Findings Of Fact The Respondent, Department of Health and Rehabilitative Services is the state agency charged with the responsibility of monitoring the Aid For Families with Dependent Children, (AFDC), program in Florida. Petitioner Nola Little and the Intervenors, are recipients of services under that program and subject to the terms of the existing and proposed rules. The Department published notice of Proposed Rules 10C-1.080, 10C-1.082, and 10C-1.107 in Volume 15, Florida Administrative Weekly, at pages 3082-3083, on July 21, 1989. The rules in question deal with the issue of entitlement to payment to eligible applicants for AFDC. Rule 10C-1.080(10)(b) has been amended to change the definition of the date of entitlement to the date of authorization or the 30th day from the date of application, whichever is earlier. Rule 10C- 1.080(11) has been amended to provide that the first payment to an eligible applicant must be made for the date of authorization or the 30th day from the date of application, whichever is earlier, and provides for a prorated payment based on the date of entitlement. Rule 10C-1.082 has been amended to provide that grants of applicants will be prorated for the initial month of entitlement. The increase in grant for the needs of persons added to the grant will be prorated for the initial month of grant increase. Rule 10C-1.107 has been amended to provide that the initial month's grant will be prorated from the date of entitlement. The initial month of grant increase for adding the needs of individuals to the grants will be prorated from the add date. Thereafter, on August 10, 1989, Petitioner Little filed a petition to determine the invalidity of the proposed rules alleging that: They violate Section 409.235, Florida Statutes, which requires the Department to furnish monthly financial assistance, and They provide an inadequate statement of economic impact. At the time she filed her Petition, Nola Little was a pregnant AFDC applicant residing in Pensacola, Florida. Intervenor Perez and his wife reside in Miami, Florida with Mrs. Perez' son by a former marriage. Mrs. Perez and her son were found to be eligible for AFDC. Mr. Perez and his natural children have not been approved due to pending consideration of Mr. Perez' determination of incapacity as a result of a back injury. He is, otherwise, eligible for AFDC. All Petitioners will receive prorated benefits under the proposed rule. Prior to the 1988 legislative session, the Department had been requested by the President of the Florida Senate to identify programs for a possible 5% reduction. The date of entitlement for new applicants for AFDC, the subject matter of one rule in question, was identified as one of those programs. Though the Governor agreed with the Department's proposal and recommended it, the Legislature did not adopt that program for cuts in the 1988 session. Again, prior to the 1989 legislative session, the Governor directed each department to identify programs for possible cuts up to 10% for a total of $23.9 million. As a part of his directive, he hypothetically identified cuts in programs to reach that figure. One item so identified was a change in the date of entitlement to AFDC. After considering various ways to implement the cuts, (4 different program alternatives), all of which had an unpleasant effect, Mr. Don Winstead, Assistant Secretary of DHRS for Economic Services, chose the current method of reduction and recommended it to the Department's Deputy Secretary for Administration who incorporated it as a part of the entire Department submittal to the Governor. A 5% cut list was ultimately forwarded to the Governor in December 1988, which included two of those alternatives on the 10% list. The instant program cuts were not recommended by the Governor. Mr. Winstead and his staff generated substantial input to the Legislature, its committees, and its staffers about the subject. Ultimately, the Legislature, in conference, agreed to certain cuts. Economic Services was reduced by some $17,476,531.00, including the programs covered by the proposed rules in question. It was clear to Mr. Winstead that the Legislature mandated the reduction as proposed. In July 1988, the Department's District Directors were told to implement the change. In Mr. Winstead's opinion, if the Department had "its druthers," it would not have made the change. The Department's policies are driven by the Governor's direction. Since the Governor did not recommend the cut, the official position of the Department is, and was, against it. In fact, Mr. Winstead felt it was not a good idea and testified against cuts in committee hearing. He indicated there that neither he nor the Department supported this cut or recommended it. Though he did not agree, the lawmakers possessed the authority to make the change and the cuts were passed by the Legislature and signed by the Governor. He is, therefore, obliged to implement them. Since the passage of the act which mandates the cuts, Mr. Winstead has not considered alternatives to direct budget deficit reduction, nor has the Department applied to the Governor to transfer social and economic program funds to address budgeting problems with the AFDC budget. Mr. Winstead's position is that the Appropriations Act mandates him to modify the AFDC grant date and the specific basis therefor is Appropriation Number 864 which gives general revenue and trust fund amounts which, when considered with the Legislature's statement of intent, indicates what has to be done. Admittedly, there is no specific mandate from the Legislature or the Governor to cut this specific program. However, when the list of possible program reductions was prepared in an in-house memorandum, the cut in AFDC funds was identified as #3. Mr. Winstead's position with regard to this cut is supported by Jennifer Lange, a program administrator with the Department whose unit wrote the proposed rule. She felt the Department had no option but to promulgate the rule due to the Legislative mandate. Considering the evidence as a whole, it is found that a logical conclusion to be drawn from the pronouncements, documents, and directives coming from the Legislature through the entire appropriations process, is that drawn by the Department here, to wit: cuts were mandated by the Legislature in this and other programs and action must be taken to implement them. The drafting and promulgation of the rule in question is but an appropriate extension of that conclusion. Assuming the rule is ultimately promulgated and funds are saved thereby, it is the intention of the Department to continue with the mandate of the Legislature until that body affirmatively changes its direction, even if more money is found somewhere else. Under the proposed rule, an applicant would be issued a check for the first period 30 days after application or after approval of the application, whichever came first. Since the Department routinely runs three payrolls a month, it would probably be one third of a month after the cutoff date that an applicant would receive his or her first check. Ms. Lange also was instrumental in drafting the Economic Impact Statement (EIS) to accompany the rules, utilizing in doing so, information garnered from a number of sources. Some figures utilized therein are a generalized estimate only. The majority of applications are accomplished within the 30 day period. Ms. Lange is satisfied that in the preparation of the EIS, all pertinent information required to be considered was considered and nothing that would materially effect the probity of the EIS was eliminated. The actual EIS was drafted by Mr. Greenwood and his team in late May or early June 1989. In doing so, Mr. Greenwood did not consider population additives. While the drafters of the EIS considered the entire subject matter, including legislative policy, no impacts, other than those ultimately addressed therein, were considered. The 6,000 case per month figure was used because it was the information provided by the Department's data unit and as a figure that was being used elsewhere in the Department. This was not the latest figure available, however. Current figures available reflected a potential for slightly in excess of 8,000 cases per month. The difference of over 2,000 cases per month is substantial. Mr. Greenwood concludes that the maximum which can be lost to any applicant is 30 days benefit, and the Department presumed, for the EIS, that all would lose that amount. In reality, that is unlikely. There is no doubt that the implementation of the proposed rule will have an impact on the economic welfare of those currently receiving AFDC and those who may receive it in the future. Rosemary Gallagher, an associate with the Florida Catholic Conference and a lobbyist in the area of social services, is very familiar with the social service agencies available to the poor in this state. In her opinion, having studied the proposed rules, almost all agencies will be adversely affected by their implementation. Clients will require more agency help as a result of the rule implementation and homeless shelters will be hit the hardest. The homeless population in Florida is composed of approximately 1/3 single women with children who need financial assistance to be self-sufficient. Reduction in AFDC benefits will require the client to stay in the shelter longer to accumulate rent money and funds for other required expenditures. By the same token, other organizations will similarly be affected. In addition, less money will have a devastating effect on the agencies , and the delay in receipt of payments, occasioned by the proposed change, will, in her opinion, hurt hundreds of thousands who are affected. This cutback is, she believes, the worst thing to happen in a long time, and she lobbied against the basic legislation calling for cutbacks. Ms. Gallagher has never been a case worker and has no degree or course work in either economics or social work. It is her opinion, however, that the legislative statement relied on by the Department calls for modification to AFDC, not necessarily a cut. As a matter of history, she relates, the Department has been asked for the last several years to list items for cut and historically has always identified those items it felt certain the Legislature would never cut. When, in this current year, it listed the currently considered program, in her opinion, this was done with the belief the Legislature would not approve any cuts, a position consistent with that indicated by Mr. Winstead, but cuts were nonetheless made by that body without, she believes, a proper public hearing. Dr. Frederick Bell, an economist on the faculty of Florida State University and an expert in economics, micro-economics, and the techniques of economic impact statement preparation, reviewed the instant EIS along with depositions and the transcript of public hearing on the matter. He has done some rudimentary research into the effect of the proposed rules and considered therewith the spending patterns of low income people in the areas of housing, clothing, and transportation. He has also looked at small businesses in Florida and feels that the EIS as drafted does not accurately reflect the situation and its method of preparation is poor. In his opinion, it is inadequate to show the effect on the economy since it failed to consider all factors pertinent thereto. He objects to the use of the term "negative cost" as used in the document, which he does not considers to be a proper economic concept. He assumes it is another term for savings. He assumes the EIS reference to 6,000 applications which are those approved per month. Other pertinent documentation, however, refers to a substantially larger number of applications (8,042) yet neither figure is sourced, and Dr. Bell is unable to verify their accuracy. The parties stipulated that in formulating the EIS, the Department utilized figures provided by the Legislature, but Dr. Bell's complaint regarding his inability to check their accuracy is still valid. Dr. Bell also questions the average grant amounts and notes that the Department assumes that the determination of eligibility is always going to be accomplished within 30 days. In his opinion, this is neither reasonable nor substantiated. He believes it is a "monumental" error to put into the EIS entirely different numbers than are actually expected. In the instant case, this resulted in a difference of $6.4 million which is substantial. With regard to that section of the EIS that starts, "Changing the effective date of grant increases," on the one hand, it indicates a cost of increased benefits as a result of adding individuals to the household, and on the other hand claims a reduced cost resulting from the loss of benefits to newborns. Dr. Bell professes to be "flabbergasted" by the conclusion drawn in the EIS that the additional costs to the agency will be balanced out by the benefits saved. In his opinion, there is absolutely no justification for that conclusion. He also disputes agency figure of $17.5 million in resultant cuts, concluding it would actually be more in the area of $23.9 million. As a result, he believes the impact will be substantially greater to individuals than that indicated. He also contends the state should have considered the cumulative effect on the economy of governmental program cuts, otherwise known as the "multiplier effect." A reduction in amounts spent will have a resultant double effect on the businesses where this money would normally be spent. There is nothing shown in the EIS to indicate this factor was considered. Dr. Bell also believes the agency should have considered the effects of its cutback on the counties and their support agencies as well as the nongovernmental charities involved in providing assistance to the underprivileged who will have to pick up the slack resulting from the cut in public money. He feels the EIS estimate of the cut's minimal effect on small minority businesses is not supported. It appears to him that the agency failed to utilize the services of the small and minority business advocate attached to the Florida Department of Commerce who could have provided input on whether a cutback in spending would have had a major effect on minority business enterprises. Dr. Bell is convinced that it will and his opinion is diametrically opposed to that of the Department. In substance, Dr. Bell was convinced that the EIS was "completely inadequate." In his cross examination of Dr. Bell, Respondent's counsel indicated there would be no impact on small and minority business and urges that Dr. Bell was stretching when he claims there would be. Such argument is ingenuous however. Regardless of which of the two impact figures cited is used, such a sum cannot help but have some impact on an economy which includes small businesses. The degree thereof and whether or not that impact constitutes grounds to invalidate the rule is another question altogether. Nothing in the statute or the rules relating to the sufficiency of an EIS requires that there be unanimity of opinion as to the conclusions drawn therein. Taken as a whole, the evidence appears to show, and it is so found, that while the EIS may well be subject to some disagreement as to a number of the provisions therein, and while some provisions may well be contra to the weight of the best evidence available, it is, nonetheless, basically adequate in content and form to constitute an acceptable economic impact statement in support of the proposed rules here.
Findings Of Fact 1. Five vendors responded to the Request for Proposal including Humana, Superior, MetLife, United HealthCare, and Davis Vision. (Joint Pre-Hearing Stipulation) 2. MetLife was declared non-responsive for failure to provide requested rates for the optional renewal term and United HealthCare and Davis were both declared non-responsive for their failure to provide minimum Network Access. (Joint Pre-Hearing Stipulation) 3. Only responsive vendors were eligible to proceed to the scoring portion of the procurement. (Joint Pre-Hearing Stipulation) 4. The intended awardee, Superior, has not been licensed by the Office of Insurance Regulation for the requisite three year period. This licensure period is a minimum requirement in the request for proposals and failure to meet this requirement deems the bid proposal submitted by Superior non-responsive and disqualifies the bid proposal from further consideration. (Motion to Relinquish Jurisdiction) 5. As a result of a flawed evaluation regarding the responsiveness of Superior’s proposal, the Department’s intended decision to award the contract to Superior was clearly erroneous and can no longer be maintained. (Motion to Relinquish Jurisdiction) 6. Humana is a responsive and responsible vendor to the Request for Proposal at issue. (Joint Pre-Hearing Stipulation) CONCLUSIONS OF LAW. 7. The Department of Management Services has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1)(i) and 120.57(4), Florida Statutes. 8. Section 120.57(1)(i), Florida Statutes, states: When, in any proceeding conducted pursuant to this subsection a dispute of material fact no longer exists, any party may move the administrative law judge to relinquish jurisdiction to the agency. An order relinquishing jurisdiction shall be rendered if the administrative law judge determines from the pleadings, depositions, answers to interrogatories, and admissions on file, together with supporting and opposing affidavits, if any, that no genuine issue as to any material fact exists. If the administrative law judge enters an order relinquish- ing jurisdiction, the agency may promptly conduct a proceeding pursuant to subsection (2), if appropriate . . . [emphasis added.] 9. Section 120.57(4), Florida Statutes, allows for an informal disposition of the case based upon the following: INFORMAL DISPOSITION. — Unless precluded by law, informal Disposition may be made of any proceeding by stipulation, agreed settlement, or consent order. 10. Material disputes of fact in this case were resolved through stipulations in the Motion to Relinquish Jurisdiction and the Joint Pre-Hearing Stipulation, which allow for an informal disposition of the proceedings. Under the facts and circumstances, additional proceedings under section 120.57(2), Florida Statutes, are unnecessary and inappropriate because the need for a de novo proceeding no longer exists. 11. The burden of proof in this bid protest is upon Humana. Section 120.57 (3) (f), Florida Statutes, provides: ... Unless otherwise provided by statute, the burden of proof shall rest with the party protesting the proposed agency action. In a competitive- procurement protest, other than a rejection of all bids, the administrative law judge shall conduct a de novo proceeding to determine whether the agency’s proposed action is contrary to the agency’s governing statutes, the agency’s rules or policies, or the bid or proposal specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary or capricious. 12. The clearly erroneous standard of proof set forth in section 120.57(3)(f), Florida Statutes, governs the determination that the Department’s intended decision to award the contract to Superior was improper. Under the specifications set forth in the request for proposals, failure to meet the three year licensure requirement renders a proposal non-responsive and disqualifies the bid proposal from further consideration. The Department’s initial review regarding the responsiveness of Superior’s bid was incorrect, which was realized during the discovery process in the bid protest. Once this ultimate question of fact was established, further proceedings before an administrative law judge were unnecessary. As a matter of law, Humana was able to prove by the clearly erroneous standard that the Department’s decision to select the proposal of Superior was inconsistent with the request for proposal. 13. The return of the case to the Department for a final order and a contract award to Humana after the error was established is consistent with State Contracting and Engineering Corporation v. Department of Transportation, 709 So. 2d 607 (Fla. 1* DCA 1998). In State Contracting, the court stated that the object of the de novo proceeding in an award case is to “evaluate the action taken by the agency”. The evaluation was completed in this case, without the need for continued proceedings. 14. In its petition, Humana requested that the Division of Administrative Hearings enter a Recommended Order recommending that the Department award the contract to Humana. Because the case has been relinquished back to the Department, a contract award can be made as part of this final order because it was stipulated that Humana’s bid was responsive and the proposals from the other four vendors were non-responsive. A final order can authorize an award when two or more bids have been received and at least one bid confirms in all material respects to the request for proposals. See Satellite Television Engineering Inc., v. Department of General Services, 522 So. 2d 440 (Fla. 1* DCA 1988); Harris\3M v. Office Sys. Consultants, 533 So.2d 833 (Fla. 1* DCA 1988). 15. All of the vendors, who responded to the request for proposals and were declared non-responsive, had clear points of entry to challenge the decision regarding their respective bids in an administrative hearing. Accordingly, due process requirements for all vendors have been met and further challenges to a contract award to Humana have been waived. They were provided a full and fair opportunity to contest the proposed agency action on any relevant ground before the proposed action of deciaring them non-responsive became final. See Gtech Corp. y. Department of Lottery, 737 So.2d 615 (Fla. 1* DCA 1999), rev. dismissed 822 So.2d 1243 (Fla. 2002). Based upon the foregoing Stipulated Findings of Fact and Conclusions of Law, it is ORDERED: A. The Department will award to Humana, Inc., the proposed contract in accordance with and subject to the requirements of the Request for Proposal No. DMS 13/14-30-REBID for Group Vision Benefits Insurance, and the submissions from Humana, Inc., in response to the request for proposal. B. The Department will return to Humana, Inc., the cashier’s check in the amount of $195,000.00 that accompanied the petition, as required by the request for proposal. Cc. This Final Order shall become effective on the date of filing with the agency clerk of the Department of Management Services. DONE and ORDERED on this 2, day of Ch , 2014. Nichols, Algency Secretary Department of Management Services 4050 Esplanade Way, Suite 285 Tallahassee, Florida 32399
Conclusions On June 12, 2014, Petitioner, Humana, Inc. (Humana), timely filed with the Department of Management Services (Department) its Formal Written Protest and Petition for Administrative Hearing (petition) challenging the Department’s intent to award a contract to Superior Vision Services, Inc. (Superior), based on the evaluation of proposals received in response to the Request for Proposals for Group Vision Benefits Insurance, RFP No. DMS 13/14-030-REBID (Request for Proposal). The petition also sought to award the contract to Humana as the lowest responsive and responsible bidder. On June 20, 2014, the formal protest was referred to the Division of Administrative Hearings for further proceedings. Prior to final hearing scheduled for July 16 and 17, 2014, the parties moved for the entry of an order relinquishing jurisdiction back to the agency and closing the file with the Division of Administrative Hearings. The agreed upon basis for the Motion to Relinquish Jurisdiction was that the intended awardee, Superior, has not been licensed by the Filed August 12, 2014 11:06 AM Division of Administrative Hearings Office of Insurance Regulation for the requisite three year period. This licensure period is a minimum requirement in the Request for Proposals and failure to meet this requirement causes the Department to find that the bid proposal submitted by Superior as non-responsive and therefore disqualified the bid proposal from further consideration. The parties also agreed that as a result of a flawed evaluation regarding the responsiveness of Superior’s proposal, the Department’s intended decision to award the contract to Superior was clearly erroneous and can no longer be maintained. As a result, the administrative law judge granted the Motion on July 16, 2014 and jurisdiction was relinquished back to the Department, pursuant to section: 120.57(i), Florida Statutes, and rule 28-106.204(2), Florida Administrative Code. This matter is before the undersigned for the purpose of issuing a Final Order, in accordance with section 120.57(4), Florida Statutes.
Appeal For This Case Unless expressly waived by a party such as in a stipulation or in other similar forms of settlement, any party substantially affected by this final order may seek judicial review by filing an original notice of appeal with the agency clerk of the department of management services, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate district court of appeal. The notice of appeal must be filed within thirty (30) days of rendition of this order, in accordance with Rule 9.110, Florida Rules of Appellate Procedure, and Section 120.68, Florida Statutes. Certificate of Clerk: Filed in the Office of the Agency Clerk of the Department of Management Services on this _2‘17* day of Suly , 2014. Copies furnished to: Donna Blanton, Esquire Radey Law Firm 301 South Bronough Street, Suite 200 Tallahassee, Florida 32301 Laura M. Dennis, Esquire Radey Law Firm 301 South Bronough Street, Suite 200 Tallahassee, Florida 32301 Veronica Donnelly, Esquire Assistant General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Cynthia S. Tunnicliff, Esquire Pennington, Moore , Wilkinson, Bell and Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302 Howard E. Adams, Esquire Pennington, Moore , Wilkinson, Bell and Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302 Mallory L. Harrell, Esquire Pennington, Moore , Wilkinson, Bell and Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302 Brandice D. Dickson, Esquire Pennington, Moore , Wilkinson, Bell and Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302 Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell and Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302-2095
The Issue 1. Whether the Petitioner (Lanier) has established, by a preponderance of the evidence, that the bid submitted by Intervenor (Dictaphone) is. not materially responsive to the Invitation to Bid (ITB) issued by the Respondent Department of Health and Rehabilitative Services (HRS). 2. Whether Lanier has established, by a preponderance of the evidence, that HRS improperly evaluated the bids. 3. Whether Lanier has established, by a preponderance of the evidence, that the HRS decision to award the contract to Dictaphone is arbitrary and capricious, or is otherwise not authorized by law.
Findings Of Fact I. Background 1. HRS has been using a lanier analog central dictation system for approximately ten years. 2. Prior to April, 1990, HRS determined that it needed to upgrade its central dictation system and decided that the most cost-effective procedure would be to replace the analog system. 3. HRS issued a Request for Information to vendors of dictating equipment and received responses from Lanier, Dictaphone, and one other vendor. 4. In July, 1990, Dictaphone made a presentation to HRS in the HRS Tampa office. This presentation was made based upon Dictaphone’s initiative and Lanier was offered the opportunity to make a presentation also. Lanier did not make a presentation to HRS. an 5. Dorea Sowinski, Operations and Management Consultant for the Office of Disability Determinations (OPDD), prepared an Invitation to Bid (ITB) for a central digital dictation system with the assistance and approval of William Cox, the Director of Purchasing for HRS. 6. A digital dictation system differs from traditional forms of dictation equipment. With a digital dictation system, dictation is converted from analog sound waves into digital impulses. The digital impulses are then stored on a magnetic disk in the recorder. 7. Generally speaking, the use of a digital dictation system requires the use of a telephone system to gain access to the recorder. 8. Ms. Sowinski had no prior experience with digital dictation systems prior to her involvement with this ITB and does not have technical expertise with respect to the configuration, operation and features of a digital dictation system. 9. Mr. Cox, who provided administrative assistance and oversight prior to the issuance of the ITB, also had no previous experience with digital dictation systems. Ii. The ITB 10. The Invitation to Bid No. 91-15BC for a digital dictation system was issued on October 8, 1990. The purpose of the ITB. is to acquire a digital dictation system for use within HRS offices statewide. 11. The special conditions of the ITB include the following relevant and material requirements: 5. Method of Cost Presentation: A separate cost presentation describing the proposal system/equipment for each OPDD location should be submitted. In addition, a separate cost presentation listing optional features and equipment should be submitted. 13. Evaluation and Award: Each bidder shall supply a separate bid price for each proposed system by location. Consideration of bid prices shall include any additional expense for telephone lines to support the system. The bidder with the lowest price and who meets all other requirements of this invitation to bid will win the award. (emphasis in original) 15. Bid Prices: Bid prices shall be submitted on the Summary Bid Pricing Sheet shown as Attachment D of this invitation. The bid prices must be firm for a period of one year (12 calendar months) from the date of contract award). The prices bid must include all delivery, installation, and testing of equipment. Included with submittal of the Summary Bid Pricing Sheet, bidder must provide a description of the offered equipment, ail other necessary items to be provided for each location, the amount for the offered trade in allowance, and any ongoing costs to OPDD after installations. In addition, the cost of maintenance for the entire system should be broken out on the Summary Bid Pricing Sheet. Maintenance services must be provided by the bidder’s company, and cost must include all parts, labor and related costs for the services. (Lanier, Ex. 1.) 12. The relevant, material technical specifications of the ITB are found in paragraph 18 and are outlined as follows: 18. Technical Specifications: The Office of Disability Determinations (OPDD) requires a he statewide telephone accessible digital dicta- tion system for processing medical documenta- tion, disability insurance adjudications, letters and general correspondence. The system must be capable of producing manage- ment reports on total workload, record of dictation and transcription production, and work location in the system. The system must have upgrade capabilities with expansion by ports and hours storage for staff increases. It must be a unified system with capabilities and interoffice communication. In the event one office system fails, the ability to access the system for dictation or trans- eription from another location by dialing into the system without specific unit assignment. Proposals must be for all new equipment. Configurations of systems/equipment for each geographical location must be fully described and justified, and must meet the following minimum requirements: A. Ports for dictation/transcription which optimize system usage as listed on Attachment B. B. Storage capabilities as listed on Attachment B. I. Remote dictation/transcription capa- bilities; Ability to access systems from locations other than installation location for use in the event of one system’s failure. Oo. The system must provide a management console with visual prompts to assist users for each location. R. The system must provide for remote diagnostics. System options: Bidder should include in the bid submittal any optional features/equipment which enhance the system’s function. These options should an be submitted with prices on a separate bid sheet for each location. (Lanier, Ex. 1, Special Bid Conditions and Technical Specifications, pp. 9-10, paragraph 18.) 13. As a result of questions from both Lanier and Dictaphone, HRS issued Clarification #1 to the ITB on October 15, 1990. Addendum #1 to the ITB on October 18, 1990, and Addendum #2 to the ITB on October 22, 1990.+ 14. Addendum #1 to the ITB provides as follows: The purpose of this Addendum #1 to HRS Bid 91-15BC is to revise information contained in item numbers 15 and 18 as follows: Item 15: 1. Paragraph Number two (2) is revised to read as follows: Included with submittal of the Summary Bid Pricing Sheet, bidder must provide a description of the offered equipment to include model number and company literature, all other necessary items to be provided for each location, the amount for the offered trade in allowance, and any ongoing costs after installation. 1 Mr. MacDonald, Lanier’s Eastern Region Systems Manager, testified that after the ITB was issued and prior to submission of bids, he engaged in a telephone conversation with Mrs. Sowinski regarding whether additional expense for telephone lines to support the system should be itemized (i.e., separately stated) in the bids. Mr. MacDonald does not remember the exact words Ms. Sowinski used in the conversation but testified that the gist of the conversation was that a separation of costs was required. (MacDonald, Vol. III, pp. 281-283.) Ms. Sowinski testified that bidders were not required to submit a separate itemization for such costs. (Sowinski, Vol. I, pp. 56-57 and 86.) oe Item 18: 1. Paragraph Number two (2) is revised to read as follows: Proposals must be for all new equipment. Configurations of systems/equipment for each geographical location must be fully. - described and ‘justified. Bidders must meet all technical specifications and minimum requirements and all line items, A through R, must be fully explained and described in detailed (sic). 2. Line Item A is revised to read as follows: Parts for dictation/transcription which optimize system usage as listed in Attachment B. See Attachment A for number of transcribe stations required per location. 7. Line Item R is revised to read as follows: The system must provide for on line or self diagnostics and remote diagnostics. The ability of the system to detect a problem and automatically notify a service representative. Upon notification, the ability of the representative to examine/repair the problem without traveling to the installation location. All other bid terms and conditions remain the same. (Lanier, Ex. 2, pp. 2-3.) 15. Addendum #2 to the ITB added the following footnote to the Minimum Requirements for each location’s Ports and Hours Storage contained in Attachment B to the ITB: *Note: System/equipment configurations offered could minimize the number of parts/hours needed. Bidders offering alternative configurations must clearly indicate the variations and must | fully : describe the equipment, including model number and company literature, and ‘justify the configuration offered. The evaluation committee is not bound to accept any variation which, in its opinion, is not in the best interest of the Office of Disability Determinations. (Lanier, Ex. 2, p. 5.) IIL. Bid Opening and Evaluation 16. The bids were opened at 2:05 p.m., on Monday, October 29, 1990, by William Cox, Purchasing Director of HRS. Only two bidders submitted bids in response to the ITB, Dictaphone and Lanier. Both Lanier and Dictaphone submitted timely bids. 17. The bids were then reviewed by a three member Evaluation Committee during one meeting which lasted approximately three hours to three and one-half hours. 18. The individuals present. at the Evaluation Committee meeting were the committee, Ms. Mary Simmons, Ms. Beth Bruce, and Ron Atchinson and Ms. Dorea Sowinski who served as bid officer. 19. As bid officer, Ms. Sowinski acted as the coordinator of the Evaluation Committee and as liaison to the HRS Purchasing Director, Mr. Cox. Ms. Sowinski did not conduct a separate and independent evaluation of the bids. 20. The members of the Evaluation Committee were not technical experts on the configuration and features of digital dictation systems. 21. Ms. Mary Simmons, a member of the Evaluation Committee, is the supervisor of the clerical staff that works on 10 all the dictating equipment and correspondence that leaves the Office of Disability Determination of HRS. Ms. Simmons has never dealt with digital dictation systems. 22. Ms. Beth Bruce has been an employee of HRS almost 17 years. Ms. Bruce has extensive experience in working with dictation equipment in HRS. Ms. Bruce has no technical expertise in dictation systems. 23. The Bid Officer, Dorea Sowinski, has ten years experience in purchasing and procuring equipment for HRS. 24, William Cox has over 20 years experience in procurement. Mr. Cox has extensive experience in drafting Invitations to Bid and reviewing many more. 25. The Evaluation Committee first reviewed Lanier’s bid. The committee found that Lanier had failed to provide equipment model numbers for system equipment components (other than the recorder) and failed to provide sufficient explanation and description of equipment and its capabilities as required by the ITB. The Evaluation Committee therefore rejected the Lanier bid as nonresponsive. 26. Although Ms. Sowinski stated that during the Evaluation Committee Meeting she did call Lanier regarding certain aspects of the Lanier bid, she did not attempt to obtain further information or clarification from Lanier because the nonresponsive aspects of Lanier’s bid went directly to material requirements of the ITB. 27. After determining that Lanier’s bid was not responsive to the ITB, the Evaluation Committee moved on to the Dictaphone bid. 11 28. There is a conflict in testimony regarding one aspect of the evaluation process. Mary Simmons testified that the committee compared the responsiveness of the Dictaphone bid to that of the Lanier bid. Both Beth Bruce and Ms. Sowinski testified that the Evaluation Committee first compared the Lanier bid to the ITB and then compared the Dictaphone bid to the ITB. 29. Lanier has failed to prove, by a preponderance of the evidence, that the Evaluation Committee improperly compared the Dictaphone bid to the Lanier bid, as opposed to comparing both responses to the ITB. Overall, the testimony of Ms. Bruce and Ms. Sowinski is more convincing on this point. 30. The Committee examined Dictaphone’s Summary Bid Pricing Sheets and concluded that if Dictaphone’s pricing included all costs to HRS, an award should be made to Dictaphone. 31. On the following day, Ms. Sowinski discussed the Evaluation Committee’s conclusions and remaining questions concerning Dictaphone’s pricing with Mr. Cox. Mr. Cox then called a Dictaphone representative and assured himself that the prices shown in the bid covered everything relative to purchasing and installing necessary equipment, implementing the dictation system and training personnel to operate the system and that there would be no additional charges not covered in the bid. This telephone conversation with a Dictaphone representative occurred after the Evaluation Committee had rejected the Lanier bid as being materially non-responsive in several aspects. 32. Following Mr. Cox’s telephone conversation with the Dictaphone representatives, Ms. Sowinski- called the .three 12 members of the Evaluation Committee to convey the information regarding Dictaphone’s pricing sheets and to confirm the committee’s October 29, 1990 recommendation to award the bid to Dictaphone. 33. On October 31, 1990, Ms. Sowinski prepared and issued the Evaluation Committee’s written Recommendation of Award. The Recommendation stated that the Dictaphone bid was complete and recommended that HRS "accept a single responsive bid and award the contract to Dictaphone Corporation." 34. On November 1, 1990, HRS posted a Bid Tabulation recommending the award of the contract pursuant to the ITB to Dictaphone as the lowest responsive bidder. 35. Lanier has failed to prove, by a preponderance of the evidence, that the Evaluation Committee’s evaluation of the bids was arbitrary, capricious, or not rationally related to the public policy objectives in the procurement process. 36. Lanier has failed to prove, by a preponderance of the evidence, that the Evaluation Committee was biased in its evaluation of the bids. IV. Dictaphone’s Bid 37. In Addendum #1 to the ITB, paragraph number two of Item 18 is xrevised and requires that "Configurations of systems/equipment for each geographical location must be fully described and justified." 38. In challenging the Dictaphone response to the ITB, Lanier offered the testimony of Mr. John MacDonald, the Eastern Regional Systems Manager for Lanier. Mr. MacDonald was accepted 13 as a witness qualified to render opinions in the area of design, implementation, and operation of digital dictation systems. 39. Mr. MacDonald testified that “system configuration," “simultaneous activities," and "telephone connectivity" are terms commonly used in the field of designing and implementing digital dictation systems. 40. According to Mr. MacDonald, the term "system configuration" identifies how a digital dictation system needs to be built, how many individuals are going to dictate and transcribe into a system and how individuals are going to transcribe from that system so that a determination can be made as to the number of simultaneous activities or ports within the system. 41. To rebut the testimony of Mr. MacDonald, Dictaphone presented the testimony of Mr. James Montali, District Manager for Dictaphone. Over the objection of Lanier, Mr. Montali was allowed to express opinions with respect to the terminology and terms of art used in the general marketing and sale of central dictation systems. 42. Mr. Montali testified that the term "system configuration" relates to a description of the components of a dictation system which is presented to a client. 43. Mr. MacDonald’s testimony centered, in significant part, on the failure of Dictaphone to specifically describe "telephone connectivity" to: (1) achieve access to the minimun number of ports required by the ITB; (2) provide remote dictation and transcription capability for all dictators--and -transcribers at each location; and (3) provide remote: diagnostics. 2 : 14 at) 44. Mr. MacDonald testified extensively as to the technical aspects of how digital dictation systems are built, how such systems are connected and how the systems work. 45. The ITB in this case does not require that bids submitted contain descriptions of how the proposed digital dictation system is built, the technical aspects of how components of the system are connected, or the technical aspects of how the system works. 46. The ITB does not require a bidder to provide a definitive description of "telephone connectivity." 47. The ITB does not require that the system handle a minimum number of simultaneous activities. | 48. In a dictation system such as the one described in the ITB, each recorder has a certain number of ports for dictating and transcribing depending on the needs of the system purchaser. Each port in the recorder allows one dictating or transcribing activity. 49, There are also ports or channels in the telephone system which interface with the recorder. In order to provide access to a designated number of ports, there needs to he sufficient telephone equipment in the form of ports in the existing telephone systen. 50. Attachment B of Addendum #2 of the ITB establishes minimum ports and storage hours required for each location in the statewide HRS digital dictation system. 51. The system that Dictaphone bid shares the existing telephone lines and ports at HRS and thereby includes sufficient 15 telephone lines to connect users of the system to the minimum number of ports required for the recorders in all locations as required by the ITB. 52. The ITB does not. require that the bidder provide dedicated lines to operate the proposed system. The ITB does not preclude or prohibit a bidder from using the existing HRS telephone lines in installing the system. 53. The technical specifications in the ITB require that the system bid provide remote dictation and transcription capabilities as well as remote diagnostics. 54. Remote dictation involves dictation by an individual in one location (e.g. Miami) which is transmitted by a telephone line into the system and recorder located at a different location (e.g. Orlando). Remote transcription involves the same activity for a transcriber. 55. Remote diagnostics involves the capability to ascertain problems or malfunctions in a recorder from an off premises location through the use of telephone lines. 56. Dictaphone’s bid utilizes existing telephone lines at HRS and thus provides for remote diagnostics of each recorder throughout the state. 57. Dictaphone’s bid adequately responds to Item 18(R) of the ITB. 58. The ITB does not require 24 hour on Iline diagnostics. 59. Dictaphone’s bid includes Summary Bid Pricing Sheets which reflect all costs to HRS for equipment and 16 peripheral equipment associated with providing the digital dictation system described in its bid. 60. The system described in Dictaphone’s bid does not require the installation of telephone lines in addition to those already existing in the HRS locations reflected in the bid. 61. The Dictaphone bid describes and justifies its proposed system and equipment configuration for each location as required by Item No. 18 of the ITB as amended. 62. A system capable of using the existing ports and telephone lines within the present HRS system saves HRS the cost of installing additional lines (and the ongoing monthly charges for such lines). . 63. Addendum #2 to the ITB contains a note which permits a bidder to offer system/equipment configurations which minimize the number of ports and storage hours otherwise required. 64. The Dictaphone bid offers such an optional configuration by proposing to combine the Central Area I and Tallahassee locations. 65. Dictaphone’s optional system for the combined Central Area I and Tallahassee location was designed to minimize the number of ports and storage hours as permitted in Addendum #2 to the ITB. 66. Dictaphone’s optional bid for the combined Central Area I and Tallahassee locations provides adequate justification for the optional configuration in accordance with Attachment B as revised in Addendum #2 to the ITB. 17 67. Dictaphone’s bid explains and describes. its system's storage capabilities as required by Addendum #2, Attachment B to the ITB. Lanier has failed to prove, by a preponderance of the evidence, . that Dictaphone’s bid is materially nonresponsive to Item 18B of the ITB as amended. 68. Item 18-0 of the ITB requires that the system provide a management console with visual prompts, to assist users at each location. The Dictaphone bid responds to Item 18-0 of the ITB on pp. 71-74, and 127-136 of the bid. On page 71 of its bid, Dictaphone represents that its bid meets the specification of Item 18-O of the ITB but does not state that its management console provides visual prompts. There is a depiction of a Management console on page 132 of the bid, however. The copy provided in Lanier’s Exhibit 4 is of poor quality. Testimony at the final hearing established that this depiction indicated that the console provided visual prompts. Based upon this information in the Dictaphone bid, the bid coordinator and Evaluation Committee determined that Dictaphone’s bid was materially responsive to the "visual prompts" aspect of Item 18-O of the ITB. Lanier has failed to prove, by a preponderance of the evidence, that the Dictaphone bid is materially nonresponsive to Item 18-0 of the ITB. 69. The costs to HRS for any long distance telephone charges for use of the remote dictation, transcription, and diagnostics features of the systen bid by Dictaphone are not included in the Dictaphone bid. Due to varying toll charges depending on such variables as location, the telephone company 18 used, how long the calls last, and the number of calls made, it would be impossible to accurately include such costs in Dictaphone’s bid. 70. The Dictaphone bid does not provide a separate breakdown of the cost of peripheral telephone equipment necessary to support its system but such costs are included in Dictaphone’s total bid price. 71. Dictaphone’s bid includes all the costs of peripheral equipment associated with providing the digital dictation system described in its bid. 72. The ITB does not require a bidder to break out or itemize the costs for peripheral equipment in the bidder's Summary Bid Pricing Sheet. 73. Dictaphone’s proposed digital dictation system will perform as described in its bid in accordance with the ITB. 74. \Lanier has failed to prove, by a preponderance of the evidence that the Dictaphone bid is not materially responsive to any relevant provision of the ITB which is at issue in this proceeding. Vv. Costs Incurred by HRS 75. On February 18, 1991, HRS filed its Corrected Proposed Final Order with Attachments outlining its costs in this proceeding which are recoverable pursuant to Section 287.042(c), Florida Statutes. Recoverable costs incurred by HRS in this proceeding are as follows: 19 Transcripts and Court Reporters Hearing $ 815.00 Sowinski $ 219.65 William Cox $ 40.70 John MacDonald/James Montali $ 134.35 George Hume/John MacDonald § 221.05 Art DeWitt $ 71.50 TOTAL $1,502.25 Employee Hours William F. Cox 12 hours at $19.56/hr. = $234.72.
Conclusions For Petitioner Lanier: Kenneth A. Hoffman, Esquire MESSER, VICKERS, CAPARELLO, FRENCH & MADSEN Post Office Box 1876 Tallahassee, FL 32302-1876 For Respondent HRS: Robert L. Powell, Esquire Department of Health and Rehabilitative Services Building One, Room 407 1323 Winewood Boulevard Tallahassee, FL 32399-0700 For Intervenor Daniel Marino, Esquire Dictaphone: SEYFPARTH, SHAW, FAIRWEATHER & GERALDSON Suite 500 815 Connecticut Avenue, N.W. Washington, D.C. 20006-4004
Recommendation Based on the forgoing, it is recommended that the Respondent enter a Final Order dismissing Lanier’s protest of the award of Bid Number 91-15BC to Dictaphone. DONE and ORDERED this ,>H. day of March, 1991, in Tallahassee, Florida. Ji aS W ORK, Hearing Officer DivisionmOf Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 904/488-9675 31 FILED with the Clerk of the Division of Administrative Hearings this [+4 day of March, 1991. Copies furnished: Kenneth A. Hoffman, Esquire MESSER, VICKERS, CAPARELLO, FRENCH & MADSEN First Florida Bank Building, Suite 701 215 South Monroe Street Post Office Box 1876 Tallahassee, Florida 32302-1876 Robert L. Powell, Esquire Department of Health and Rehabilitative Services Building One, Room 407 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Daniel Marino, Esquire SEYFARTH, SHAW, FAIRWEATHER & GERALDSON Suite 500 815 Connecticut Avenue, Northwest Washington, D.C. 20006-4004 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0500 Case No. 90-7201BID 32 12. 13-15. 16-24. 25. 26-27. 28. 29-36. 37-39. 40. 41. APPENDIX A TO RECOMMENDED ORDER CASE NO. 90-7201BID Rulings on Petitioner Lanier’s Findings of Fact Proposed. findings of fact in paragraphs 1 to 9 are adopted in material part in the Recommended Order. Proposed findings of fact are cumulative and not necessary to the conclusions reached in the Recommended Order. The proposed findings of fact as stated in paragraph 12 are not supported by the record and are rejected. Proposed findings of fact in paragraphs 13 to 15 are addressed in footnote 1 on page 8 of the Recommended Order. Proposed findings of fact contained in paragraph 16 are accepted in material part in the Recommended Order. Proposed findings of fact in paragraph 25 are adopted to the extent such facts are relevant within the operative pleadings filed. Proposed findings of fact in paragraphs 26 and 27 are adopted in material part in the Recommended Order. The proposed finding of fact in paragraph 28 is rejected because it is not supported by the record. The findings of fact proposed in paragraphs 29-36 are essentially argument which is addressed in the Conclusion of Law in the Recommended Order. Proposed findings of fact in paragraph 35 are further discussed in Appendix B. Proposed findings of, fact in paragraphs 37-39 are adopted in material part in the Recommended Order. The proposed finding of fact contained in paragraph 40 is essentially argument and is discussed in the Conclusions of Law in the Recommended Order. Proposed finding of fact in paragraph 41 does not accurately state the record as sighted. Mr. MacDonald was accepted as qualified to express opinions in the areas of design, implementation and operation of digital dictation systems. The record also reflects that Mr. Montali is qualified to express certain opinions with regard to dictation systems and his testimony was accepted in rebuttal to certain aspects of Mr. MacDonald’s testimony. 33 42-65. Proposed findings of fact in paragraphs 42-65 are adopted in the Recommended Order only to the extent that such facts are relevant and necessary to the conclusions reached. The issue of the necessity for the technical detail contained in the testimony cited is discussed in the Conclusions of Law in the Recommended Order. 66-68. The proposed findings of fact in paragraphs 66-68 are adopted in the Recommended Order only to the extent such facts are relevant. To the extent that the proposed findings of fact in paragraphs 66-68 are argument, such arguments are discussed in the Conclusions of Law in the Recommended Order. The proposed findings of fact in paragraph 68 are further discussed in paragraph 69 of the Recommended Order. 69-73. Findings of fact proposed in paragraphs 69-73 are rejected as not relevant. The requirements are discussed for ports and storage hours pursuant to Addendum 2 to the ITB in paragraphs 63-65 of the Recommended Order. These issues are further addressed in the Conclusions of Law in the Recommended Order. 74. The proposed findings of fact in paragraph 74 are not supported by the evidence. 75. The proposed findings of fact in paragraph 75 are adopted to the extent material in paragraph 68 of the Recommended Order. Rulings on Respondent HRS’ Findings of Fact (As Proposed in the HRS Corrected Proposed Recommended Order) 1-12. The proposed findings of fact in paragraphs 1 to 12 are adopted in material part in the Recommended Order. 13. Proposed finding of fact in paragraph 13 is rejected as not necessary to the conclusions reached. 14-23. Proposed findings of fact in paragraphs 14 to 23 are adopted in material part in the Recommended Order. 24. The proposed finding of fact in paragraph 24 is not necessary to the conclusions reached. 25-29. The proposed findings of fact in paragraphs 25 ta 29 are adopted in material part in the Recommended Order. 30-31. The proposed findings of fact in paragraphs 30 and 31 are rejected as stated. These proposed findings of fact are addressed in paragraphs 35 and 36 in the Recommended Order. a 34 32-37. The proposed findings of fact in paragraphs 32 to 37 are adopted in material part in the Recommended Order. 38-39. The proposed findings of fact in paragraphs 38 and 39 are addressed in the Statement of Issues portion of the Recommended Order. 40. The proposed finding of fact in paragraph 40 is addressed in paragraph 74 of the Recommended Order. 41-47. The proposed findings of fact in paragraphs 41 to 47 are adopted in material part in the Recommended Order. 48-49. The proposed findings of fact in paragraphs 48 and 49 are adopted, in material part, in paragraph 51 of the Recommended Order. 50. Proposed finding of fact in paragraph 50 is addressed in paragraph 67 of the Recommended Order. 51-55. Proposed findings of fact in paragraphs 51 to 55 are adopted in material part in the Recommended Order. 56. Proposed finding of fact in paragraph 56 is subordinate to the conclusions reached in the Recommended Order. Rulings on Intervenor Dictaphone’s Findings of Fact 1-3. The proposed findings of fact in paragraphs 1 to 3 are not necessary to the conclusions reached in the Recommended Order. 4-17. The proposed findings. of fact in paragraphs 4 to 17 are adopted in material part in the Recommended Order. 18. The proposed finding of fact in paragraph 18 is not necessary to the conclusions reached in the Recommended Order. 19-26. The proposed findings of fact in paragraphs 19 to 26 are adopted in material part in the Recommended Order. 27. The proposed finding of fact in paragraph 27 is not necessary to the conclusions reached. 28-60. The proposed findings of fact in paragraphs 28 to 60 are adopted in material part in the Recommended Order. 35 APPENDIX B TO RECOMMENDED ORDER CASE NO. 90-720i1BID Lanier also seeks to raise the issue of Dictaphone’s response to Paragraph 18 (G) of the ITB. Lanier concedes that it failed to raise the issue in its pleadings. Instead, Lanier cites Rule 1.190 (b), Fla. R. Civ. P. as authority to amend its pleadings to conform to the evidence. Lanier adduced testimony regarding this portion of the ITB in the first day of the final hearing. At this time in the proceedings Lanier was still maintaining that it bid was materially responsive. The reference to this item in the ITB came about by comparison of the respective responses in the bids of Lanier and Dictaphone at a time in the proceedings when such a comparison was relevant. Lanier argues that there was no objection at that time and apparently contends that Dictaphone and HRS thereby allow the issue to be tried by "implied consent." The failure of a party to object to testimony which may touch upon an unpleaded claim does not amount to consent to trial simply because such testimony might be pertinent to a different issue that is pled. National Aircraft Services, Inc. v. Aeroserv International, Inc., 544 So.2d 1063, 1064 (Fla. 3d DCA 1989). On the second day of the hearing, after Lanier had stipulated that its bid was not responsive, Dictaphone raised a timely objection to testimony regarding paragraph 18(G) on the basis of relevance. The objection was sustained. Dictaphone also objected to Lanier’s motion to amend its pleadings regarding Paragraph 18(G) on the grounds of 36 An prejudice. In an accelerated proceeding such as this, time for discovery is limited and a failure to limit issues tried to the issues properly pled is important to avoid "trial by ambush." Based on the foregoing reasons, attempt to argue this issue in its proposed recommended order is inappropriate and the issue is not considered in the resolution of this dispute. See, Rule 22I1-6.004(4), Florida Administrative Code. 37
Findings Of Fact Petitioner is a permanent Career Service employee of the Department of Offender Rehabilitation (DOR), State of Florida, who was serving as a Planner and Evaluator II, Class Code 5291, Position No. 04038, Planning and Development Section, Bureau of Planning, Research and Statistics, in July, 1977. (Composite Exhibit 3) The 1977 Florida Legislature reduced the number of authorized positions in the DOR through "productivity adjustment," effective July 1, 1977. By letter of July 26, 1977, the Secretary of the DOR requested the Secretary of Administration to approve a statewide competitive area for the positions to be abolished. By letter of July 27, the Secretary of Administration approved the requested competitive area to include all organizational units on a statewide basis within the Department. At that time, the DOR had four positions in the class of Planner and Evaluator II. These were then held by Petitioner, Sunil Nath, Position 00053, Edward M. Teuton, Position 07974, and Bill C. Schnitzer, Position Number 03756. All of these positions except Position 07974 were abolished as a result of the legislative mandate. The incumbents of the four positions met with Mr. James A. Ball, DOR Personnel Officer, on or about July 28, 1977. At that time, he informed them of the position deletions and consequent necessary layoffs. Ball indicated in his comments to the group that the Petitioner would not be adversely affected because he had the greatest number of retention points of the four individuals. It was further indicated by Ball to Petitioner at this meeting and in later discussions that Petitioner would assume the duties of the remaining Position 07974 and proceed to "phase in" to the job. By letters dated August 5, 1977, Nath, Teuton and Schnitzer were notified by the Secretary of the DOR of their layoff under State Personnel Rule 22A-7.11, and advised of their options and rights under pertinent law. (Composite Exhibits 1-4, Testimony of Ball, Fitzgibbon) By letter of August 31, 1977, to the State Personnel Director, the Secretary of the DOR requested that selective competition be approved under State Personnel Rule 22A-7.11(3) for the position of Planner and Evaluator II, DOR, Class Code 5291, Position Number 07974, among persons affected by layoff in the Department. The letter stated: The specific background necessary to perform the job requirements of this unique position of Mutual Participation Program Administrator are reflected below and relate directly to the duties of the position as reflected on the official Position Description, a copy of which is attached. The letter further indicated the particular qualifications for the position. The Position Description attached to the letter set forth the duties and responsibilities of the job, but did not specify particular qualifications required of the incumbent. Conley M. Kennison, State Personnel Director, in a letter of September 8, 1977, approved selective competition for the position in question "In accordance with Section 22A-7.11(3), Personnel Rules and Regulations, F.A.C., and based on the specific qualifications required of this position to function as the coordinator for the Mutual Participation Program as substantiated by the Position Description you submitted." The concept of selective competition for a position arises only in layoff situations. Under normal layoff procedures, an employee's number of retention points computed under Rule 22A-7.11 determines priority for available remaining positions. However, if selective competition is used, only those employees possessing the special qualifications for a particular position are eligible to compete therefor, and if several have the necessary qualifications, the employee with the highest retention points is selected. Approval for selective competition is based on special qualifications that must be derived from the official Position Description. In such cases, an economic impact statement is not prepared nor are the normal procedures for promulgation of a rule. Neither are Position Descriptions promulgated as rules under Chapter 120, Florida Statutes. Minimum qualifications for a particular class of positions are set forth in separate documents called Class Specifications. Position Descriptions are prepared by the affected agency and approved by the Department of Administration. In the instant case, the Deputy State Personnel Director approved selective competition for Position 07974 based upon qualifications considered necessary from the duties and responsibilities shown in the Position Description. (Composite Exhibit 2, Testimony of Dean) After approval had been obtained for selective competition for Position 07974, it was determined by DOR that only Edward M. Teuton, the incumbent of that position, possessed the necessary qualifications. As a result, Petitioner, who had no prior knowledge that selective competition was to be applied, was orally informed by his supervisor on September 13 or 14 that he would not receive the position and that Teuton would retain the same. On September 19, he received a letter dated September 14, 1977, from the Secretary of the DOR, which provided formal notice of layoff, and informed him of his right to appeal such action and to request demotion or reassignment to a position for which he might be eligible. He thereafter appealed the layoff and requested demotion in lieu thereof based on information received from the Department Personnel Officer who told him that he would have to take such action in order to retain state employment. (Composite Exhibit 4, Testimony of Petitioner)
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on October 5, 2007.
Findings Of Fact Petitioner is an African-American female who was hired by Respondent as a temporary employee on January 17, 2005. She continued to be employed by Respondent until she resigned her position on November 7, 2007. Respondent, PPS World Medical (PPS), is an employer within the meaning of the Florida Civil Rights Act. PPS is a distributor of medical supplies from manufacturers to physicians’ offices. Crystal Marx interviewed Petitioner and hired her as a temporary employee in January 2005. Petitioner worked for several months as a temporary employee, and her performance was very good. Ms. Marx recommended to Renee Placette that Petitioner be hired as a regular, full-time employee. Ms. Placette had an opportunity to observe Petitioner’s performance as a temporary employee. Ms. Placette made the final decision to hire Petitioner in a full-time position in May 2006 as a supply chain expediter. Ms. Marx and Ms. Placette are Caucasian females. After three months of employment, Ms. Marx decided to conduct a 90-day performance review of Petitioner. It was not standard procedure in the department where Petitioner worked to receive a 90-day review. However, Ms. Marx made the decision to conduct the review to let Petitioner know about some concerns so Petitioner would have an opportunity to make improvements before her annual review. In a meeting to discuss the 90-day review, Ms. Marx addressed the following issues with Petitioner: work that was not being completed correctly which resulted in Ms. Marx's receiving e-mails concerning mistakes Petitioner was making; issues Petitioner was having with her coworkers; and Petitioner’s practice of skipping lunch and leaving an hour early without prior approval. The score received by Petitioner on her 90-day review did not affect Petitioner’s compensation in any way. When initially hired, Ms. Marx was Petitioner’s direct supervisor. At some point in time, Patricia Barnard was brought in as another layer of supervision. Ms. Barnard worked for Ms. Marx. For a period of time, Petitioner e-mailed Ms. Barnard when she went to, and returned from, her 15-minute break. This issue initially arose when several people asked Ms. Barnard where Petitioner was when she was away on her break. Ms. Barnard discussed this with Petitioner. Petitioner then suggested that she e-mail Ms. Barnard when she left on her break and upon her return. Ms. Barnard did not require Petitioner to do this. When Petitioner stopped sending these e-mails, Ms. Barnard did not instruct Petitioner to resume sending the e-mails or take any action regarding the e-mails. During a period of time when Petitioner was on medical leave, two accounts were reassigned to other employees while she was away. One of the accounts was assigned to another employee, Tracy Hundley, who is African-American. After that, Ms. Barnard and Ms. Marx took over the account for a while, later assigning it to Tara Nelson, another African-American employee. In any event, Petitioner did not receive any extra pay when she handled those accounts, and did not receive any cut in pay when these accounts were reassigned to others. On November 17, 2006, Petitioner received a Documented Verbal Warning for failure to properly notify management of her absence. On August 15, 2007, Petitioner received a Final Written Warning for unprofessional and inappropriate behavior towards an employee relations representative. On May 8, 2007, Ms. Barnard completed a job performance annual review of Petitioner. On her annual review, Petitioner received a score of 80, which is an average score. Ms. Marx approved the review as prepared by Ms. Barnard. Allegations of failure to promote Petitioner applied for the position of “WM Supply Chain Procurement Specialist” in November 2006. Petitioner again applied for the Procurement Specialist position in May 2007. Petitioner received an e-mail from Ms. Placette advising her that three people were hired with “a lot of buying experience.” In July 2007, Petitioner applied for the position of IT Governance Process Analyst. She received a letter from the IT Governance Process Manager of PSS which informed her that she was not selected for the position. There is nothing in the record establishing the qualifications required for these positions, whether Petitioner met these qualifications, or even whether these positions could be considered as promotions. Further, no competent evidence was presented as to the identity, qualifications, or race of the persons who were hired into these positions. Other allegations Petitioner also alleged that she was paid less then what had been promised, $11.54 an hour, in her letter offering employment. Petitioner contends that she was instead paid one cent an hour less, i.e., $11.53 per hour. The official pay stub reflects her rate of pay to have been $11.54 per hour. Further, Petitioner alleged that she was, at some point, given a new wireless headset which was replaced by a used one that she described as “yucky.” Employees who work in “confirmation” received wireless headsets because those employees needed to be able to go to the fax machine and the printer while on the telephone with a vendor. Petitioner was an “expediter” not a “confirmation” person, and did not need to be able to go to the fax machine or the printer as often while on the telephone. Petitioner resigned her position on November 2, 2007. At the time she resigned, she informed her co-workers that she owned her own t-shirt business and resigned to run her own company full time. At hearing, Petitioner asserted that she resigned because there was a “different atmosphere,” that she was stressed, and could not work there anymore. There was no competent evidence presented that establishes or even suggests that any employment action taken by Respondent toward Petitioner was based on race.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 21st day of August, 2008, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 21st day of August, 2008.
