The Issue The issue in this case is whether the proposed amendments to existing Rule 61A-5.0105, Florida Administrative Code, constitute a valid exercise of delegated legislative authority.
Findings Of Fact The Division, on October 11, 2002, in Volume 28, No. 41 of the Florida Administrative Weekly noticed a proposed amendment to Rule 61A-5.0105, Florida Administrative Code, concerning the conduct of Section 561.19(2), Florida Statutes, in double random selection drawings for revoked pre-1981 quota alcoholic beverage licenses. The proposed amendment states, in the portion relevant to this challenge, as follows: The division will follow the below listed procedures when entry forms are accepted for issuance of new state liquor licenses authorized by Florida Law, when they become available by reason of an increase in the population of a county or city, or a county voting to permit the sale of intoxicating beverages when such sale had previously been prohibited, or by revocation of a license under 565.02(1)(a)-(f), inclusive issued by Special Act prior to 1981 quota:1 Respondent cited as specific authority for the rule its general rulemaking powers contained in Section 561.11, Florida Statutes. The laws implemented by the proposed amendment included, in relevant part, Sections 561.19 and 561.20, Florida Statutes. Section 561.19, Florida Statutes, is the statutory authority for granting or denying applications for all liquor licenses and quota liquor licenses. Section 561.19(2)(a), Florida Statutes, establishes the double random selection drawing process for quota liquor licenses. Section 561.19, Florida Statutes, states in relevant part: Upon the completion of the investigation of an application, the division shall approve or disapprove the application. If approved, the license shall be issued upon payment to the division of the license tax hereinafter provided. (2)(a) When beverage licenses become available by reason of an increase in the population of a county or by reason of a county permitting the sale of intoxicating beverages when such sale had been prohibited, the division, if there are more applicants than the number of available licenses, shall provide a method of double random selection by public drawing to determine which applicants shall be considered for issuance of licenses. The double random selection drawing method shall allow each applicant whose application is complete and does not disclose on its face any matter rendering the applicant ineligible an equal opportunity of obtaining an available license. After all applications are filed with the director, the director shall then determine by random selection drawing the order in which each applicant's name shall be matched with a number selected by random drawing, and that number shall determine the order in which the applicant will be considered for a license. (Emphasis supplied.) In general, quota liquor licenses are issued in a limited number based on the population of a county or the increase, if any, in the population of a county. The licenses can also be issued when a county initially changes from a county which does not permit the sale of intoxicating liquor to one that does permit the sale of intoxicating liquor. The quota license is the only liquor license which is numerically limited; all other types of liquor licenses are available without numerical limitation. Because quota licenses are numerically limited, applications for such licenses can exceed the number of available licenses. Prior to 1981, quota licenses were issued based on an application. The evidence did not reveal the method used by the Division or the Governor in awarding quota licenses to qualified applicants when the applications for such exceeded the number of available licenses. Clearly, such decisions were made since quota licenses were issued prior to 1981. The evidence did indicate that in 1981 the Governor did not wish to be involved in the process of determining which applicants received quota liquor licenses and developed legislation establishing a double random drawing process. The legislation eventually became Section 561.19(2)(a), Florida Statutes. At some point, the number of licenses which could be issued was reduced from one license per 2,500 residents in a county to one license per 7,500 residents in a county. See Section 561.20, Florida Statutes (2002). Moreover, the Beverage Law comprised of Chapters 561, 562, 563, 564, 565, 567 and 568, Florida Statutes, establishes that quota licenses exist as un-issued licenses at the time the statutory criteria by county vote or population are met. See Beverly v. Division of Beverages, 282 So. 2d 657 (Fla. 1st DCA 1973). Indeed, the Division has the duty to issue these licenses to qualified applicants once they become available for issuance. The effect of revocation of a license is to revoke the current licensee's privilege to use a certain license at a certain location. Revocation under the Beverage Law simply returns a license to the possession of Respondent which again has the duty to issue the license if the population of the county supports its re-issuance. See Section 561.20(3), Florida Statutes, and Beverly v. Division of Beverages, 282 So. 2d 657 (Fla. 1st DCA 1973). In general, the double random drawing process provides a method for notifying the public of the availability of quota licenses and a method for selecting applications for further investigation and possible award of a quota license when those licenses are available. There is currently no administrative rule which gives Respondent guidance on what procedure to follow with regard to the award of pre-1981 quota licenses that have come back into the possession of Respondent by reason of revocation. There is also no rule which governs the re-issuance of post-1981 revoked quota licenses. Historically, Respondent has re-issued these revoked pre-1981 and post-1981 quota licenses through the double random drawing process. The pre-1981 revoked quota licenses issued through the double random drawings were never issued in excess of the population limits; however, they were issued in excess of the population increase for the prior year, if the total population supported the number of licenses issued. Respondent's long-standing policy was not challenged until the recent multiple litigation on this issue involving Petitioner as outlined above. Petitioner has applied for approximately 57 previously- revoked quota licenses. There was no evidence whether these licenses were initially created based on an increase in county population.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is ORDERED that the Petition Challenging a Proposed Agency Rule challenging the proposed amendment to Rule 61A-5.0105, Florida Administrative Code, is granted. The proposed amendment is declared invalid. DONE AND ORDERED this 27th day of January, 2003, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 27th day of January, 2003.
Findings Of Fact 1.-2. Adopted in Findings of Fact 3 & 4, respectively. Adopted in Findings of Fact 5, 6, 7 and 8. 3.* Adopted in Findings of Fact 9 and 10. Adopted in Findings of Fact 11 and 12. Adopted in Finding of Fact 13. Adopted in Findings of Fact 14 and 15. 7.-10. Adopted in Findings of Fact 16, 17, 2 and 11, respectively. * There were two paragraphs numbered 3. COPIES FURNISHED: Ronald Thomas, Executive Director 133 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 Susan Kirkland, Esquire General Counsel 452 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 Aletha L. Dunn, Pro Se Thumbprint Copy & Printing Center 3723 Southside Boulevard Jacksonville, Florida 32216
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witness, it is, therefore, RECOMMENDED that a Respondent enter a Final Order denying Petitioner's request for certification as a Minority Business Enterprise. Respectfully submitted and entered this 25th day of March, 1989, in Tallahassee, Florida. WILLIAM R. CAVE 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 28th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-5533 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Respondent in this case. The Petitioner did not file any posthearing Proposed Findings of Fact and Conclusions of Law.
The Issue Whether the Petition for Formal Administrative Hearing that initiated this proceeding was timely filed?
Findings Of Fact On January 12, 2004, the Department of Environmental Protection issued a letter (the "Letter of Consent") to the Ellenthals that stated the following: "Ira & Judith Ellenthal are hereby authorized to proceed with the repair of approximately 674 sq. ft. of an existing dock and install two (2) boat lifts within the Bay of Florida." Department Ex. 7. The Letter of Consent proclaimed that it constituted "sovereign lands authorization," id., and referenced: Monroe County - ERP File No. 44-0223322-001 Florida Keys Ecosystem Management Area. Id. The Letter of Consent also shows the location of the activity it authorized as offshore of Lot 16, Block 6 of the Buccaneer Point Subdivision located on Bounty Lane in Key Largo. Page 5 of the Letter of Consent provides to parties whose substantial interests are affected by the Department's action a notice of their rights, in pertinent part, as follows: A person whose substantial interests are affected by the Department's action may petition for an administrative proceeding (hearing) under section 120.569 and 120.57 of the Florida Statutes. * * * In accordance with rules 28-106.111(2) and 62-110.106(3)(a)(4), petitions for an administrative hearing must be filed within 21 days of publication of the notice or receipt of written notice, whichever occurs first. Under rule 62-110.106(4) of the Florida Administrative Code, a person whose substantial interests are affected by the Department's action may also request an extension of time to file a petition for an administrative hearing. The Department may for good cause shown, grant the request for an extension of time. * * * A timely request for an extension of time shall toll the running of the time period for filing a petition until the request is acted upon. Upon motion by the requesting party showing that the failure to file a request for an extension of time before the deadline was the result of excusable Id. at 5. neglect, the Department may also grant the requested extension of time. Prior to the issuance of the letter, Petitioner Potter had not requested that the Department give him notice of the Department's decision on the Ellenthal's application. Tr. 19. Petitioner Potter's house is two houses to the south of the Ellenthal property. The distance between the Ellenthal dock and Mr. Potter's dock is between 130 and 131 feet by Mr. Potter's estimation. Mr. Potter sees the Ellenthal property on average "more than one time daily." Tr. 40. Mr. Potter requested and was provided access to the file maintained by the Department on the Ellenthal property (the "Ellenthal File") on at least four separate occasions: January 25, 2009; April 30, 2009; April 9, 2010; and July 28, 2010. The Letter of Consent should be present in the Ellenthal File in the normal course of business. The Department's witness, an administrative assistant, whose position requires her to maintain the Ellenthal File and who provided the file to him several times had no reason to believe that the file was not provided to him in its entirety every time he requested it. Documents that reflect agency action in 2004, like the Letter of Consent, remain in the agency file even when the agency action is maintained in the Department's computer system. Nonetheless, Mr. Potter maintains that he did not see the Letter of Consent on any of the times he reviewed the file until the last time, July 28, 2010, when there is no question in his mind that he received the "whole file," tr. 89, including the Letter of Consent. Mr. Potter's purpose in reviewing the Ellenthal File was to obtain information about riparian lines that related to another case in which he was involved. He did not examine the file for any documents that related to anything other than the riparian lines issue. Mr. Potter recalled that on January 25, 2009, there was only one page in the Ellenthal File and it was not the Letter of Consent. It was a document "from the State Bureau of Mapping and Surveying." Tr. 27-28. On the two times in the month of April in both 2009 and 2010 that he requested and reviewed the Ellenthal File looking for information about riparian lines, Mr. Potter was unable to recall what documents were in the file. On the April 9, 2010, visit to the Department's offices, Mr. Potter copied aerial photographs from the Ellenthal File. In answer to the question what other documents were in the file at that time, Mr. Potter responded: I don't recall . . . I wasn't looking for anything other than . . . a photograph . . . overhead riparian line drawings. That's it. That's all I looked at. I wasn't looking at anything with words on it. Tr. 88 (emphasis added). On August 11, 2010, fourteen days after reviewing the file on July 28, 2011, Mr. Potter requested an extension of time to file a petition for an administrative hearing. The request was granted. The Order granting the extension allowed Mr. Potter to file a petition until September 27, 2010. But the order warned: "This Order does not constitute a determination that the request for an extension of time is timely or that a petition for an administrative hearing regarding Department File No. 44-0223322-001 filed on or before September 27, 2010, is or will be considered timely." Mr. Potter filed the petition for formal administrative hearing on September 27, 2010, within the time allowed by the Department's order granting the extension of time for its filing. The Department filed a motion to bifurcate the hearing so that the single issue of whether the petition is timely or not could be considered separately from the merits of the petition. The motion was granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order that dismisses the Petition for Formal Administrative Hearing that initiated this case. DONE AND ENTERED this 14th day of October, 2011 in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 14th day of October, 2011. COPIES FURNISHED: Brynna J. Ross, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 James Michael Porter, Esquire James M. Porter, P.A. 1 Southeast 3rd Avenue, Suite 2950 Miami, Florida 33131 Harry E. Geissinger, III, Esquire Harry Geissinger Law Office Post Office Box 2218 Palm Beach, Florida 33480 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution in Raiford, Florida. Petitioners are actively involved in numerous litigated matters before both state agencies and the courts. As such, they frequently use the law library at Union Correctional Institution. On or about May 17, 1983, the Secretary of the Department of Corrections issued a revision to Policy and Procedures Directive 4.10.51, which had originally been issued on June 21, 1979. This document, which has not been formally adopted as a "rule," purports to be issued pursuant to the authority contained in Section 945.21, Florida Statutes, and Rule 33-3.05, Florida Administrative Code. This directive applies statewide to the maintenance and operation of law libraries located within the facilities operated by the Department of Corrections. The directive establishes the location of "major" and "minor" law libraries in various correctional facilities. In addition, it defines certain terms and lists the types of legal materials to be maintained in "major" and "minor" libraries. The document establishes duties and responsibilities of the superintendent of each correctional facility maintaining a law library, as well as establishing the duties of the law librarian, inmate law clerks, inmate typists, the coordinator of law libraries, and inmates utilizing the facilities. The directive specifies the types of equipment to be maintained in the facilities and establishes guidelines concerning duplication of library materials by inmates. The directive further establishes the permissible scope of activities by law clerks in assisting inmates with legal research, and further reestablishes control on the use of telephone communications by inmates in connection with pending legal matters. Finally, the directive establishes a Law Library Advisory Council, provides for composition of the membership of that council, and empowers the council to make recommendations to the Secretary of the Department of Corrections concerning library services. On May 4, 1983, Union Correctional Institution, without formal rulemaking proceedings, issued the following Interoffice Memorandum addressed to the Main Housing Unit Staff and Inmates, concerning the law library at Union Correctional Institution: Effective inmediately, all Main Housing Unit Inmates wishing to use the Law Library, will obtain a Pass (Call-out) from their Floor Officer. The Floor Officermay let three (3) Inmates off his floor, go to the Law Library, no more. As these Inmates return, other Inmates may obtain a Pass to the Law Library. The Inmates will be limited to more than a two (2) hour stay in the Law Library, on each Pass. This should give everyone reasonable access to the Law Library. At 4:00 P.M., Officers will cease writing Passes to the Law Library Inmates wishing to use the Law Library after 4:00 P.M., must place their names on a list prepared at the Main Housing Unit Office. At 6:00 P.M., these inmates will be escorted to the Law Library by an Officer. At approximately 8:00 P.M., or when the Law Library closes, the Inmates will he escorted back to the Main Housing Unit by an Officer. The only exception to the above procedures, will be inmates who provide evidence of a deadline on their case or other legal materials. Any Inmate who checks out to the Law Library and is found in another area of the Institution, will be subject to Disciplinary Action. These procedures also apply to weekends and Holidays. This Memorandum becomes Institutional Policy, and compliance is expected. At the time of final hearing in this cause, there were approximately 2,600 inmates located in Union Correctional Institution. The seating capacity of the UCI law library is approximate1y thirty inmates, and the library is often crowded.
The Issue Whether the Respondent, School Board of West Palm Beach County, Florida, (School Board) should reject the bid of the Petitioner, Copyco, Inc. d/b/a Toshiba Business Solutions Florida (Copyco or Petitioner), and approve a contract with the Respondent, Ikon Office Solutions, Inc. (Ikon), should reject the bid of Ikon and approve a contract with Copyco, or should reject all bids and re-bid the contract.
Findings Of Fact On August 5, 2005, the School Board issued an Invitation to Bid (ITB) Number 06C-10B entitled “Term Contract for Copier on a Fixed Cost-Per-Copy. ” The School Board sought to award the Contract to the lowest responsive bidder. The School Board sought several different copiers with different copying rates. All rates were for copies per minute. The School Board did not guarantee any level of use for the copiers. Ikon is the current vendor for copiers provided to the School Board. Ikon and the School Board have enjoyed an amicable and successful working relationship. The subject ITB was available to vendors in an electronic format through a company known in this record as “RFP Depot, LLC.” RFP Depot, LLC is a private company located outside the State of Florida that posts invitations to bid, receives responses from vendors, and transmits information to entities seeking vendors. In this case, they contracted with the School Board to electronically present and respond to the instant ITB. No potential vendor timely protested the terms or specifications of the ITB when it was posted. That is to say, all of the terms of the ITB were accepted by the parties to this action. To prepare the ITB specifications, the School Board utilized information submitted by Ikon for the copiers it provides (manufactured by Canon) to draft the ITB. Karen Brazier exchanged e-mails with Ikon to obtain specifications and used information available from Buyers Laboratory, Inc. (BLI) to complete the ITB. Ms. Brazier did not ask any other vendor or manufacturer to submit data regarding its copiers before completing the ITB. Vendors and manufacturers other than Ikon and Cannon do produce copiers that can meet or exceed the copier requirements of the ITB. Ikon did not draft the instant ITB. Ms. Brazier was solely responsible for the terms of the ITB. The original due date for responses to the ITB was extended from August 29, 2005 to August 31, 2005, due to Hurricane Katrina. Vendors interested in the Contract submitted questions regarding the ITB to RFP Depot, LLC, which then transmitted the inquiries to the School Board. All questions with the answers were posted by RFP Depot, LLC so that all vendors were privy to the information posted for this ITB. Only three bidders timely submitted responses for this ITB: Axsa Document Solutions, Inc. (Axsa); Copyco; and Ikon. The Axsa bid is not at issue in this proceeding. Although it was the lowest bid received, it was disqualified and was not considered for the award. Axsa did not protest that finding. Copyco was the second lowest bidder. John Gans, a major account executive with Copyco, was the primary author of the bid submitted by the Petitioner. Mr. Gans had never used the RFP Depot, LLC system before but personally completed the information for the ITB and submitted it for consideration in a timely manner. The ITB included a chart entitled “Bid Summary Document.” That chart required the vendors to list the copiers proposed for each category by manufacturer and model number. All of the “Group 1” copiers were required to meet certain specifications. The “Estimated Yearly Total” was derived by multiplying the cost-per-copy for each of the Group 1 copiers times 400,000,000 (the number of estimated copies per year). For purposes of computing a cost the estimate for the number of copies was fixed but not guaranteed. In an attached section to the ITB, vendors were required to include additional information regarding the copiers proposed in the Group 1 categories. That information noted the copier proposed with a separate cost-per-copy rate for each of the three different Group 1 categories. Although the price computed for the award was based on the aggregate cost of the copiers, the ITB required that the individual copier breakdown costs be disclosed in the addendum material. When he submitted the bid proposal to RFP Depot, LLC, Mr. Gans believed he had listed a Toshiba e600 copy machine for the category 3 machine of Group 1. In fact, the information attached in the separate information required by the ITB identified the Toshiba e600 and noted its cost per copy in the individual copier breakdown. The Toshiba e600 meets or exceeds all specifications for Group 1, category 3 of the ITB. Group 1, category 3 of the ITB required a machine capable of producing 55 copies per minute. The Toshiba e520 copier is rated at 52 copies per minute. When Copyco’s proposal for this ITB was transmitted by RFP Depot, LLC to the School Board, the proposal identified the Toshiba e520 as the copier listed under the Group 1, category 3 chart. Without considering the attached information provided in the addendum to the proposal, the School Board determined that Copyco’s bid must be disqualified since the Toshiba e520 is not rated to produce 55 copies per minute. Accordingly, the Copyco bid was disqualified and Ikon (the highest bidder of the three submitted) was deemed the only responsive bidder to the ITB. All of the Ikon copiers bid met the specifications of the ITB. At the time the School Board determined to award the bid to Ikon, it did not deem material to the instant award Ikon’s debarment by Hillsborough County, Florida. In April 2005, Ikon was awarded a contract in Hillsborough County to provide copiers and related services based upon another bid solicitation. In that bid, Ikon failed or refused to execute an agreement for the copiers. As a result, the Board of County Commissioners for Hillsborough County, Florida decided to debar Ikon for a period of two years. The debarment precludes Ikon from doing business with Hillsborough County for a two-year term. On August 31, 2005, the date the proposals were due in this case, Ikon knew or should have known that Hillsborough County had decided to debar it from doing business with Hillsborough County. The instant ITB required every bidder to certify that “neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any State or Federal department/agency.” It is undisputed that Ikon did not notify the School Board that it was debarred by Hillsborough County. Ikon has challenged Hillsborough County and filed suit against it for the debarment. As of the time of hearing in this cause, that suit was unresolved and remained pending in federal court. The electronic listings for debarred companies maintained for the State of Florida and the federal government does not include any of the bidders for this ITB. The School Board did not consider the erroneous listing of the Toshiba e520, instead of the Toshiba e600 as the Group 1, category 3, listing to be a minor irregularity of the bid submission. The School Board did not consider the erroneous omission of the debarment from Hillsborough County a disqualifying offense for Ikon. When compared to the Copyco submission, the award of the ITB to Ikon will result in higher copier costs incurred by the School Board. Copyco did not refuse to execute an agreement with the Toshiba e600 as the Group 1, category 3 copier. In fact, Copyco has represented it will do so as that was the machine clearly identified in the addendum materials. In researching the debarment, the School Board made a telephone call to Hillsborough County to ascertain facts pertinent to the debarment. Any negative information related to Ikon was deemed irrelevant to the instant ITB. The Copyco protest to the intended award to Ikon was timely filed. Copyco intended to bid the Toshiba e600 in Group 1, category 3 of the instant ITB. The Toshiba e600 is identified throughout the bid submittal including the proposed transition plan. To have awarded the contract to Copyco with the Toshiba e600 noted as the Group 1, category 3 copier would not have afforded the Petitioner a competitive advantage as that machine was clearly denoted. The cost to the School Board would not have changed but would have been less than the cost proposed by Ikon. Even before a final decision was reached on this contract and before the posting of the award, Ms. Brazier was exchanging e-mails with Ikon regarding the transition under the new contract. Ms. Brazier did not make her supervisor fully aware of the Copyco proposal (as supported by the addendum materials) and did not believe the Ikon bid should be rejected for the failure to disclose the debarment. The School Board’s purchasing manual provides, in pertinent part: The following are reasons a bidder may be declared nonresponsible: * * * D. The bidder does not have a satisfactory record of integrity, or the bidder is currently debarred or suspended by the District or other State of Florida jurisdiction... Ms. Swan did not investigate Ikon’s debarment until after the posting of the award. The School Board has taken the position that the Hillsborough County debarment does not preclude the award of the contract to Ikon.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a Final Order that rejects all bids for the contract. S DONE AND ENTERED this 9th day of February, 2006, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 9th day of February, 2006. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northwest Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael J. Glazer, Esquire Ausley & McMullen 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 James F. Johnston GrayRobinson, P. A. 301 East Pine Street, Suite 1400 Post Office Box 3068 Orlando, Florida 32802 Michael E. Riley, Esquire Gray, Robinson, P.A. Post Office Box 11189 Tallahassee, Florida 32302-3189 Steven A. Stinson, Esquire School Board of Palm Beach County Post Office Box 19239 West Palm Beach, Florida 33416
The Issue There is presented for consideration the question of whether the State of Florida, Department of General Services (Department), should be entitled to purchase certain software from the Intervenor, American Software, Inc. (ASI), as contemplated in Section 287.062(1)(c), Florida Statutes, known as the sole source exception to the general requirements of competitive bidding. The software under consideration is part of the "FFAMIS" Purchasing Subsystem related to the Florida Fiscal Accounting Management Information System. See Sections 215.93(1)(e) and 215.94(5), Florida Statutes. This case also examines the choice by the State of Florida, Department of General Services, Division of Purchasing (Division) to authorize the sole source purchase. Petitioner, Unisys Corporation (Unisys) has challenged the actions by the Department and Division which would preclude any opportunity on the part of Unisys to provide the subject software. Unisys claims that the sole source exception for purchase should not be allowed on this occasion in that Unisys provides a viable alternative in selecting a vendor.
Findings Of Fact Stipulated Facts Unisys is a foreign corporation authorized to do business in Florida pursuant to Section 604.304, Florida Statutes. Intervenor is American Software, Inc., 470 East Paces Ferry Road, Atlanta, Georgia. During 1985, the Division developed a conceptual statements describing the desired functionality of the Florida Fiscal Accounting Management Information System ("FFAMIS") Purchasing Subsystem. Draft functional specifications which describe the desired functionality of the sub system somewhat more definitely were issued on April 22, 1986. The Division performed these activities through a Design Team which consisted of members from the Division and the Division of Information Services. The members of the Design Team were: William Walsh; Robert Glover; William Brundydge; Christine Logan; Judith Smith; aid Zayda Cooper. The draft functional specifications, entitled ("FFAMIS") Purchasing Subsystem Functional Specifications," have been admitted as Joint Exhibit 1. That document was supplemented in May 1986 by a document entitled "FFAMIS Purchasing Subsystem Functional Specification Comments/Questions and Development Team Responses," which has been admitted as Joint Exhibit 2. During the fall of 1986, the Design Team performed an evaluation of the Purchasing and Material Management System (PMM) produced by American Software and the Purchasing 1100 System produced by Unisys. After the evaluation, the Design Team recommended that DGS purchase the American Software system. On June 29, 1987, the Division issued another document entitled "State of Florida FFAMIS Purchasing Subsystem Functions and Features Document," which has been admitted as Joint Exhibit 7. On August 20, 1987, ITRPAC recommended that DGS purchase the American Software System as a sole source. By memorandum dated August 20, 1987, (admitted as Joint Exhibit 9), the Executive Director of DGS requested that the Division authorize the purchase of American Software's system as a single source. The purchase price for the American Software system is $346,000. Unisys' notice of intent to protest was filed within 72 hours of DGS' August 20, 1987 posting. Unisys filed its formal written protest within ten days of filing its notice of intent to protest. DGS plans to make modifications to the American Software system after its purchase. Hearing Facts The FFAMIS Purchasing Subsystem is a legislatively mandated portion of the Florida Fiscal Accounting Management Information System. See Section 215.93(1)(e), Florida Statutes. The Department of General Services is the functional owner of the purchasing Subsystem and is charged with its design, implementation and operation. See Section 215.94(5), Florida Statutes. This Subsystem must include components for commodity procurement, inventory control and warehousing. See Section 215.94(5)(a), Florida Statutes. The FFAMIS Council, consisting of the State Comptroller, Treasurer, and the directors of five other agencies, coordinates and reviews activities of the various functional owners. See Section 215.96, Florida Statutes. The purpose of the Purchasing Subsystem is the computerization of all state purchasing under a single purchasing system. The Division was given the responsibility, within the Department, to develop and implement the Purchasing Subsystem. Moreover, it is expected that the FFAMIS Purchasing Subsystem will eliminate paper work and redundant data entry, bring about automation of purchasing, bidding, document tracking, status reporting, statistics gathering, reporting, and inventory control. In February 1985, the FFAMIS Council directed the Department to prepare a legislative budget request for the Subsystem. In conjunction with this request, the Department developed a Conceptual Statement, DGS Exhibit 10. The Conceptual Statement was written to highlight the major elements within a purchasing system as gleaned from the Department's contact in 1985 with various state, federal and military applications and surveys of other Florida state agencies. In early 1986, the conceptual statement was reviewed by representatives of agencies which will eventually use the Subsystem. Section 215.92(6), Florida Statutes, requires the functional owner to describe what the "subsystem is required to do" along with its "features, characteristics, controls and internal control measures . . . ." In turn, the FFAMIS Purchasing Subsystem Functional Specifications, Joint Exhibit 1, were written to serve this purpose, as well as to show the ultimate users the important elements of the Subsystem. Within the Division, responsibility for developing the Subsystem was delegated to the Department's Bureau of Purchasing Systems and Services, initially headed by Robert Glover. A User Group was also involved in the development of the Subsystem. It was comprised of some fifty individuals representing many agencies who would ultimately employ the Subsystem in their agencies. It was divided into subcommittees with a Steering Committee chosen to lead the group. One of the functions of the User Group was to help produce the Functional Specifications. Another entity involved in the development of the Functional Specifications was the Information Resources Commission (IRC) consisting of the Governor and Cabinet. The IRC is responsible for the basic oversight, planning and policy for data processing for the state. Toward this end, its Executive Administrator, Mike Hale, and his staff had a great deal of interaction with the User Group and Department, giving advice and assistance in developing functional specifications for the Subsystem. The Functional Specifications, Joint Exhibit 1, were widely reviewed by the User Group representing purchasing, financing and accounting staff of all state agencies and the State University System, and by the Department's upper management and the FFAMIS Council. William Walsh is the DGS employee primarily responsible for design, development and implementation of the Subsystem. Mr. Walsh was heavily involved in preparing the Functional Specifications. User Group comments/questions about the Subsystem, along with Mr. Walsh's responses, were appended to the Functional Specifications, Joint Exhibit 1. Again, these questions, comments, and responses may be found as Joint Exhibit 2. Together these two exhibits came to reflect the purchasing subsystem contemplated for development. The functional specifications were intended to conform to the User Group's and the Design Team's conclusions as to what should be included as major elements in the Purchasing Subsystem as well as describing in greater detail the more comprehensive expectations those entities held for the Subsystem. The Department considered three methods of providing the software for the Purchasing Subsystem. First buying an off-the-shelf package and using it without modifications. This was rejected because there was no package which could be used without modifications. In-house development of a system from "scratch" was a second option. The third option was buying a canned system which closely met the needs and modifying it in-house. As the Department contemplated its choices, it had already done general research of existing applications of software referred to above. This past research was done by the Design Team consisting of three members. Visits were made to Texas, Virginia, Michigan and Minnesota to look at possible applications. Applications in Florida were also examined. At the point of more serious reflection on alternatives, the Design Team investigated some fourteen systems in the public and private domains. These included the State of Michigan, several Big Eight accounting firms, the University of Florida's CUFFS system, SADCOM, and other private software packages. The Design Team also researched current literature to find an adequate system. In addition, the team attended vendor presentations by ASI, Unisys and Structured Computer. Eventually, though serious consideration had been given to the alternative of in-house development of necessary software, this choice was also rejected because it was felt to be too time-consuming and risky a proposition. From that point forward, the decision was to buy existing software and modify it to meet the specific needs that the State had in mind. Toward this end, the Structured Computer offering was discarded because of limitations in hardware. That left for consideration the possibility of using ASI or Unisys software, which would be modified in this connection, though the State did not expect to be presented an exact match with its functional specifications, referred to as a "wish list," it was expected that the software which was purchased must respond to requirements of basic functionality. The software would be required to undergo scrutiny by an Evaluation Team within the Department to ascertain its functionality. This Evaluation Team was constituted of the Design Team which had six members, including the project manager, Walsh. The evaluations were to be more extensive than the preliminary demonstrations of the ASI and Unisys equipment which have been mentioned, pertaining to ASI's Purchasing and Materials Management system or PMM equipment and the Unisys system that was demonstrated, known as Purchasing 1100. The demonstrations took place in October 1986. The evaluations would allow hands-on usage of the software by the state evaluators processing examples of routine purchasing functions. In preparation for the hands-on evaluation which the six members of the evaluation team would perform, the vendors ASI and Unisys were provided copies of Joint Exhibit 1, the functional percent specifications. Unisys received this information in the person of one of its local employees, James Schraeder, an account executive. This was received from Mr. Walsh sometime in late September or early October 1986. The ASI functional specifications were sent by cover letter from Mr. Walsh on September 29, 1986. Within Joint Exhibit 1, there are described general functions which the vendors' equipment would be expected to respond to. Among those at 2.4.3 would be a bid processing module and at 2.4.5 a supply management module also known as an inventory module. The State evaluators expected the vendors to provide the essence of those functions found within those subsections to the functional specifications, together with requisition, purchasing and receiving modules. Related to the functional specifications and their general requirements for a bid module and an inventory module, on October 9, 1986, when a technical specialist within Unisys demonstrated its Purchasing 1100 system, it was apparent that the Purchasing 1100 did not include the function for bid processing that the State expected in this project, nor did it include an inventory module of any kind. The piece of equipment had a request for quote "capacity" which is unlike the state's competitive bid system and the bid module spoken to in the Functional Specifications. The competitive bid system was what the state wished to acquire through a bid module in the Purchasing Subsystem. The choice to demonstrate the Purchasing 1100 and to later offer it for evaluation was that of Unisys, not the State. In addition to the provision of a set of functional specifications for the benefit of the vendors prior to the evaluation session, the evaluation team prepared a questionnaire which was given to each vendor at the commencement of the hands-on evaluation performed on the vendors' equipment. A copy of this questionnaire may be found as Joint Exhibit 3. In its substance, it inquires of the vendors concerning the nature of the product which the vendor would offer in furtherance of the state's needs for the Purchasing Subsystem, and also discusses the topic of vendor support of the equipment if it were purchased by the state. The evaluation team also prepared a checklist to be used in the course of the hands-on evaluation of the vendor's equipment. A copy of this checklist may be found as Petitioner's Exhibit 6 admitted into evidence. During the course of the hands-on evaluation sessions; the Design Team or Evaluation Team did place data into the systems being demonstrated to simulate the uses to which the software would be put in meeting the State needs for the Purchasing Subsystem. The ASI evaluation was conducted partially in Atlanta, Georgia, on ASI-owned equipment. The ASI equipment evaluated was the PMM system which incorporated modules for the dive functions contemplated within the Purchasing Subsystem. ASI elected to perform this evaluation session at their facilities to allow for a controlled environment and to guard against program bugs. Program bugs are anomalies in the performance of the software. The Atlanta session took place in the lasts week of October 1986. A further session was held in the first week of November 1986, in Tallahassee, Florida, through a telephone hook-up to the ASI computers in Atlanta, Georgia. All told, approximately five days were spent in the evaluation. In the hands-on evaluations of the ASI equipment, the team members from the Department had specific responsibilities in accordance with their experience and background. The same format would be followed, with the same division of responsibility among the Evaluation Team when it examined the Unisys equipment on later dates. In both the ASI and Unisys hands-on evaluation period, an initial orientation was conducted by the two vendors in describing the features and the functions of the software and familiarization with the use of their equipment which was employed in demonstrating the software packages. The evaluation team input, in particular, typical state requisitions, purchase orders, bids, commodity descriptions and vendor descriptions, having in mind examining whether the equipment would perform the desired functions. During the course of the ASI evaluation, Robert Glover, the Chief of the Bureau of Purchasing Systems and Resources within the Department, found that the system performed adequately from a functionality standpoint and would meet all the required basic functions contemplated, and had the necessary modules. Zayda Cooper, systems project administrator within the Department, found the system to be easy to utilize. Judy Smith, a purchasing specialist within the Department, examined the system from the point of view of user documentation in all the five required modules and is not reported to have been concerned about the performance of the system. Bill Brundydge, a consultant manager from the Division of Information Services, was involved in the evaluation in looking at the design of the programs in the data base in addition to systems documentation to see if these materials were written in a manner which the State could support and maintain. He expressed no concerns about the adequacy of the ASI equipment. Sometime before Thanksgiving, in 1986, the Unisys evaluation was conducted. It was conducted in the Administrative Management Information Center or AMIC in Tallahassee, Florida. This is the data center associated with the Department. The choice of this location was that of Unisys. Unisys elected to demonstrate the Purchasing 1100 system. This system, as Unisys knew before the point of the hands-on evaluation, did not include an inventory module and its request for quote module did not correspond to what the functional specifications contemplated as a bid module. Some testimony was offered by Mr. Bartholomew, the technical specialist for the October 9, 1986, demonstration and for the evaluation, to the effect that had he been given adequate notice, he could have brought with him an inventory module which could have been interfaced with the Purchasing 1100 equipment and provided the necessary inventory module. Mr. Bartholomew does not have a recollection of his October 9, 1986, demonstration of the Purchasing 1100's equipment, at which point that equipment had been devoid of the necessary bid module and any inventory module. Bartholomew had not been informed of the Functional Specification by the Tallahassee staff of Unisys who had received those functional specifications in late September or early October 1986. Specifically, Bartholomew says that another week would have been enough to install an interfaced inventory module added to the two weeks prior to evaluation for installing the Purchasing 110. More than an extra week had been given to Unisys in providing its Tallahassee staff with a copy of the Functional Specifications. On the other hand, in his testimony at hearing, Bartholomew states that it is difficult to determine what type inventory module should be presented, having read the Functional Specifications. To follow this line of reasoning, there are no assurances that he would have prescribed an inventory module had he personally been given adequate notice to install one. In any event, contrary to Mr. Bartholomew's remonstrations, the inventory module requirements were sufficiently clear for a vendor to present that component for evaluation if it had been available. In the last analysis, whether Mr. Bartholomew knew or others knew about the need to provide a system which would include an inventory module and a bid module as opposed to a quote module, Unisys as a corporation knew and it failed to provide two of the five basic modules that needed to be examined in the evaluation period. Those modules were the bid module and inventory module. Unisys has not offered an adequate excuse for failure to provide the inventory module for evaluation or an acceptable bid module, given that Unisys had been told through the Functional Specifications document that the inventory and bid module would need to be examined, a process vital to the interest which the Department had in making certain that the essential building blocks were available to it in creating the Purchasing Subsystem. From the evaluations period forward, Unisys seems to take the point of view that had the State really wanted to see an inventory module demonstrated, it had but to ask. The State had asked through its provision of the Functional Specifications. The State had asked at the most important juncture in this process that it wished to see the basic capabilities of the software before making a decision to purchase the software. The State cannot be seen as responsible for continuing to request from Unisys what should have been provided in the evaluation session, that is to say an adequate bid module and provision of an inventory module. The Department simply was not obligated beyond the evaluation session to continue to request Unisys to provide an inventory module and an adequate bid module. The project needed to move forward. It is the inadequacy of Unisys' performance at evaluation in two important particulars which is their fault, not the Department. Unisys' comments by its employees in the course of the evaluation session that it manufactured inventory systems was simply too late to accomplish its needs and those of the State. The time for promoting this response had arrived and Unisys was unsuccessful in its attempt at compliance. For reasons that will be subsequently described, even had Unisys brought with it some form of inventory module to be interfaced with the Purchasing 1100, there are grave reservations about whether that arrangement would sufficiently satisfy the basic needs that the Department had in obtaining a software foundation for its Purchasing Subsystem. As Cooper used the Unisys equipment, she began by familiarization with the Unisys terminal. She found it more difficult to use than the ASI equipment. It was not as clear to understand, the help messages were not as beneficial and the screens did not flow in a logical manner. She found that her knowledge of the evaluation information did not correspond with the Unisys documentation of that information and that errors within the system were not caught as they should have been. In one instance where quantities were not described, a $43,000,000 purchase order was developed. Ms. Cooper discovered inconsistencies between requested requisition numbers and those that were actually displayed by the software. Ms. Smith encountered similar difficulties and found that the documentation did not always match what was shown on the screens and errors were allowed to move forward beyond the place where they should have been caught. She found that the ASI documentation was easier to utilize than Unisys. She and others as well noted the nonexistence of an inventory module. She also noted that the documentation for the quote system within the Unisys equipment was not a bid system. Mr. Glover found errors in the Unisys documentation and had not found any in the ASI equipment. In the course of the evaluation, related to the bid module, the ASI system was found to provide the basic functionality, whereas the Unisys system in its request for quote module merely provided an automated entry of vendor information, but was not a module pertaining to the creation of a bid document. The documentation errors that were discovered with the Unisys system were significant matters in that documentation is critical in developing training manuals for the agency personnel- who will utilize the Purchasing Subsystem. Given that Unisys did not provide an inventory module for review, it did not provide literature related to an inventory module or the manner in which that module might work with the Purchasing 1100 which was provided for the evaluation. The ease of operation when comparing ASI to Unisys in the software evaluation and the superior performance which Unisys equipment displayed in some instances are not the crucial items. The crux of the problems with Unisys is the lack of functionality in the bid module, a lack of any inventory module and the errors. Responses to the questionnaire, Joint Exhibit 3, were offered by both vendors following the evaluation sessions. The ASI responses found as Joint Exhibit 5 were provided with a cover letter on November 7, 1986. The Unisys response came through Joint Exhibit 4 with a cover letter dated December 2, 1986. Mr. Walsh describes that the weight afforded these responses was somewhere in the neighborhood of five percent in the decision-making process. He gave these items a complete review but found the product explanation to be a less convincing statement of capabilities than the actual performance as seen in the course of the evaluation sessions. In effect, approximately 95 percent of the attitude about the adequacy of the two systems demonstrated by the vendors comes from the experience in hands-on evaluation. In its response to the questionnaire through Joint Exhibit 4, Unisys indicates at 2.4.5 related to the supply management module or inventory module and whether it has the ability to provide that function, "No, but with more detailed specifications Unisys believes that the UNISYS 1100 or MAPPER FACS inventory modules could satisfy the needs of the State of Florida. Together we could determine which system is applicable. Possibly it would better serve the user community by expanding Purchasing 1100 to include the required functionality." This seems to correspond to Mr. Bartholomew, in his testimony, continuing to promote the idea that Unisys had somehow been less than certain about what the state meant in its requirement for an inventory module. Again, even if one were to assume that the exact details of the inventory module identified by the Functional Specifications had not been developed, it is certain that an inventory module was contemplated and that Unisys had been put on notice that that inventory module needed to be presented for evaluation. By the remarks set forth in the answer to the questionnaire, Unisys did not seem to know which inventory module it wished to offer. Nonetheless, if it intended to respond to this opportunity to sell the product to the state, it was incumbent upon it to make that decision prior to the evaluation session and offer some form of inventory module for assessment. It was not incumbent upon the State beyond the point of evaluation to solicit Unisys for further documentation about an inventory module, or to ask for further demonstration of the capabilities of an inventory module. The reason why the State did not evaluate a Unisys inventory module is because no inventory module was offered for evaluation at the time when the State went forward with its hands-on analysis of the capabilities of the software. Unisys, in its responses to the questionnaire, also acknowledged that its bid module could only partially meet the requirements by the State and commented that the quote module of Unisys within the Purchasing 1100 does have "processing." After concluding both hands-on evaluations, the Team members produced a written report and recommendation, the Software Evaluation Report, Joint Exhibit 6. Individual members first write down their findings, which they circulated among themselves. Next, evaluation paragraphs expressing preferences and giving reasons were added. After a unanimous agreement by the Design Team, Mr. Walsh added a final section reflecting the Team's recommendation to purchase the American Software PRIM System. The final document was finished during the last week of December 1986. Mr. Glover testified that he wrote Section 2 of the Report. His recommendation to purchase the ASI package was based on the fact that it "provided the closest fit to the Functional Specifications, [and] provided the functionality" required. In addition, it was easier to use, the instructions were clear, screen movement was easier and movement from screen to screen was easier. Ms. Cooper participated in writing Section 2 with Mr. Glover. Her reasons for recommending acquisition of the ASI Package included the fact that it included all the necessary modules and documentation, and the ease with which she could teach others to use the system. She found it to be "much more user friendly." Screens flowed more logically and help messages were clear. These were important factors to her because the level of expertise of users is usually very limited. Ms. Smith wrote Section 5 of the Report. She joined in the recommendation to acquire the ASI package because it had better documentation and user training manuals, it performed all of the functions required, the flow of information, screens and functions was much easier, it caught errors promptly, and did not produce errors unlike Unisys. Mr. Brundydge and Ms. Logan produced Sections 3 and 6. Mr. Brundydge agreed with the recommendation to purchase the ASI package because it had all the required functions, it could be maintained by the State and the programs were written in a logically laid-out manner. Mr. Walsh concurred in the unanimous recommendation, based on the other Team members' findings, as well as his conclusion that ASI has a superior data base management system. The evaluation report noted that the Unisys equipment did not have a bid module or supply management/inventory module, while both of these modules were set forth in the ASIPMM software. While the Unisys equipment was perceived to be adequate in some of its features and superior to ASIA in others, on balance the Unisys Purchasing 1100 was not acceptable because it did not respond to the bid module and inventory module requirements. The Evaluation Report was subjected to wide review. The recommendation to purchase the ASI package was accepted within DGS by William Monroe, Director, Division of Purchasing; his superior, Larry Strong; and the Executive Director, Mr. Ronald Thomas. The Steering Committee of the User Group unanimously accepted the recommendation. The FFIS Council also accepted the recommendation. The Department amended its legislative budget request to reflect acquisition of the ASI package. The Governor's Office supported the recommendation. DGS Exhibit 22 is the agency's amended budget request for funding to purchase the ASI package at a cost of $346,000. The Legislature approved and appropriated this amount. See DGS Exhibit 23. The proposed purchase of the ASI-PMM was also submitted to the IRC. The Department prepared and submitted to the IRC an amendment to its Information Technology Resource Plan for fiscal years 1987/88-1988/89. The IRC carefully scrutinized the proposed acquisition. The Department's IRC Plan, DGS Exhibit 24, was submitted for approval by the IRC to insure proper planning for information technology resource use and procurement. Specifically, the Department's IRC plan called for acquisition of the ASI package. Ultimately, the Governor and Cabinet, sitting as the IRC, approved the choice of ASI. In June 1987, FFAMIS Purchasing Subsystem Features and Functions, Joint Exhibit 7, was prepared to give the user community an overview of the ASI system. It also gave some detail of the anticipated modifications to be done to the package. As enumerated at page eight of Joint Exhibit 7, it was estimated that these modifications could be done in twelve to eighteen months using fourteen people to both operate and modify the system. An ITRPAC package, DGS Exhibit 8, was developed by Mr. Walsh and his staff for submission to the Information Technology Resource Procurement Advisory Council (ITRPAC). Included in this package is a fiscal summary containing the Department's latest cost projections for implementation of the Subsystem. There is also a prototype implementation schedule with estimates based on the experience of Mr. Walsh, with input from Mr. Brundydge. As Executive Administrator of the IRC, Mr. Hale also sits as a member of ITRPAC. Other members are the Director of the Office of Planning and Budgeting, Office of the Governor, and the DGS Purchasing Division Director, or their designees. See Section 287.073(2), Florida Statutes. Part of ITRPAC's responsibility includes making recommendations on sole source acquisitions. ITRPAC does not take final agency action. It has the power to make non-binding recommendations only. Mr. Hale's staff performed a review of the Respondent's ITRPAC package. Concurrently, the Governor's Office raised questions concerning the sole source aspect of the acquisition. Being satisfied about the sole source purchase, the Governor's Office approved this plan to purchase the ASI system. The INTRPAC package, DGS Exhibit 8, also points out that the cost of the purchase of the ASI PMM software package is $346,900. It reflects that the overall costs within that budget estimate for two years, to include the purchase price, and would also include costs for modification of the ASI software. Staffing requirements for the design, development, implementation, documentation, training and operation of that system are described as involving 14 additional data processing and purchasing FTE's. Within the $1.2 million budget for that two-year period are cost items unassociated with matters pertaining to the purchase and modification of the ASI PMM software package. Mr. Walsh prepared the package that was submitted to ITRPAC and also responded to the request by the Governor's Office concerning sole source acquisition. He is a staff employee for ITRPAC and his response to the Governor's Office was as a member of the Design Team. On August 20, 1987, ITRPAC met to consider the sole source request related to the purchase of ASI PMM. It voted to accept the purchase. From the evidence admitted, it appears that the ITRPAC decision to go with a sole source acquisition relied heavily on the Design Team's evaluation of the ASI and Unisys equipment. In the course of the ITRPAC meeting on August 20, 1987, Derrell Parham, branch sales manager for Unisys in Tallahassee, Florida, appeared and stated Unisys' opposition to a sole source purchase of the ASI software. Mr. Hale questioned Mr. Parham about deficiencies in the Unisys package, as Mr. Hale perceived them. Parham answered by stating that Unisys did not have an inventory component nor did it have a bid module that would meet the State's requirements. Hale pointed out errors that had been experienced when the evaluation was made concerning the Unisys equipment. (Those errors from the point of view of Mr. Bartholomew and his testimony at hearing could have been taken care of through a patch to remove the glitches within the program. That patch was not made available at the time of evaluation. Whether the program errors could have been accommodated through a patch maintenance tape or not does not avail Unisys because, at the most critical juncture, that patch maintenance tape was not installed. A sufficient time would appear to have been available for arranging for patch tapes in anticipation of the installation and evaluation session. Following the recommendation of ITRPAC, a memorandum was prepared by Mr. Walsh dated August 20, 1987, addressed to William Monroe, the Division of Purchasing Director, from Ronald W. Thomas as Executive Director of the Department, requesting permission to acquire the ASI package as a sole source. This memorandum is the formal request for sole source purchase. A copy may be found as Joint Exhibit 9. Walsh had a further role to play in this in that he reviewed the Department's request for sole source purchase as a member of the Division of Purchasing staff. Within the request for sole source are set forth what the Executive Director perceives as the minimum requirements for the FFAMIS Purchasing Subsystem. They are: The system must address all the Purchasing functional modules defined in the functional specifications. This requires an integrated package which supports requisition, purchase order, bid, inventory, and receiving functions, as well as providing user defined interface points to the User's Accounting System. The system must be a currently marketed product fully supported by the Vendor. The system must be implemented and operational in at least ten customer sites. The system must operate in the general hardware and software environment of either AMIC or the CDC, and utilize the Data Base Management System and Tele- communications Systems currently installed at each site. The Vendor must permit user modifications to the product without discontinuing support. The application package must be coded in ANSI COBOL or utilize the fourth generation programming language available within the data center (i.e. NATURAL for the CDC and MAPPER for AMIC). 75 The request for sole source approval goes on to describe how only two possible alternatives had been discerned as being potential alternatives for the purchase. The request talks about the fact that the two systems had been scrutinized through an evaluation process and a conclusion reached that one of the systems did not meet the bid and inventory control requirements, leaving only the ASI equipment which if purchased would cost $346,000 Having considered the evidence in this case, the expression of the minimum criteria contemplates software which will respond to the basic elements or modules through an integrated package. It does not contemplate an exact match to the Functional Specifications. Therein lies the necessity for modification. Concerning the approval of the request for sole source acquisition, typically an agency of State government would request authorization from the Division of Purchasing and the Division staff would research the industry to verify the circumstances for utilization of the sole source exception to purchase. This was not done on this occasion because extensive research and verification through an evaluation process had been done by personnel within the Division of Purchasing who would serve to advise the Division director on the question of approval The way that the decision for approval was communicated by the Division of Purchasing was by the placement of a stamp on the third page of the memorandum requesting sole source permission which carried a line for the signature of the Director of the Division of Purchasing, a date line and a statement of authority line and a note that a carbon copy would be sent to the Auditor General. The Director did not sign this, date it, nor state the authority, in that within the time permitted for testing the decision for sole source purchase, as set out in another stamped portion of the third page--that being a deadline of 3:00 p.m., August 25, 1987--Unisys filed its statement of protest to sole source. According to the custom in the Division of Purchasing, the approval stamp would only have been filled out subsequent to the time allotted for a protest to be filed. The approved request for sole source acquisition was then placed in Room 613 of the Larson Building, in Tallahassee, Florida, which is the headquarters of the Department. Its exact placement was on a ring binder, among other unrelated documents. Debbie Miller, an employee of Unisys, a legislative consultant, went to the Department on August 21, 1987, and after a number of attempts to ascertain the situation related to sole source acquisition of ASI software, found the memorandum with the approval stamp. She informed the Assistant Division Director on that date that Unisys would protest the single source decision, and was led to believe that one protest letter of the decision would be sufficient. This remark was made by Dozier Johnson, Assistant Division Director. The protest letter is dated August 24, 1987, and was filed with the Office of Clerk of the Department of General Services on that same date. It is addressed to the Executive Director of the Department of General Services and states: "This letter is to notify you that Unisys intends to file formal protest of the sole source decision to purchase the American Software, Inc., Purchasing package as decided by the Information Technology Resource Procurement Advisory Council on August 20, 1987." It is signed by Derrell Parham, the branch manager. There ensued the formal written protest which was timely filed. It better describes the fact that Unisys is challenging the Department and Division decisions for sole source. From the facts presented, it can be inferred that the Department and Division knew that their choices to vie for a purchase of ASI software through sole source was under challenge from the inception, that is, when Parham sent his letter of August 24, 1987. The process by which the Department undertook to acquire a FFAMIS Purchasing Subsystem, through the initial evaluation of available software, the selection to acquire an off-the-shelf system and modify as opposed to purchasing an off-the-shelf system without modification or designing a system in-house, the development of functional specifications and the evaluation process pertaining to ASI and Unisys were reasonable responses to the legislative mandate. The failure by Unisys to offer a system for evaluation which incorporated essential modules for bid and inventory jeopardizes its ability to criticize the choice to purchase sole source from ASI. This factual impression is held because the most critical juncture in assessing the needs for this project came at the point where the vendors were called upon to make available their equipment to allow the Department to test adequacy. The attempt by Unisys at the hearing de novo to rehabilitate its position and to describe how the Department is presented an alternative to the sole source purchase has not been successful. Unisys has attacked the cost factor and estimate for the preparation of modifications to the existing ASI PMM software. In doing so, it questions the estimates given by Mr. Walsh as to the time needed to accomplish the task of modifications. It also poses what it considers to be a less costly alternative which is the purchase of Unisys software and having that group modify the off- the-shelf purchase. It is acknowledged that the estimates which have been placed for achieving the ends which the State has in mind, that is, the modification of the ASI software to meet the functional specifications, has not been completely thought out. Nonetheless, the reasoning which the Department had in mind to maintain control over this modification process and to anticipate any future modifications which might come about through the use of this software and the estimate related to cost to accomplish those tasks is acceptable for purposes of resolving this dispute. This is especially true given that the Department is afforded deference in deciding that it would make a purchase of off-the-shelf software and modify that software in-house. It is not bound to accept the idea that a vendor will make the modifications even if the vendor can do them more cheaply. The real issue presented is whether there is an alternative to the purchase of ASI software which would meet the core requirements which form the basis for the construction of the necessary software for the FFAMIS Purchasing Subsystem. It may turn out that the choice to do the modifications in-house would be more costly than having a successful vendor do that task. Even should that occur, the control of the process of modification and the ability to have an on- going staff which can make further modifications and maintain the software without having to resort to the vagaries inherent in dealing with an outside entity which carries forward modifications is sufficient reason to allow the modifications to be accomplished in-house. To do the modifications in-house is seen by the Department as a means to maintain day-to-day control over the specifics of those modifications as opposed to placing that control with a vendor. It allows the staff analysts to become familiar with the software. The projected cost estimate of $1.2 million involves implementation of a prototype FFAMIS Purchasing Subsystem which is more than the modification of the ASI system. Beyond modifications, maintenance of this system is contemplated and the development of any enhancements that might come along beyond the point of the initial modifications. All of these tasks promote important familiarity by in-house staff pertaining to the Purchasing Subsystem. On the topic of modifications, the type required for the ASI software are considerably less involved than those for the Unisys software. The ASI programs are sufficiently close to the basic functionality to avoid major modifications. The Purchasing 1100 that was evaluated would require substantial adjustments to the bid module, known in the Unisys system as a request for quote module and a considerable amount of modification even should the 2R1 enhanced software be used when it becomes generally available on the market. It is unclear what modifications might have to be done with the inventory module to the UNIS 1100 software package, but it would always carry with it the risk associated with the fact that the UNIS 1100 inventory module had been interfaced with the Purchasing 1100 as opposed to being part of an integrated system. On the subject of equipment costs, Unisys in December 1986 offered-to sell the Purchasing 1100 system to the Department for $48,000, the price that included 25 percent discount. It has also offered to sell the Unisys 1100, which has an inventory module for $29,900 to which a 25 percent discount would be applied. Unisys offered testimony to the effect that it could satisfy functional specifications and modifications for a cost of $900,000. In any event, even if Unisys commits itself to a $900,000 figure for the sale of its basic software and modifications to that software, the State does not have to look to Unisys for modifications and sufficient questions remain about the adequacy of the Unisys software to meet the requirements for five modules and the essential functions within those modules contemplated by the Functional Specifications, such that the Unisys proposal is not a viable alternative to the sole source purchase of ASI PMM. Further, the Unisys software does not meet the six criteria or core functions in the sole source request memorandum which reasonably describe the essential functions which the foundation software must perform. It is not in any iteration an integrated package that would support the requisition, purchase order, bid, inventory and receiving functions. It lacks an adequate bid module, in the generation of the Purchasing 1100 that was evaluated by the design team. As briefly alluded to before, there has been some upgrade to the bid module which arguably comes closer to responding to the basic needs which the State has, but is still somewhat lacking. This describes an enhancement or update known as 2R1 which has been tested at beta sites at the point of final hearing, but had not been released as a generally marketed item. While both ASI and Unisys refer to quote or request for quote in describing their modules, ASI performs the basic bid function contemplated by the State and Unisys in its software package which was evaluated by the State does not. The inventory module from the UNIS 1100 system which would be interfaced with Purchasing 1100 does not form an integrated package. The system which Unisys offers is not a currently marketed product fully supported by the vendor or implemented in operation in at least ten customer sites. It is a conglomeration of the Purchasing 1100 with an interface of the inventory module from the UNIS 1100. Unisys presented an exhibit which demonstrated more than ten users who have the Purchasing 1100 system and the UNIS 1100 system; however, no indication has been given that the Purchasing 1100 and UNIS 1100 has been interfaced at those sites, especially as it would relate to an interface wherein the UNIS 1100 inventory module operates independently of other modules in that system in conjunction with the Purchasing 1100. By contrast, ASI is an integrated package that has all of the five modules contemplated and it has the interface points necessary to operate with the Users Accounting System. Unisys, too, can interface with the Users Accounting System. ASI PMM is a currently marketed product fully supported by the vendor and is implemented and operational in at least ten customer sites. This system which Unisys would build to meet the needs of the State by combining the Purchasing 1100 software package with the inventory module, would appear to be a case of the first application of that combination. This inference is gained based upon the remarks of the employees of Unisys in the course of their testimony at hearing and at deposition in which they were unfamiliar with such application. The fourth, fifth and sixth criteria listed in the memorandum seeking sole source approval can be accomplished by both vendors. While the questionnaire answers within Joint Exhibit 5 may have indicated that ASI would not continue to support its software with the advent of modifications by the State, the testimony at hearing identified the fact that ASI would support the software package following modifications by the State. Their intentions are evidenced in their relationship with the State of Minnesota which has a similar PMM package that has been modified by that state and is still being supported by ASI. In particular, the ASI commitment to support the software package would continue if the sequence of the ASI code was not changed. The ASI spokesperson, Frank Smith, a corporate vice president, did not seem to think that the code sequence would be changed, but acknowledged that he had not gone into the details of the modifications contemplated by the State. This lack of absolute certainty is not regarded as non-compliance by ASI with the requirement for the vendor to permit user modifications to the product without discontinuing support. The Department has also stated that what it needs is a system which provides a reasonable fit to the functional specifications. Its primary concern is that the system provide purchasing functionality. This purchasing functionality was described at hearing by Robert Glover, Chief of the Department's Bureau of Purchasing Systems, as follows: The system must have modules for requisition, bids, purchase orders, receiving, and inventory. The system's central files, which contain commodity, vendor, and agency information, feed data into the modules. A requisition can be generated either manually, by inputting information into a terminal, or automatically, when inventory falls below the designated re-order point. Once a requisition is generated, the terminal operator can order that requisition information be transmitted to the bid file: Vendor information is then pulled from the central file and a commodity description and bid invitation is generated. The bid invitation is then sent to vendors. When the bid responses are received, these responses are keyed into the bid file which tabulates the responses. The purchasing agent selects the lowest responsive bidder and keys that award into the system. The system generates a purchase order which is sent to the vendor. Information is transmitted to the receiving file indicating that the commodity is on order, and identifying the vendor and commodity price. When the commodity is received, the receiving file is updated and the updated information is transmitted to the inventory and accounting files. In examining the functionality just referenced, the Department has a legitimate reason to be concerned about the performance of an unproven system such as the combination of Purchasing 1100 with an inventory module from UNIS 1100. This lack of utilization in the market place within the ten customer sites alone could cause the Unisys software package alternative to be rejected. The beta site testing that the 2R1 enhancement to the Purchasing 1100 was undergoing at the selected customer sites is not comparable to a market release in ten customer sites. The available information concerning this release was constituted of a functional overview which is set forth in the ASI Exhibit 1. The formal product documentation for the 2R1 release had not been finalized at the point of hearing. Among the references within the ASI Exhibit 1 pertaining to the request for quote is an indication of: .STATUS ON QUOTE RECORD-"ON-HOLD" .CANNOT BE LINKED TO REQUISITIONS OR PO' ."NEW ON-LINE PRINT PROGRAM. The ASI Exhibit 1 or functional overview of the 2R1 enhancement was derived from overhead transparencies or bullets intended to lead into discussion of the project. There is another document related to the system that Unisys would build to meet the demands that the State has that has to do with the interface. This is described as Sperry CIM/UNIS-1100, CIM/Purchasing 1100 Interface Installation memo, Petitioner's Exhibit 6. Each portion of this interfaced system of Purchasing 1100 and UNIS 1100 has a separate data base. Not all information that is used by this system is stored in both data bases. There are some items that are not transferred by the interface between the two pieces of software. On the other hand, there are occasions in which information is transferred and this leads to duplicate files within the Purchasing 1100 and the UNIS 1100. Under the circumstances the risk is presented of data mismatch, a condition in which file information within a duplicate data base is inconsistent or different or unsynchronized. The installation memorandum for the interface between the two Unisys products warns users about the problem of data mismatch. These warnings within Petitioner's Exhibit 6 may be found at 2.2, 2.3 and the note to 2.8. A system which allows for data mismatch could cause incorrect information to be employed in the activities contemplated by the FFAMIS Purchasing Subsystem. That is the reason why the Functional Specifications contemplate a system which has an integrated data base arrangement allowing the sharing of all file materials by each module. ASI provides that with its PMM product, and the Unisys system of combination of Purchasing 1100 and UNIS 1100 inventory module does not. It employs duplicate files which could effect the performance of the system through data mismatch. The idea of duplicate or redundant data files in addition to possible data mismatch, also promotes duplication or redundancy in hardware storage space. The Department contemplates an integrated system without duplicate files, thus avoiding the need for synchronization of data bases. The ASI PMM system consists of a series of modules using common data bases with no duplicate or redundant files. Modifications necessary for the ASI PMM software are described in Joint Exhibit 7 as: (a) provides security similar to SAMAS; (b) reformat and redefine screens to use FFAMIS naming convention; (c) refine SAMAS interface requirements; (d) modify report programs; and (e) rewrite user documentation. Similar functions would have to be performed related to Unisys software in addition to more basic modifications to the Unisys software. Even should this arrangement be made with the Unisys equipment, again it would not meet all the basic criteria contemplated in the request for sole source. An integrated system operates in "real time." ASI Exhibit 1, the 2R1 functional overview document for the Purchasing 1100, has reference to the interface with the UNIS 1100 and speaks in time of a "virtual real time of data" in describing the "user defined interval of information transfer. Through his testimony, Mr. Bartholomew tried to indicate that nothing special was intended by the use of the term virtual "real time." What he said was that he was interested in describing a circumstance in which the user determines the transfer interval. According to Bartholomew, the user can arrange for the interval to be a millisecond to a much greater length of time. The problem that is inherent in the Unisys arrangement is to the extent that information is placed in the data base for the UNIS 1100 inventory module which has a counterpart in the data base for Purchasing 1100, an interval will have to be arrived at to allow for the transfer of information in assuring that the duplicate files within the two interfaced systems will remain synchronized. The integrated system sought contemplates the entry of data into the data base without regard for the maintenance of duplicate files and the transfer of information from one duplicate fife to another. Although the interface arrangement between Purchasing 1100 and UNIS 1100 contemplates automatic maintenance of synchronization between duplicate files within the data bases for those two combined systems, there is still the risk recognized by Unisys of data mismatch in the duplicate file environment. Reference is made by Unisys to the belief that the Joint Exhibit 1 through Appendix C, Figure C-22 in its conceptual design of the system contemplates a number of data bases which share some common information or data. It may depict common data available to more than one data base or it may describe two types of data which correspond by type characterization to the data base with the same name designation. It does not describe duplicate files. Unisys also urges that, through its witness Bartholomew, that there is always some data mismatch whether you have activity with an interfaced system or an integrated system. Regardless of this opinion held by Mr. Bartholomew, and the description set forth in Figure C-22 to the Functional Specifications depicting common sources of information for various data bases, the system which the State wishes to purchase is an integrated system that does not contemplate two parts of a system connected by an interface in which duplicate data files may be held in each of those parts and upon the changing of data in the first duplicate file, transport or notification of that change must be brought to the second duplicate data file through the interface apparatus. The ASI system is integrated with common data bases for the various modules within the system and in which no duplicate or redundant files are involved, Unisys does not offer such a system. Finally, as observed by Mr. Hale, the intention of the Department to install the software in an existing State site, the Comptroller's data center, is advantageous in that it puts this prototype in the position where another system exists allowing the benefit of the guidance and expertise of the Comptroller's data center in interaction with the analysts involved with the FFAMIS Purchasing Subsystem. This location also houses the SAMAS accounting System with which the Purchasing Subsystem is required to interface.
The Issue The issue for resolution is whether Respondent committed the alleged violation, and, if so, what disciplinary action is appropriate.
Findings Of Fact Frank Badalucco is Vice-president and Resident Agent of Fashions Corporation of America, Inc., the corporate owner of Hair Studio 2000. Mr. Badalucco also manages the studio, located in Orlando, Florida. The facility is licensed as a barbershop under license number BS- 0009172, issued on September 29, 1986. Fashions Corporation purchased the facility on or about September 15, 1986, from Kathy Wawrizniak. Shortly after the purchase, Frank Badalucco checked the employees to make certain they were properly licensed. Mabel Marin, one of the employees, told him that her purse had been stolen in December 1985, and that her license was lost. She had a number which she said was her current license number. Mr. Badalucco told her to take care of getting a duplicate. On August 6, 1987, Valerie Flowers, an inspector for the Department of Professional Regulation, inspected Hair Studio 2000. Mabel Marin was styling a patron's hair at a station in the shop. She did not have a license posted at her station, but had a paper with a license number on it. Ms. Marin told the inspector that it was her number and that her license was current. She also said that she had lost her license, but that she was given this number over the telephone. It is not the policy of the Department to give license numbers over the telephone. When Inspector Flowers checked the records, she found that the number Ms. Marin had posted was actually a number belonging to another licensee in Sunrise, Florida. Ms. Flowers verified that Mabel Marin had an inactive license. Ms. Marin insisted that she had renewed her license on time, but that it was not sent to her. She claimed to have a money order to prove this. Badalucco told Ms. Marin to get the money order and take it to Ms. Flowers office. Although she made several appointments by telephone, Mabel Marin never brought in her license or proof of application. At the hearing, Frank Badalucco produced a copy of Ms. Marin's money order in the amount of $70.00, made to the State Board of Cosmetology, and dated January 14, 1986. He also had a copy of Ms. Marin's license, showing an expiration date, June 30, 1988. He said that when they checked, they found that the money order had never been cashed. After the inspector filed her complaint, Ms. Marin sent another money order and received her license. It is apparent that Ms. Marin may have attempted to obtain a duplicate license after her purse was stolen. She never followed through, however, and the license was not renewed until after the violation was cited by Valerie Flowers. In the meantime, that license had expired and reverted to inactive status on July 1, 1986. The license was reactivated by payment of a regular renewal fee of $20.00 and reactivation fee of $50.00 on August 26, 1987.
Recommendation It is, therefore, RECOMMENDED: That Respondent be found guilty of the violations, as charged and be required to pay an administrative fine of $200.00. DONE and RECOMMENDED this 29th day of March, 1988, in Tallahassee, Florida. MARY CLARK 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 29th day of March, 1988. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Frank Badalucco Hair Studio 2000 955 West Lancaster Road Orlando, Florida 32809 Myrtle Aase, Executive Director Board of Barbers Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue Whether Respondent engaged in discriminatory employment practices or retaliated against Petitioner, in violation of the Florida Civil Rights Act (FCRA), as alleged in the Petition for Relief; and, if so, the appropriate penalty.
Findings Of Fact Allied Universal provides security officers to various locations. It currently employs Hawkins as a sergeant (and formerly, as a security professional). Allied Universal has assigned Hawkins to serve at the Florida Department of Revenue’s (DOR), offices in Tallahassee, Florida. Her duties include maintaining access control, performing regular surveillance patrols, and providing security over persons and property. Previously, Hawkins served as a security professional for Universal Protection Services, LP, at the DOR location. In August 2016, Universal Protection Services, LP, merged with AlliedBarton Security Services, LLC, to form Allied Universal. In May 2016 (prior to the merger), Bobby Owens (Owens), an operations manager for Universal Protection Services, LP, and now Allied Universal, recommended to Tallahassee Branch Manager James Goodman (Goodman) that Hawkins be promoted to Sergeant and receive a raise in pay. Goodman, who did not have the authority to do so, requested approval from higher-level managers. Universal Protection Services, LP, promoted Hawkins to Sergeant, and increased her wages from $8.35 to $8.50 per hour, effective May 13, 2016. Hawkins, Owens, and Goodman remained in their positions with Allied Universal after the merger. Goodman testified that in 2017, he met, via conference call, with a regional vice president and southeast president of Allied Universal, concerning “market erosion.” Goodman explained that “market erosion” was “profit loss that we were losing based on officers that were working at a higher pay rate than what was contracted with individual clients.” Goodman’s superiors tasked him with identifying any employees who were being paid “out of profile,” i.e., higher than the contracted rate, and reducing their wages accordingly. Goodman testified that he reviewed the salaries of over 375 officers under his supervision, and identified 17 who he determined were “out of profile.” Hawkins was one of those officers he determined was “out of profile.” Goodman testified that these 17 “out of profile” officers included individuals who were white, African American, male, female, over the age of 40, and under the age of 40. Goodman testified that Allied Universal reduced the salaries of these 17 officers, including Hawkins. Allied Universal reduced Hawkins’s salary from $8.50 per hour to her previous salary of $8.35 per hour ($0.15 per hour), effective December 2017. Goodman noted that other officers received a greater reduction in pay than Hawkins. In November 2017, Allied Universal issued Hawkins a “Coaching – Counseling – Disciplinary Notice” for failure to follow Allied Universal’s attendance policy. Hawkins reported to work two-and-a-half hours late. She testified that she informed a DOR employee, Sam Omeke, that she had a doctor’s appointment that morning, but did not inform anyone with Allied Universal. In December 2017, Hawkins requested that Allied Universal provide or assist her with “hurricane relief” pay for the week in September 2017, that the State of Florida closed her worksite because of Hurricane Irma. She testified that she was not sure if Allied Universal offered such a program, and further testified that she ultimately never applied for any type of compensation lost as a result of Hurricane Irma. Later in December 2017, Allied Universal implemented Hawkins’s pay reduction. Thereafter, in January 2018, Hawkins sent an e-mail to several employees with Allied Universal, stating her concerns about the pay decrease. Owens testified that he received the e-mail, which was encrypted, and called Hawkins to discuss, but she did not answer her phone. They spoke the next day, and Owens directed Hawkins to speak with another Allied Universal employee to discuss the pay decrease. In early 2018, Allied Universal implemented a new timekeeping system for its employees called “Team Time,” which required employees to record their time via telephone. Owens testified that because multiple sites encountered difficulties with “Team Time” on its first day, he called all of the worksites he supervised to determine whether those employees had experienced issues with it. Owens testified that he called Hawkins more than one time that day, and that she did not answer. Owens testified that, on two separate occasions, he visited Hawkins’s worksite and asked her to sign Allied Universal documents, including the “Employee Handbook Receipt and Acknowledgement,” and the “Job Safety Analysis Acknowledgement.” Owens testified that on these two separate visits, Hawkins refused to sign them. Hawkins was the only Allied Universal employee in Tallahassee who refused to sign these documents. Allied Universal did not discipline Hawkins for her refusal to sign these documents. In her Charge of Discrimination, Petition for Relief, and at the final hearing, Hawkins contends that the actions detailed in paragraphs 7 through 12, above, constituted retaliation. Prior to filing the Charge of Discrimination with FCHR in February 2018, Hawkins never complained to Allied Universal about retaliation, harassment, or discrimination. Hawkins remains an employee of Allied Universal at the DOR location in Tallahassee. Hawkins presented no persuasive evidence that Allied discriminated against her because she opposed an unlawful employment practice, or because she made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the FCRA. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful retaliation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Lucinda Hawkins, did not prove that Respondent, Allied Universal Security Services, committed unlawful employment practices, or retaliated against her, and dismissing her Petition for Relief from unlawful employment practices. DONE AND ENTERED this 25th day of January, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 25th day of January, 2019.
