appeal the recommendation of termination. By letter dated January 20, 2017, Respondent was notified that the recommendation to the School Board would be modified to one of suspension without pay, effective January 25, 2017, and referral of her appeal to the Division of Administrative Hearings. At the January 24, 2017, meeting of the School Board, the School Board authorized that this case be referred to the Division of Administrative Hearings, whereupon this case ensued. The evidence at hearing demonstrates that Mr. Hall improperly denied Respondent’s request for an appeal of the October 26, 2016, violation. However, given the procedural posture of this case the undersigned has considered whether the Review Board appropriately assigned the two points for the October 26, 2016, incident. The undersigned finds evidence of mitigation in the record. The record demonstrates that on October 26, 2016, Respondent had been driving a new, unfamiliar route for approximately two days before the incident. Respondent stated in her request for appeal letter that it was “pitch-black outside” and her ability to turn was impeded by an oncoming vehicle using its high beam lights. After considering the above mitigating factors, the undersigned finds that the evidence in the record does not warrant a deviation from the Review Board’s assignment of the standard two points for the October 26, 2016, improper backing violation. The evidence supports that the assignment of two points against Respondent for the October 26, 2016, incident was appropriate. The mitigation did not warrant reduction of the points assessed. As a result, the record correctly demonstrates that Respondent accumulated 10 points. Petitioner demonstrated by a preponderance of evidence that there is just cause to terminate Respondent’s employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Hernando County School Board, enter a final order terminating the employment of Mildred Rodgers as a bus driver. DONE AND ENTERED this 30th day of November, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 30th day of November, 2017.
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 issue presented in Case No. 92-2911 is whether Respondent is guilty of the allegations contained within the Notice of Specific Charges filed against him, and, if so, whether his employment with the School Board of Dade County, Florida, should be terminated. The issue presented in Case No. 92-7414 is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action, if any, should be taken against his licensure as a teacher in the State of Florida.
Findings Of Fact Respondent holds Florida teaching certificate number 451673, covering the areas of driver education, reading, and physical education. His teaching certificate is valid through June 30, 1999. At all times relevant hereto, Respondent has been employed by Petitioner School Board of Dade County, Florida, as a teacher at Miami Killian Senior High School, pursuant to a professional service contract. During the 1991-92 school year Respondent was employed as the department head of the driver education program at Killian. For that school year, it was determined that an additional driver education class would be offered after regular school hours, during the seventh period, through the adult education program at Killian. Anthony Pariso, who was the principal at Killian, wanted to offer that seventh-period driver education class to Respondent, an opportunity which would provide extra salary to Respondent. He discussed his desire with Patrick Snay who was then the assistant principal at Killian and who was also in charge of Killian's adult education program. Snay was strongly opposed to giving the seventh-period class to Respondent because Snay had problems in the past with Respondent maintaining accurate enrollment and attendance records in the adult education program. Pariso reminded Snay that Pariso was the boss. Because of Snay's concerns, Pariso and Snay met with Respondent. They advised Respondent that the class would be offered only if enough eligible students enrolled in the class since funding for the class (and Respondent's extra salary) was dependent upon a minimum of 24 sixteen-year-olds. Although the course itself was not new, the fact that it was being offered during the seventh period as part of the adult education (night school) program made it a pilot program, which would serve as a model for other high schools in Dade County. Therefore, it would be closely monitored, and it was important that all of the requirements of adult education be met. During that conference Pariso and Snay specifically went over the requirements of the course, even though Respondent was the driver education department head and quite familiar with the course requirements. They made it very clear to Respondent that he had to have 24 sixteen-year-olds enrolled before the course could be offered. He was given specific instructions in terms of how to enroll the students. In that conference Pariso and Snay specifically told Respondent the rules relating to driver education classes in the Dade County Public Schools. Specifically, driver education class cannot be repeated unless the student received a "D" or an "F" in the class and then only during summer school. The class cannot be repeated for credit or for insurance reasons. Because of the problem Snay had in the past with Respondent, Pariso and Snay made Respondent repeat to them the instructions regarding who would be eligible to take the new seventh-period class. Respondent also coached the baseball team at Killian. As part of his efforts to enroll students in the class, Respondent met with the baseball team. He told them that they were to enroll in his seventh-period driver education class. The baseball players attending the meeting told Respondent that they had already taken the class from him. Respondent specifically told them that it did not matter, that they were to sign up for his class, that they were not required to attend the class, and that he would give them credit and an "A" without them attending. He passed out forms for enrollment and told them to fill out those forms and to sign the name of one of their parents on the portion of the form that required the signature of a parent to give permission for the student to attend night school. Several of those students who did not complete the enrollment form when first directed to by Respondent were contacted by him at their homes. Respondent reminded at least one of them that Respondent was in charge of deciding who would play baseball, implying there would be repercussions if that student did not enroll in the class. Respondent did such a good job enrolling students that it was possible to offer a second class during the seventh period. Snay was opposed to giving Respondent the opportunity to teach the additional class. Vincent Kubicek, another teacher in the driver education department at Killian, was offered the second class. Pariso and Snay met with Respondent and Kubicek. They explained to Kubicek and reminded Respondent that the offering of the driver education class as part of the adult education program was a pilot program initiated by the Superintendent of the Dade County Public Schools and that Kubicek and Respondent would have to stay in strict compliance with attendance guidelines, with grading, and with all School Board policies. The requirements for eligibility to take the class were again explained. The two seventh-period driver education classes were combined into one large class, known as Group A and Group B. Both groups were taught at the same time. Kubicek taught the class lecture and driving range portions. Respondent was in charge of the on-street driving part of the class. Respondent, as the department head, was responsible for the entire driver education program. He was also responsible for enrolling students in the seventh-period driver education course and for making an accurate and official record of attendance. Kubicek took the daily attendance for his portion of the course from the grade and range cards which he created. He did not have access to the official driver education seventh period attendance sheet. Respondent had the official attendance sheet, and the official attendance report was signed by him. There were students enrolled in the seventh-period class who were on the official attendance sheet signed by Respondent who never attended the class and who were not eligible to take the class. When it was time to fill out the official grade sheets for the first 9-week grading period, Kubicek was responsible for completing them. For the first time in the years they had worked together, Respondent insisted on helping Kubicek average the grades. While they were doing that, Kubicek discovered that there were students on the official grade sheets who had never attended the class. Kubicek called that to Respondent's attention, and Respondent replied that he would take care of it. Respondent told Kubicek, however, to give "A"s and "B"s to the students who had never attended the class. Kubicek awarded grades to all the students on the grade sheet, as instructed by Respondent, Kubicek's department head. Kubicek then took the official grade sheets to assistant principal Snay and explained what had happened and what Respondent had instructed him to do. Snay reported Respondent's falsification of the official records to principal Pariso. Pariso and Snay confronted Respondent about enrolling students who were ineligible and about directing Kubicek to give them passing grades when they had not attended the course. Respondent admitted his actions, stating that he was simply trying to help the students. Pariso fired Respondent from the seventh-period driver education class and replaced him with another of Killian's driver education teachers Eric Fleming. Respondent intentionally failed to follow the direct and reasonable orders of his superiors for enrolling students in the driver education class. Those orders were given to Respondent on at least two occasions, and he had been required to repeat them to show that he understood them when they were given. Despite those clear orders from both Pariso and Snay, Respondent enrolled students in the after-school driver education course that he knew had already taken the course and passed it and who were, therefore, ineligible to take the course again. As a result of an anonymous phone call to the principal of Palmetto Adult Education Center regarding improprieties in Killian's after-school driver education course, Pariso initiated a personnel investigation. He told Respondent that an investigation was forthcoming. Respondent contacted the students affiliated with his baseball team who were ineligible but enrolled in the class to tell them that they would be questioned. He also told them to tell the investigator the same story, i.e., that they had enrolled but that they had dropped the course because they had a job or had other demands on their time during the seventh-period class. He also told them what had occurred during the class in order that they could answer any questions regarding the class itself. When the investigator interviewed the ineligible students, they gave the false statements that Respondent had told them to give. One student later went to the investigator and told him that they had all lied and told the investigator why. The students were interviewed a second time. During the second set of interviews, the ineligible students admitted that they had taken the class previously and had received passing grades, that Respondent had pressured them to enroll again, that they had forged their parents' signatures to the form as instructed by Respondent, that some had agreed to take the course based upon his offer to give them credit and an "A", and that Respondent specifically said they did not have to attend. Moreover, at least one of the students had been enrolled in the seventh-period class by Respondent without her knowledge. After the ineligible students admitted that they had provided false statements to the investigator during the first interviews and after they had provided truthful statements in the second set of interviews, Respondent contacted at least one of those students and attempted to pressure that student into retracting the second statement and returning to the original false statement. In approximately 1989 Respondent asked two Killian students to follow his ex-wife home from work so Respondent could find out where she lived. They did so, and Respondent paid them $20. He then asked them to damage his ex- wife's car, which they refused to do because they thought that part was too risky. In approximately October 1991 Respondent asked those same students who had by then graduated from Killian to follow Fleming and Kubicek, the two teachers teaching the seventh-period driver education class, home from work. He offered them $50 to "trash" Fleming's and Kubicek's cars. Although those former students did follow Fleming home and subsequently gave Fleming's address to Respondent, they did not follow Kubicek home and they refused to damage either Fleming's or Kubicek's cars. On December 20, 1991, Kubicek's car was deliberately scratched with a key or other sharp object in the faculty parking lot at Killian. On that day, Fleming and Respondent were together all morning except for one period of time which lasted a few minutes during which Respondent left the driver education portable and then returned holding his keys. After his return, it was discovered that Kubicek's car had been "keyed". Later that day, Greg Dunn, a math teacher at Killian, was talking to his students about honesty while he was teaching his sixth-period consumer math class. One of the students challenged Dunn, asking the teacher how he could talk about honesty when the student had seen a teacher "keying a car." Dunn asked that student if he would talk to him after class, and the student agreed. The student explained that he and another student were behind a row of trees next to the faculty parking lot while they were cutting classes that morning. They saw and heard a teacher scratching Kubicek's car. Dunn reported his conversation to principal Pariso, who contacted the special investigative unit of the Dade County Public Schools. The investigator interviewed those two students individually, and both students independently identified Respondent as the teacher who keyed Kubicek's car. Further, both students independently identified Respondent from a photo line-up even though the photograph of Respondent used in the line-up was taken from a old yearbook and showed Respondent at a time when he wore a mustache. During the 1988-89 school year, Respondent engaged in an inappropriate relationship with a minor female Killian student, which included sexual activity. That student's father met with Respondent and requested Respondent to terminate the relationship, unsuccessfully. The student's father subsequently scheduled a conference with principal Pariso and played a tape which the father had secretly made of a telephone conversation between his daughter and Respondent. It was clear to Pariso from the tape that Respondent and the student were engaging in a sexual relationship and that Respondent had ignored the father's request to terminate that relationship. Pariso confronted Respondent about the tape and the relationship. Respondent was visibly shaken and quite upset about the tape. At first, Respondent suggested that he would simply lie to the father about the contents of the tape. Thereafter, however, Respondent admitted the relationship and assured Pariso that he would terminate it. Pariso directed Respondent to stay completely away from that student. Respondent did not terminate the relationship as ordered to by principal Pariso. Respondent's inappropriate sexual relationship with the minor female student was well known among students and teachers at Killian. Respondent's effectiveness in the school system has been severely impaired.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: A Final Order be entered by Petitioner Dade County School Board in DOAH Case No. 92-2911 terminating Respondent's employment and denying his claim for back pay from the date of his suspension, and A Final Order be entered by the Education Practices Commission in DOAH Case No. 92-7414 permanently revoking Respondent's teaching certificate. DONE and ENTERED this 24th day of August, 1993, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2911 AND 92-7414 Petitioner School Board's proposed findings of fact numbered 1, 3-31, 34-47, and 51 have been adopted either verbatim or in substance in this Recommended Order. Petitioner School Board's proposed finding of fact numbered 2 has been rejected as being irrelevant to the issues under consideration in this cause. Petitioner School Board's proposed findings of fact numbered 32, 33, and 49 have been rejected as being unnecessary to the issues involved herein. Petitioner School Board's proposed findings of fact numbered 48 and 50 have been rejected as not being supported by the weight of the competent evidence in this cause. Petitioner School Board's proposed findings of fact numbered 52-56 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Petitioner Castor's proposed findings of fact numbered 1-6, 10-64, 68- 77, 81, 82, and 84-87 have been adopted either verbatim or in substance in this Recommended Order. Petitioner Castor's proposed finding of fact numbered 66 has been rejected as being irrelevant to the issues under consideration in this cause. Petitioner Castor's proposed findings of fact numbered 7-9, 65, 67, 83, 88, and 89 have been rejected as being unnecessary to the issues involved herein. Petitioner Castor's proposed findings of fact numbered 78-80 have been rejected as not being supported by the weight of the competent evidence in this cause. COPIES FURNISHED: Patricia D. Bass, Esquire Luis Garcia, Esquire 1501 North East 2nd Avenue Miami, Florida 33132 Robert J. Boyd, Esquire Bond & Boyd, P.A. 411 East College Avenue Post Office Box 26 Tallahassee, Florida 32302 Mark H. Klein, Esquire Allison L. Nash, Esquire Grand Bay Plaza, Suite 606 2665 South Bayshore Drive Coconut Grove, Florida 33133
The Issue The issues are whether Florida Power and Light may backbill James Kiselak for electricity diverted from a residential electric meter, and for costs of investigation, and whether it may decline to transfer the account for the residence at which the electricity was diverted to the name of Pat Kintz until the backbill and the costs of investigation are paid.
Findings Of Fact Mr. James Kiselak has, for a number of years, been the customer of record for electric service provided by Florida Power and Light Company to a residence located at 3987 NW 163rd Street in Opa Locka, Florida. Mr. Kiselak had been accused in 1985 of current diversion by removing the meter and inverting it. After an investigation, Mr. Kiselak paid a back bill for current diversion. As part of the resolution of the first current diversion matter, the old meter, #5C75910, was removed and replaced with meter #5C98980 on January 27, 1986. The meter was brand new at the time it was installed. This is not a situation where a new resident has become the customer of record at a home and "inherited" a meter which had been tampered with by a prior resident. In August of 1989 Florida Power and Light Company received a tip that the customer at the Kiselak residence was removing the meter from the socket. A meterman was sent to investigate on September 17, 1989, who found only a hole in the acrylic canopy over the meter. The meter was reinspected by Mr. Chase Vessels on March 18, 1990. He found a wire placed through the hole in the acrylic canopy which stopped the meter disc from turning and registering the use of electricity. At that time he saw that electricity was being consumed because a wall unit air conditioner was operating, a freezer located outside the home was operating, and the outside lights were on. That meter was removed and taken under lock and key where it was tested by Emory Curry on April 4, 1990. Mr. Curry found that the wire through the hole in the canopy had stopped the disc from turning, and that there were drag marks on the top of the disc. When the obstructing wire was removed, tests showed that the meter registered current usage appropriately. The meter has been kept in a locked meter box, and FPL has maintained a log of all persons who have had access to the meter in that box since that time. From the time the meter was tested by Mr. Curry on April 4, 1990, no other person has had access to the meter, the meter was locked again at the close of the hearing on November 4, 1991, in the meter box. The wire was maintained in a separate envelope and locked in the meter box as well. An investigator for Florida Power and Light Company, Joe Brenner, observed the residence at 3987 NW 163rd Street on January 23, 24, and 25, 1991, February 4, 5, 6, 7, and 8, 1991, and February 11, 12, 13, and 14, 1991. In the yard in front of the home a Mazda truck was parked, as well as a Mazda RX7, 2- door automobile, which had no license tag. On January 23, Mr. Brenner saw a gentleman come out, go to the mailbox, remove mail, go through it in a manner consistent with receiving mail at his place of residence and re-enter the home. A credit report obtained by Florida Power and Light Company from Equifax Credit Information Services in North Miami Beach, Florida, shows that Mr. Kiselak has resided in the house from August 6, 1973, through the date of that report on October 30, 1991, and that he receives bills from his various creditors at that address. Mr. Brenner met this man at the informal hearing which was conducted by the Public Service Commission, who identified himself as James Kiselak. Mr. Kiselak drove to the informal hearing in the Mazda RX7, which then had a license plate. The records of the Dade County Auto Tag Agency which were admitted during the hearing show that the car was registered to James Kiselak at the address of 3987 NW 163rd Street in Opa Locka, Florida. After the testing of the meter in April of 1990, a current diversion investigator for Florida Power and Light Company, Diann Thomas, met with Patricia Kintz at the residence where the current diversion occurred; she was accompanied by Roger Sweeney, who also works for Florida Power and Light. At that time Ms. Kintz maintained that she was the owner of the house and its resident, that she was solely responsible for the payment of the electric bills and that she lived in the home alone. Based upon the records of Florida Power and Light which have shown Mr. Kiselak as the customer at the residence since before 1986, his presence at the home on January 23, 1991, his receipt of mail there, the credit report showing that the residence is his billing address for his creditors, and the presence of the Mazda automobile at the residence during the period from January 23 to February 14, 1991, I find that Mr. Kiselak has been residing at the home continuously, and has received the benefit of the current diversion based on meter tampering. For a substantial period of time, at least since October 11, 1988, Ms. Kintz has also occupied the house and received the benefit of the current diverted, although there is no proof that she is (a) responsible for causing the diversion or (b) subject to a cause of action by Florida Power and Light Company for the value of the current diverted. Ms. Diann Thomas has calculated a backbill for the current diverted at the Kiselak residence in a manner consonant with Rule 25-6.104, Florida Administrative Code, which permits a utility to bill the customer "on a reasonable estimate of the energy used" when there has been meter tampering. The type of tampering involved would be manipulable from day-to-day or month-to-month. The bill during the month of April 1989 was for 2,079 kwh of electricity. Usage registered that month was high compared to other months and it is reasonable for the utility to regard this as an unmanipulated month, and to use that consumption as the basis for projecting the proper amount to be billed. For the entire year of 1989, on average for residential customers of Florida Power and Light Company, April bills represented 6.81 percent of all billings for the calendar year. Therefore, the projected electric utilization for the entire year would be 30,529 kwh. Stated another way, the average percentage of use calculation would also show an average use of 69 kwh per day. After the diversion was detected and the new (i.e. third) meter was set on the residence, the use recorded for August and September of 1990 were 2,885 kwh and 3,333 kwh, which are consistent with the average percentage of use calculation based on the April 1989 actual usage. The projected usage for the bill delivered in March 1986 (the first full billing period after the meter had been placed on January 27, 1986), through April of 1990, after the diversion was discovered, is calculated in FPL exhibit 10. The actual bills paid for the Kiselak residence were deducted from the projected amounts in FPL exhibit 18. Based upon these calculations FPL is due $6,871.65 for the diverted electricity; a franchise charge, which would have been added to each monthly bill based upon kilowatt hours used of $284.69, is due, as is a city/county utility tax of $591.80, and a current diversion investigation charge of $375.53. The current diversion investigation charge is reasonable and is broken out on page 4 of FPL exhibit 10. The total due to FPL is therefore $8,087.67. The second issued raised is whether Florida Power and Light Company has properly declined to transfer service at the residence to the name of Ms. Kintz, without payment of the total amount due from Mr. Kiselak. The preponderance of the evidence shows that Mr. Kiselak has used the address as a mailing address for his credit cards, he has been observed frequenting the residence. Ms. Kintz has been also residing there since at least October 10, 1988, when her most current Florida drivers license was issued and she used the residence as her address on that license. Both Kiselak and Kintz continue to occupy the residence. While only Mr. Kiselak is indebted to Florida Power and Light, its tariffs, which have been approved by the Commission, do address this situation. According to tariff sheet 6.010, on service agreements, section 1.5: [Florida Power and Light] may refuse or discontinue service for failure to settle, in full, all prior indebtedness incurred by any customer for the same class of service at any one or more locations of such customer. [Florida Power and Light] may also refuse service for prior indebtedness by a previous customer provided that the current applicant or customer occupied the premises at the time the prior indebtedness occurred and the previous customer continues to occupy the premises. Both Ms. Kintz and Mr. Kiselak benefited from the service during the period current had been diverted, for while the account had been in Mr. Kiselak's name, Ms. Kintz resided there too. Florida Power and Light may refuse to provide service to Ms. Kintz at 3987 NW 163rd Street pursuant to the tariff sheet. The provisions of the tariff sheet are reasonable. It is specifically meant to cover situations such as this, though the more common situation would be one in which two college roommates occupy an apartment or residence, while the electric service is in the name of only one of them. After running up a substantial electric bill which they are unable to pay, the roommate not named on the FPL account may apply to have the service transferred to his (or her) name, and thereby attempt to avoid payment of the current bill, and avoid an interruption of service. Section 1.5 of tariff sheet 6.010 (FPL exhibit 13) is designed to prohibit such situations. It prohibits the transfer of the account into the name of Ms. Kintz here.
Recommendation It is RECOMMENDED that a final order be issued by the Florida Public Service Commission finding that Mr. Kiselak is indebted to Florida Power and Light in the amount of $8,087.67, and that if this amount is not paid to Florida Power and Light within 10 days from the date of the Commission's final order, Florida Power and Light be authorized to cease providing electric service to that address. It is also recommended that Florida Power and Light not be required to transfer the account from the name of Mr. Kiselak to Ms. Kintz unless Mr. Kiselak first pays the full amount due, because Ms. Kintz occupied the premises at the time the current diversion occurred and still continues to occupy those premises. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of November 1991. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November 1991. COPIES FURNISHED: K. Crandal McDougall, Esquire Florida Power and Light Company Legal Department Post Office Box 029100 Miami, Florida 33102-9100 Mr. James Kiselak 3987 Northwest 163rd Street Miami, Florida 33054 Ms. Pat Kintz 3987 Northwest 163rd Street Miami, Florida 33054 Kay Flynn, Chief PSC/Bureau of Records 101 East Gaines Street Tallahassee, Florida 32399-0870 Susan Clark, Esquire Public Service Commission 101 East Gaines Street Room 212 Tallahassee, Florida 32399-0850 Steve Tribble, Director of Records and Recording Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 David Swafford, Executive Director Public Service Commission Room 116 101 East Gaines Street Tallahassee, Florida 32399-0850 Rob Vandiver, General Counsel Public Service Commission Room 212 101 East Gaines Street Tallahassee, Florida 32399-0850
Findings Of Fact Based on the evidence adduced at hearing, the undersigned makes the following findings of fact: Respondent holds a license issued by Petitioner which permits it to engage in the business of a motor vehicle dealer at 9901 N.W. 80th Avenue, Bay 3C, Hialeah Gardens, Florida. On Friday, September 9, 1988, during normal business hours, Karen Reyes, who is employed by Petitioner as a License and Registration Inspector, visited this location to attempt to conduct an annual inspection of Respondent's records. The doors to the warehouse where the business was supposed to be located were closed and locked and no one was around the dealership. Reyes left a note requesting that a representative of the dealership contact her. She then-departed. Reyes returned to the location on Tuesday, September 20, 1988. Although it was mid-morning, the warehouse doors were closed and locked and there was no one present. Before departing, Reyes left a second note asking that she be contacted by someone from the dealership. The following day Reyes attempted to telephone the dealership. No one answered the phone, however, when she called. Reyes reported her findings to her supervisor. As a result, on October 20, 1988, Respondent's President, Javier F. Rodriquez, was sent a letter in which he was advised that Petitioner proposed to revoke Respondent's motor vehicle dealer license on the ground that Respondent had closed and abandoned its licensed location. The letter further advised that Respondent had the right to request a formal hearing before any final action was taken against it. Rodriquez responded to the letter by requesting a hearing at which he would have the opportunity to present proof that the dealership had not been closed or abandoned. In view of this response, Reyes was instructed by her supervisor to pay another visit to the dealership. She made this visit on Tuesday, November 8, 1988. This time she encountered two men at the location. There were also a couple of cars there as well. One of the men, who claimed to be a representative of the dealership, telephoned Rodriquez's wife and had her speak with Reyes. During their telephone conversation, Mrs. Rodriquez informed Reyes that her husband was still active in the automobile sales business, but that he was conducting his business at their home. At the conclusion of their discussion, Reyes asked Mrs. Rodriquez to have her husband call Reyes' office. Mr. Rodriquez telephoned Reyes' office on November 16, 1988. Reyes was not in, so Rodriquez left a message. Later, that day, Reyes returned the call, but was unable to reach Rodriquez. The following day, Reyes went back to the dealership, where she found the same two men she had met there on November 8, 1988. Rodriquez, however, was not at the dealership. Reyes therefore left. She came back later in the day. This time Mr. Rodriquez was present and he spoke with Reyes. When asked by Reyes why there was no business activity nor records at the licensed business location, Rodriquez responded that the dealership was now open every day from 9:00 a.m. to 4:00 p.m. He provided Reyes with no additional information. Reyes revisited the dealership on Friday, January 13, 1989, Wednesday, January 18, 1989, Thursday, January 19, 1989, and Monday, January 23, 1989, during normal business hours. On each of these occasions, she found no one at the location and the doors to the warehouse closed and locked. She made another visit on Monday, January 30, 1989. Although it was during normal business hours, there was no indication of any activity at the dealership. Furthermore, the sign which had identified the business had been removed. This prompted Reyes to speak with the leasing agent at the warehouse complex. The leasing agent told Reyes that Respondent was no longer occupying space at the complex.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's motor vehicle dealer license. DONE and ORDERED this 27th day of March, 1989, in Tallahassee, Florida. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1989. COPIES FURNISHED: Michael J. Alderman, Esquire Neil Kirkman Building, A-432 Tallahassee, Florida 32399-0504 Javier F. Rodriquez, President Inrodar Auto Sales, Inc. 9901 N.W. 80th Avenue, Bay 3C Hialeah Gardens, Florida 33016 Charles J. Brantley, Director Department of Highway Safety And Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney, Esquire General Counsel Department of Highway Safety And Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
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
