Findings Of Fact 1. Incorporated in Finding of Fact 1. 2. Incorporated in Finding of Fact 3. 3. Incorporated in Finding of Fact 4. 4. Incorporated in Finding of Fact 5. 5. Incorporated in Findings of Fact 4 and 6. 6. Incorporated in Finding of Fact 5. 7. Incorporated in Finding of Fact 6. 8. Incorporated in Findings of Fact 7 and 8. COPIES FURNISHED: Louie L. Wainwright Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Louis A. Vargas General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Julia P. Forrester, Esquire Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301 Vernell Hadley Jackie B. Blevins Samuel Moore Douglas Adams Union Correctional Institution P. O. Box 221 Raiford, Florida 32083 Liz Cloud Chief Bureau of Administrative Code 1802 The Capitol Tallahassee, Florida 32301 Carroll Webb, Executive Director Administrative Procedures Committee 120 Holland Building Tallahassee, Florida 32301
The Issue Whether Respondent's proposed decision to award a contract to The Next Step Adolescent and Youth Community Center, Inc., pursuant to RFP No. K8025 is contrary to Respondent's governing statutes, rules, or policies or the proposal specifications.
Findings Of Fact On April 27, 1999, Respondent, Department of Juvenile Justice (Department), issued and advertised RFP No. K8025, which was a request for proposals (RFP) for a 16-bed, non-secure detention program. Petitioner, Non-Secure Detention Home, Inc. (Non-Secure Detention Home) and The Next Step Adolescent and Youth Community Center, Inc. (Next Step) submitted proposals. Another provider submitted a proposal but it was rejected as nonresponsive and was not evaluated. On June 1, 1999, the Department posted the tabulations for the RFP, recommending the contract be awarded to Next Step. Next Step received the highest number of points, 248.66, and Non-Secure Home Detention ranked second with 209.33 points. Non-Secure Detention Home filed a protest on June 3, 1999, and an Amended Notice of Protest on July 1, 1999. There were three evaluation committee members: Anna Bustamante, Kenneth Williams, and Allen Hepburn. Mr. Williams is a community youth leader supervisor with the Department. Mr. Hepburn is a juvenile probation officer supervisor, who supervises the court unit for the Department. The RFP provides that the program is to be operated at a provider-leased or owned facility. Next Step indicated in its proposal that Next Step would be leasing two homes. One of the homes was to be leased from Reginald Rucker, who was the president and a member of the Board of Directors for Next Step. A copy of the lease was included with the proposal and stated that Reginald Rucker and his wife, Charlene Rucker, were to be the landlords. There was no indication in Next Step's proposal that the facility was owned by anyone other than Reginald and Charlene Rucker. The property is described as "Lot 9, in Block 125 of Leslie Estates Section Fourteen, According to the Plat thereof, as Recorded in Plat Book 116, at Page 95 of the Public Records of Dade County." In May 1996 the property was sold by the Veteran's Administration to Reginal Rucker, Charlene Rucker, and Connie White. Connie White is an employee of the Department, and a former employee at Non-Secure Detention Home. Ms. White's job duties do not include determining the facilities in which juveniles will be placed. For a two-week period, Kenneth Williams supervised Ms. White. At the time that the proposals were being evaluated, Mr. Williams was not supervising Ms. White nor was he aware that Ms. White had any interest in the property proposed to be leased by Next Step. Allen Hepburn knows Connie White. He also knows Connie White's sister, Gladine White, both socially and professionally. Mr. Hepburn is acquainted with Gladine White's husband. Mr. Hepburn attends the same church as Connie White and Gladine White. He does not know either Reginald Rucker or his wife, Charlene Rucker. Mr. Hepburn was not aware that Connie White had any interest in the property which Next Step proposed to use if it received the contract. The RFP set out the proposal award criteria. The proposals were to be evaluated on the statement of work, organizational capability, management approach, and past performance. The evaluation areas were weighted with 65 percent for statement of work, 10 percent for organizational capability, 15 percent for management approach, and 10 percent for past performance. The percentage used in the evaluation of past performance was subdivided as follows: Historical Implementation 1% Educational achievements 5% Recidivism rates 2% QA evaluation 2% Community involvement 1% CMBE subcontracting 1% The RFP stated: Offers without prior Department contract experience shall receive a rating based on the average score of the other competing offers in evaluating their proposals in accordance with stated criteria. This provision of the RFP was not protested within the time frames provided in Section 120.57(3), Florida Statutes, and the RFP. Fifty points was the maximum number of points which could be awarded for past performance. The past performance evaluation consisted of five areas which could receive from zero to ten points. The evaluators were given a scale by which to award points. If the proposal did not address an area, zero points would be awarded. If the proposal response were deemed unsatisfactory, two points would be awarded. Four points would be awarded for a poor proposal response. An adequate proposal response would be worth six points. If the proposal was evaluated to be very good, it would receive eight points. An excellent proposal response would be awarded the maximum of ten points. For the past performance section, Non-Secure Detention Home garnered 12 points from Mr. Williams, 21 points from Ms. Bustamante, and 26 points from Mr. Hepburn for a total of 59 points. Next Step did not have previous experience with the Department. Evaluator Hepburn gave Next Step a total of two points for the past performance section. Ms. Bustamante awarded Next Step ten points for the past performance portion. Mr. Williams gave Next Step a total of six points for past performance. The RFP required that Next Step be given the average of the other competing proposals because Next Step did not have previous experience. Non-Secure Detention Home had the only other competing proposal for the solicitation. Eric Stark, a contract manager for the Department, attempted to apply the provision in the RFP by averaging the scores that each of the evaluators had given Non-Secure Detention Home for past performance and using that average in computing the total scores from each of the evaluators. The average score given to Non-Secure Detention Home was 19; thus a rating of 19 was applied in the evaluation of the past performance of Next Step in lieu of the original scores given by the evaluators. The RFP requires the following: The PROVIDER shall comply with the Department of Juvenile Justice, Office of the Inspector General's Statewide Procedure on Background Screening for Employees, PROVIDERS, and Volunteers. The PROVIDER agrees, to comply with the requirements for background screening as mandated in Section 985.01, Florida Statutes. Failure to comply with the Department's background screening procedure could result in cancellation of the contract. Reginald Rucker was a former employee of Non-Secure Detention Home. Mr. Xavier Moore, the Executive Director for Non-Secure Detention Home, made a request to the Department of Juvenile Justice to do a preliminary FCIC/NCIC and DHSMV screening check on Mr. Rucker. According to Mr. Moore the screening did not indicate a problem with Mr. Rucker being employed by Non-Secure Detention Home. Mr. Rucker was employed with Non-Secure Detention Home from 1997 until June 10, 1999. On October 4, 1995, an Order to Seal Records Pursuant to Section 943.058, Florida Statutes, and Florida Rule of Criminal Procedure 3.692 was issued in the Circuit Court of the Ninth Judicial Circuit in and for Osceola County, Florida, sealing all records pertaining to Reginald Rucker's arrest on January 13, 1990, by the Florida Highway Patrol for cocaine and marijuana possession. The order stated that Mr. Rucker was not adjudicated guilty of charges stemming from the arrest. The RFP did not require the proposers to submit a financial statement or audit; however, the evaluators were asked to rate the proposals based on whether an acceptable financial statement or audit was included. Neither Next Step nor Non-Secure Detention Home submitted a financial statement or audit. Next Step received the following points for its non- existent financial statement: eight points from Mr. Hepburn; zero points from Mr. Williams; and zero points from Ms. Bustamante. For its nonexistent financial statement Non-Secure Detention Home received the following scores: six points from Mr. Hepburn; a N/A which equated to zero points from Mr. Williams; and six points from Ms. Bustamante.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered awarding the contract for a 16-bed, non-secure detention program to The Next Step Adolescent and Youth Community Center, Inc. and dismissing the protest of Non-Secure Detention Home, Inc. DONE AND ENTERED this 14th day of September, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 14th day of September, 1999. COPIES FURNISHED: Walter S. Pesetsky, Esquire Pesetsky & Zack, P.A. 1367 Northeast 162nd Street North Miami Beach, Florida 33162 Scott C. Wright, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. "Bill" Bankhead, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Whether Rules 33-3.0084(1)(i)1 and 33-3.005(4)(a) and (b), Florida Administrative Code, constitute an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioners, William Van Poyck and Mike Ramadanovic, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioners are subject to the rules of the Respondent, including the rules at issue in this proceeding. The rules at issue in this proceeding govern the treatment of inmates while in "disciplinary confinement." At the time of the formal hearing, neither of the Petitioners were in disciplinary confinement. Both Petitioners have, however, been in disciplinary confinement. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing the rights of inmates, inmate conduct, inmate discipline and all other aspects of the operation of the prison system in Florida. C. Rules 33-3.005(4)(a) and (b), and 33-3.0084(1)(i)1, Florida Administrative Code. The Petitioners have challenged Rules 33-3.005(4)(a) and (b), and 33- 3.0084(1)(i)1, Florida Administrative Code (hereinafter referred to collectively as the "Challenged Rules"). Rule 33-3.005(4)(a) and (b), Florida Administrative Code, provides, in pertinent part: (4) . . . . Inmates in disciplinary confinement status shall not be allowed to prepare legal documents and legal mail while in that status except under the following conditions: When there is a time limitation on the filing of legal material with a court and it reasonably appears necessary for the inmate to prepare the same while in confinement status in order to get the same filed within the required time. When the inmate wishes to prepare legal material to file with a court for the purpose of testing the legality of his disciplinary confinement. The specific statutory authority for Rule 33-3.005, Florida Administrative Code, is Sections 20.315, 944.09 and 944.11, Florida Statutes. The law implemented by Rule 33-3.005, Florida Administrative Code, is Sections 944.09 and 944.11, Florida Statutes. Rule 33-3.0084(1)(i)1, Florida Administrative Code, provides, in pertinent part: 1. Legal materials shall be accessible to inmates in disciplinary confinement provided such use of legal material is for the purpose of challenging such confinement or in the event there are time restrictions on filing court papers. The specific statutory authority for Rule 33-3.0084, Florida Administrative Code, is Section 944.09, Florida Statutes. The law implemented by, Rule 33-3.0084, Florida Administrative Code, is Sections 20.315 and 944.09, Florida Statutes. Chapter 33-22, Florida Administrative Code, titled "Inmate Discipline", specifies what constitutes prohibited conduct for inmates, the procedures for determining if an inmate has violated the rules establishing prohibited conduct and the maximum punishment which may be imposed if an inmate violates the rules establishing prohibited conduct. The "Rules of Prohibited Conduct" and the maximum punishment for an infraction of these rules are contained in Rule 33-22.012, Florida Administrative Code. Among other things, an inmate who violates the Rules of Prohibited Conduct, may be placed in "disciplinary confinement" for specified periods of time. The length of time an inmate may be placed in disciplinary confinement for is not to exceed 60 days for any one infraction. "Disciplinary confinement" is defined in Rule 33-22.002(3), Florida Administrative Code, as: (3) Disciplinary Confinement -- Confinement which includes the loss of privileges normally afforded other inmates and is effected only after procedures outlined in this chapter have been fully complied with. Although the maximum term of disciplinary confinement is 60 days, it is possible for an inmate to be placed in disciplinary confinement for longer periods of time: (1) an inmate may be convicted of more than one violation of the Rules of Prohibited Conduct and be sentenced to multiple 60-day (or less) sentences to be served consecutively; (2) an inmate may commit another infraction(s) (including a violation of the Challenged Rules) while in disciplinary confinement, resulting in additional disciplinary consecutive confinement sentences; and (3) an inmate may commit an infraction soon after release from disciplinary confinement and be returned to disciplinary confinement. It is also possible for an inmate to serve less than the full term of his sentence to disciplinary confinement. Being placed in disciplinary confinement is a direct result of the actions of an inmate in failing to follow the established rules of conduct of the Respondent. At least one inmate has been in disciplinary confinement for periods of up to two and one-half years. An inmate would have to commit a minimum of fifteen infractions to be sentenced to disciplinary confinement for two and one- half years. The evidence failed to prove that the one inmate that has been in disciplinary confinement for two and one-half years was in disciplinary confinement continuously without any break. The inmate could not recall. The number of inmates in disciplinary confinement for more than one year was not proven. At best, it was proved by the Petitioners that one inmate (Charles William Bowe, Jr.) has served more than one year in disciplinary confinement. Even the evidence concerning Mr. Bowe, however, did not prove that his time in disciplinary confinement was continuous and without any break. Based upon an estimate of the Respondent, it is likely that no more than 1% of the inmate population (less than 460) is in disciplinary confinement for more than one year. Although the evidence did not prove that any inmate has actually been in disciplinary confinement for more than two and one-half years, it is not impossible that an inmate could be in disciplinary confinement for an unlimited period of time, as long as the inmate continues to commit violations of the Respondent's Rules of Prohibited Conduct. Although it may be unlikely, it is not impossible for an inmate to be in disciplinary confinement for the entire term of his sentence. The purpose for placing an inmate in disciplinary confinement and the purpose of the Challenged Rules is to attempt to correct an inmate's demonstrated negative behavior; to eliminate "privileges" inmates normally are given. Pursuant to Rule 33-3.005(4)(a) and (b), Florida Administrative Code, an inmate who is placed in disciplinary confinement is prohibited from instituting any new litigation (other than a challenge to the decision to place the inmate in disciplinary confinement or litigation which must be instituted within a specified time period) while the inmate is in disciplinary confinement. Pursuant to Rule 33-3.005(4)(a) and (b), Florida Administrative Code, an inmate who is placed in disciplinary confinement is generally prohibited from preparing legal documents and legal mail unless the inmate is required to meet a time limitation in an existing legal matter or the inmate intends to test the legality of his disciplinary confinement. When an inmate is placed in disciplinary confinement, all of the inmate's legal materials are confiscated and impounded. Access to an inmate's legal materials may be obtained while in disciplinary confinement pursuant to the exceptions of the Challenged Rules. At Florida State Prison, access is allowed to an inmate' legal materials if the inmate can show the necessity for those materials through: (1) a court order that requires the inmate to take some action in a pending matter; (2) any other source, i.e., a rule of the court, indicating that the inmate must meet some procedural or other requirement of the court; or (3) if the inmate indicates a desire to prepare a challenge to the legality of his disciplinary confinement. The procedure followed at Florida State Prison for an inmate in disciplinary confinement to obtain access to the inmate's legal materials is as follows: The inmate makes a request to an institutional counselor assigned responsibility for the inmate; The inmate must indicate to the institutional counselor why one of the exceptions provided in the Challenged Rules allowing access to his legal materials applies; If the institutional counselor is convinced that one of the exceptions applies, access to the inmate's legal materials is allowed. If not, no access is allowed; The procedure followed at Florida State Prison if an inmate convinces an institutional counselor that access to his legal materials should be allowed is as follows: The institutional counselor retrieves the inmate's legal materials and brings them to the inmate's cell; In some instances the institutional counselor may give the legal materials to the inmate or require the inmate to describe to the counselor, and convince the counselor of, what materials he actually needs to meet the deadline or to challenge his disciplinary confinement; and The institutional counselor, based upon the inmate's description of the materials he needs, makes the final determination of what materials may actually be given to the inmate. If the inmate does not get the materials he needs, he then must convince the counselor of what additional materials are needed. If an inmate is denied access to his legal materials or is not provided with the materials he needs, the inmate may challenge the decision of the institutional counselor by filing a grievance. Based upon the experiences of the inmates who testified in this proceeding, requests for access to an inmate's legal materials may be granted or denied, and when granted, an inmate may be given the whole file, he may be denied materials, he may be asked "is this it" and he may get only the materials he actually needs. Institutional counselors may even make more than one attempt to find the requested materials. Pursuant to Rule 33-3.0084(1)(i)1, Florida Administrative Code, an inmate may not have access to any legal materials except to the extent necessary for the inmate to meet a time limitation in an existing legal matter or if the inmate intends to test the legality of his disciplinary confinement. Access to legal materials in the library may generally be obtained by inmates. Such access is not, however, without limitation. There are limitations on the procedure which must be followed to obtain access to the library and the amount of materials which may be obtained at any one time. An inmate in disciplinary confinement is further limited as to when and how he may access library resources pursuant to the Challenged Rules. At Florida State Prison, access is allowed to library legal materials only if an inmate can show the necessity for those materials in the same manner an inmate may obtain access to his own legal materials as explained in finding of fact 26. The procedure followed at Florida State Prison for an inmate in disciplinary confinement to obtain access to library legal materials is as follows: The inmate must make a request in writing to the librarian; The inmate must indicate to the librarian why one of the exceptions to the lack of access to library legal materials applies; If the librarian is convinced that one of the exceptions applies, access to the library's legal materials is allowed. If not, no access is allowed; The librarian, based upon the inmate's description of the materials he needs, makes the final determination of what materials may actually be given to the inmate. If the inmate does not get the materials he needs, he may make additional requests. If an inmate is denied access to library legal materials or is not provided with the materials he needs, the inmate may challenge the decision by filing a grievance. Institutional counselors and librarians are not required to have legal education or training. The evidence failed to prove that any inmate has been totally denied access to the courts by the proper application of the Challenged Rules. The evidence proved that the Challenged Rules are inconvenient and aggravating to some inmates who have experienced the procedures which must be followed in order to obtain access to the inmate's legal materials or library legal materials. The procedures can be a hinderance to an inmate's pursuit of litigation to the extent that the procedures are one more step an inmate must follow that the inmate would not otherwise have to follow if he were not in disciplinary confinement. The evidence proved that, although inconvenient, some of the inmates who testified were able to pursue litigation even though they have been in disciplinary confinement at times. There was some aggravation and frustration caused those inmates who testified because of the Challenged Rules, but the evidence failed to prove that any of the inmates who testified or any other inmates were actually prevented from pursing litigation: Inmate Bowe, who has served two and one-half years of disciplinary confinement (although it was not proved whether the time was without interruption because of Inmate Bowe's memory lapse), had several court proceedings (Florida and federal) pending at the time of the formal hearing and did not indicate that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the Challenged Rules; Leonard Bean, another inmate who testified, has served 140 to 150 days in disciplinary confinement for multiple infractions. Although Inmate Bean testified that his co-defendant's conviction had been reversed (in February, 1991), the evidence failed to prove that Inmate Bean's conviction would have also been reversed but for his disciplinary confinement or, more importantly, would have also been reversed but for the Challenged Rules. Although Inmate Bean was released from disciplinary confinement in May, 1991, he still had not filed for habeas corpus as of the date of the formal hearing; Jimmy Stephens, another inmate who testified, has served 240 days of disciplinary confinement for four infractions during the past two years. Although inconvenienced by the limitation on library legal material use, Inmate Stephens did not indicate that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the rules at issue; Carl Watts, another inmate who testified, served 180 days in disciplinary confinement prior to being transferred to Florida State Prison and another 60 days after arriving at Florida State Prison. Inmate Watts' testimony concerning a possible habeas corpus action failed to prove that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the rules at issue; Petitioner Ramadanovic has served up to 100 days in disciplinary confinement. Although he filed two grievances dated August 22, 1990, concerning his efforts to file a brief in an appellate court proceeding, his disciplinary confinement ended August 23, 1990, and therefore, he failed to prove that he was prevented from filing a brief or any other pleading in any case pending while he was in disciplinary confinement. The evidence also failed to prove that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the rules at issue; Petitioner Van Poyck failed to prove that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the rules at issue. As long as an inmate is in disciplinary confinement, that inmate may not file an action for federal habeas corpus. An inmate in disciplinary confinement may also not file an action for habeas corpus in the State courts until some, unspecified date, which the Respondent determines is close enough to necessitate preparation of the pleadings in order to meet the time limitations on habeas corpus in Florida.
Findings Of Fact Michael A. Doub was employed as a correctional officer I at DeSoto Correctional Institution, Department of Corrections. He held this position from October 3, 1986 until he was determined to have abandoned his position on June 8, 1989. During this period, Doub's work performance had been rated at the "achieves standards" level. Doub had in excess of twenty (20) days of accumulated leave credits available for use at the time of his separation from employment with the Department. On June 4, 1989, Officer Doub was arrested by the Hardee County Sheriff's Department on the charge of sexual battery. Doub was taken to the Hardee County Jail where he was confined until he could post appropriate bail. Doub was scheduled to work from 8:00 a.m. to 4:00 p.m. on June 4, 1989. On June 4, 1989, DeSoto Correctional Institution, specifically Lieutenant James Jacobs, was notified by Sergeant J. Krell of the Hardee County Sheriff's Department of Doub's arrest, the charges pending against him and his confinement at the Hardee County Hail pending the posting of appropriate bail. Lieutenant Jacobs is Officer Doub's immediate supervisor. This contact was not initiated at Officer's Doub's request. Officer Doub was aware the Sheriff's Department had notified the Institution of his whereabouts and situation. Doub did not contact the Institution in order to specifically request that he be granted leave pending his release from jail. On June 12, 1989, Officer Doub was released from the Hardee County Jail after posting bail. On the same date, he received the letter of abandonment from DeSoto Correctional Institution. On June 12, 1989, Officer Doub contacted DeSoto Correctional Institution seeking permission to return to work. This requested [sic] was denied based on the letter of abandonment. Thereafter, Doub filed a request for review of the decision of the Institution finding him to have abandoned his position. The criminal charge of sexual battery pending against Officer Doub was withdrawn by the State Attorney of the Tenth Judicial Circuit, in and for Hardee County, Florida.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Petitioner be reinstated as a Correctional Officer I, as he did not abandon his position within the Career Service System for three consecutive workdays. DONE and ENTERED this 29th day of November, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 29th day of November, 1989. COPIES FURNISHED: Gene "Hal" Johnson, Esquire 300 East Brevard Street Tallahassee, Florida 32301 Perri King, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Ms. Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
Findings Of Fact At all times relevant to the issues herein, Respondent was licensed by the Florida Division of Real Estate under license number 0202980. On January 16, 1986, Respondent, represented by counsel, entered a plea of guilty before the Honorable Alcee L. Hastings, Judge of the United States District Court for the Southern District of Florida, to a charge of being involved in a scheme to defraud to obtain money by false pretenses by U.S. Mail, in violation of 18 U.S.C. 1341 & 1342, and conspiracy to defraud to obtain money by false pretenses in violation of 18 U.S.C. 371. Respondent was found guilty as per his plea and was sentenced, inter alia, to imprisonment in a United States Penitentiary for 4 years on the first count and for 1 year on the second, the terms to run consecutively. Respondent surrendered to authorities at the Federal Prison Camp, Leavenworth, Kansas, on May 5, 1986, and is presently incarcerated there.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law is is, therefore: RECOMMENDED that the Respondent's license as a real estate salesman in Florida be revoked. RECOMMENDED this 17th day of October, 1986 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1986. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Senior Attorney Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 William J. Hogan 25392-004 B-2 Post Office Box 1000 L.V.C. Leavenworth, Kansas 66048 Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether the Department of Corrections' decision to award a contract to Intervenor Securus Technologies, Inc., is lawful.
Findings Of Fact The Department is a large state agency whose purpose includes the protection of the public through the incarceration of criminals. It maintains 59 major institutions and 69 other facilities housing approximately 87,800 inmates. It is important for the well-being of the inmates and the security of the facilities that the inmates of these facilities have telephone services available so that they may call friends and family members. It is necessary for the Department to have a Statewide Inmate Telephone System (ITS) that provides for the needs of its inmates and for the security of Department personnel, and that also protects the public from inmate fraud. The Department provides the ITS in 77 facilities. The telephone services addressed are for outbound calls only. Persons outside of the Department are not generally permitted to telephone an inmate. Under the current contract, in order to place a call, an inmate must initiate a collect call to a number that has been approved by the Department. A conversation may ensue only if the person outside of the facility agrees to pay for the call. An inmate is allowed to have ten terminating numbers on his or her calling list. The contract sought is a concession contract. Pursuant to Subsection 945.215(1)(b), Florida Statutes, it is contemplated that the Department will receive proceeds from contracted telephone commissions. That Subsection also requires that contracted telephone companies accurately record and report all telephone calls made by inmates and requires that the Department ensure that persons who accept collect calls from inmates are charged the contracted rate. Currently, the Department has only one provider of inmate telephone services. That provider is Verizon. The ITN seeks to continue the practice of having only one provider. Securus, Verizon, GTL, and PCS are companies that provide telephone services to many state correction systems and other correctional entities. Securus provides inmate telephone services to correctional facilities in 35 Florida counties. Securus provides inmate telephone services to the Florida Department of Juvenile Justice and also, to many other states. GTL currently provides contractual communication services to Verizon as Verizon carries out its ITS contract with the Department. MCI and Verizon are deemed to be one entity for purposes of this Recommended Order. In an asset purchase agreement dated November 7, 2006, MCI agreed to sell, and GTL agreed to buy, certain assets, properties, and rights relating to MCI's inmate telecommunication business. However, this transaction had not closed when the hearing in this cause concluded. For all purposes of the ITN, Verizon and GTL were considered to be separate entities. The Invitation to Negotiate--Background James R. McDonough, the Secretary of the Department of Corrections (Secretary McDonough), concluded that there were problems with the ITS contract in March of 2006. He discussed the telephone contract with appropriate members of the Florida Legislature personally, and sent letters to appropriate members of the Legislature addressing the subject in April and June of 2006. Secretary McDonough was concerned because families of inmates had complained to him. They asserted the system required them to pay outrageous telephone rates that were "pinching their budgets." Florida procurement law states that fair and open competition is a basic tenet of public procurement. Section 287.057, Florida Statutes, requires that competitive sealed bidding be used for purchases that exceed the Category Two threshold provided for in Section 287.017, Florida Statutes. As the Verizon contract approached an end, a procurement of inmate telephone services became necessary to address future needs. This procurement substantially exceeded the Category Two threshold, as adjusted by the Department of Management Services. Lisa Bassett is the Chief of the Bureau of Procurement and Supply for the Department. Her bureau procures goods and services exceeding one billion dollars each year. She is Elaine Atwood's supervisor. Ms. Atwood is the Assistant Bureau Chief for the Bureau of Procurement and Supply. She decided that an ITN, as provided in Subsection 287.057(3)(a), Florida Statutes, was the best vehicle to use for the inmate telephone procurement because the Department was seeking innovative solutions and flexibility. Ms. Atwood was the manager of the ITN development process. It began in the spring of 2006 and was a collaborative effort. She was the principal draftsman of the ITN. Ms. Bassett made corrections to the draft and approved the issuance of the ITN. It was released on November 22, 2006. The Invitation to Negotiate--Contents The ITN stated that its purpose is to standardize inmate telephone operations, reduce rates, and maximize revenue to the State. It sought a "turn-key, fully operational, local and long distance, secure, and reliable telephone system meeting specified restriction and monitoring requirements." A five-year contract, renewable for five years was sought by the ITN. The ITN would expand payment opportunities in that it would permit a prepayment plan in addition to merely allowing collect calls. The ITN was comprised of two distinct parts as contemplated by Subsection 287.057(3), Florida Statutes. In Part 1, responders were required to meet mandatory requirements. For those that did, further evaluation took place of each responder's statement of qualifications, financial documentation, and technical response. This evaluation was conducted using evaluation criteria in the ITN and scored using the same criteria. These scores were combined with cost points assigned based on the responders' initial pricing proposal, in order to determine the initial ranking of qualified responders. In Part 2, the ITN required the Department to conduct negotiations with the three responders that survived the Part 1 evaluation. Subsequent to negotiations, the ITN required the Department to request a best and final offer (RBAFO) from the three survivors. The ITN noted that at any time during the process the Department could reject any and all responses and could modify its statement of services sought, tasks to be performed, and the project description. Section 3 of the ITN provided a "Statement of Services Sought." Generally, the Department through its ITN sought telephone services for its inmates that provided the lowest cost to the inmates and the highest commission to the Department. Included in the services sought were programs and processes designed to maximize security and avoid inmate fraud. The portions of Section 3 that are specifically pertinent follow: 3.7 Inmate Telephone System Functionality (General) The Department is seeking an Inmate Telephone Service (ITS) with a technology system fully supported by an infrastructure which has the capability to provide specified services such as secure and real- time monitoring of telephone calls meeting the Department's system security requirements. In addition, the system shall contain a secure database for transactional call records and provide data feeds to the Department's official data repository. This shall include redundant system(s) as deemed necessary to accomplish this requirement and a continuity of operations plan and disaster recovery plan which will ensure that the system and services will be available without disruption at the required service level. * * * 3.7.1. Network and Infrastructure Requirements The system shall include a monitoring component that is capable of being accessed from a vendor-provided dedicated monitoring terminal as specified for on Attachment 8 and/or through a vendor-provided secure Internet connection from desktop, laptop or remote means by authorized Department personnel who have appropriate security clearance and have been provided Contractor- supplied security codes. NOTE: Final determination of networking access will be determined through negotiation. In addition, the telephone system shall be capable of interfacing with network services provided by local exchange carriers as well as inter-exchange carriers. This includes analog and digital facilities (i.e., analog business trunk, DS-1, etc.). The Contractor shall address, in system response, the types of network services to which the system will interface and the purpose (use of a specific application) of such services for the Department. 3.7.3. Database Requirements The Department desires that a data record of all transactions through the inmate telephone system be maintained in a database for monitoring and analysis of inmate telephone calls. This data is used to alert authorized Department staff of possible trends with inmate calls that could jeopardize the security of inmates, staff, or facilities. The Contractor shall be responsible for the generation and creation of a centralized system database. The system shall provide the capability for every call in and out of the system to be recorded with a transaction record that includes, at a minimum, a recording of the telephone call in a .wav or other format acceptable to the Department. The database shall be maintained in such a manner as to allow authorized personnel the capability to review and monitor inmate call data regardless of which Department facility is housing the inmate. * * * The system shall provide the capability for the Department to download reports from the database, through secured internet access, as outlined in Section 3.12, Reporting Requirements. In addition, the Contractor shall provide access to the database through a secure "ftp" webserver so the Department can retrieve certain data on a daily basis. The Contractor shall provide certain data elements in a pipe delimited format, to be determined by the Department's Office of Information Technology. Data extracts shall be downloadable into a SQL Server database hosted by the Department of Corrections in such a manner as to allow the Department to perform further analysis on the system data. The security and confidentiality of data in the system is of critical importance. The Contractor shall be capable of recovering all inmate telephone data for all locations, to the point of full service operation, using a data backup. The Contractor shall perform all service and database back-ups and archiving. The Contractor shall provide all archival hardware, supplies, network, and recovery procedures that will ensure that no data is lost. The database shall have duplicate data storage devices with automatic fail-over and automatic re-establishment of the duplicate databases upon replacement of the failed storage device and shall be equipped with automated fire detection and suppression equipment. The system shall provide that all data be recorded with a historical transaction record and stored/archived for retrieval/backup in a database when requested by Department personnel in accordance with the following: All historical data shall be centrally stored and accessible for reporting purposes; This information must be available for reporting in a standard transaction file format; All current and historical data files shall be retained for a period of five (5) years by the Contractor; and This information shall be available at no charge to the Department after termination of the contract. * * * 3.7.4. System Calling Protocol Requirements * * * Additional system features/functionalities that the Department desires, but is not requiring as a minimum requirement for purposes of this ITN, include the following: the ability for a called party to activate a code (via the touch tone pad of their telephone) that automatically deletes their telephone number from the calling inmate's "Authorized Telephone Number List." that the above feature provide some form of alert or notification to authorized Department personnel to ensure that the inmate does not add this number to his/her requested list of telephone numbers in the future. the capability of being configured to control the amount of time between inmate completed calls. 3.7.6. System Call Blocking Requirements The Contractor shall provide a system with call block capability and shall be responsible for ensuring that the system is programmed for call blocking, to include, but not be limited to the following types of calls: calls made to business numbers identified during the billing number address (BNA) search. calls made to any 911 number; calls made to any telephone numbers which incur excess charges, such as 900, 972, 976, 550, etc.; calls to current long distance carrier access numbers (i.e., 10333, 10285) or future 101-XXXX carrier access numbers; calls for all local numbers which access long distance carriers (i.e., 950-XXXX); call access to directory assistance access numbers (i.e., 411, 555-1212, etc.); call access to toll free numbers (i.e., 800, 888, 877, etc.) except the Florida Relay Service toll-free number(s), so that hearing impaired inmates may access a "Telephone Devices for the Deaf" (TDD) service; and call access to any number upon request by the Department. Call blocking requirements shall apply to all inmate telephone equipment specified on Attachment 8. In addition, the call blocking requirement shall apply to the coin-operated telephone equipment located at the Department's road prisons and work release centers. Call blocking shall not apply to coin-operated phones for visitors or the public at large. 3.7.8. System Restriction, Fraud Control and Notification Requirements The security and confidentiality of inmate- placed telephone calls is of critical importance. Security features which prevent unauthorized individuals from accessing any information held by the Contractor must provide for restriction to the system, fraud control for prevention purposes, and notification capabilities for attempted security violations or breaches. Secure access to the system shall be maintained at all times. The Contractor shall provide a system which contains security capabilities that include, but are not limited to the following: * * * c) A call alert feature. This feature will alert Department personnel that a designated inmate is placing a call or is placing a telephone call to a specific number that has been assigned alert status. This status is an investigative tool which will be activated by authorized Department personnel. * * * 3.7.14. System Disaster Recovery The contractor shall have a written Disaster Recovery Plan and Continuity of Operations Plan and associated internal system equipment that shall be capable of providing for support in the case of failures in power, telephone system, data networking, and Contractor's equipment at its host site through the user-level equipment provided by the Contractor, and for all natural or man- made disasters including flood or fire at the host facility. These plans and all updates will be reviewed and accepted by the Department and kept for reference purposes by the Department's Local Contract Coordinator - Operations, Office of Institutions, and Office of Information Technology. The system shall be capable of recovering from a power outage automatically or remotely once commercial power is restored. 3.8.3. Rate and Call Charge Requirements * * * The Contractor shall not charge, pass on, or pass through to the customer paying for the collect calls any charges referred to as Competitive Local Exchange Carrier's (CLEC) billing cost, bill rendering fee or billing recovery fee. 3.8.5. Prepaid Collect Call Service (PPCCS) The Contractor shall allow families and friends to establish a PPCCS account(s) with the Contractor for billing purposes so that inmates can call pre-authorized numbers that may not be accessible via normal collect calling. Each prepaid account shall have an authorized billing number. Any calls billed to a family or friend's prepaid account shall meet the same security requirements as set forth for normal collect calls. The contractor shall ensure that notice of the prepaid account availability is provided when a party receives a call and shall offer the option of being connected to a live operator for the purpose of establishing a prepaid account, if a normal collect call cannot be completed by the inmate due to billing issues. The Contractor's PPCCS shall (emphasis in original) allow the called party (family and friends) to deposit money into a PPCCS account by multiple means (i.e. check, money order, and/or credit card). The Contractor shall provide instructional brochures explaining the process for establishing prepaid collect services for family and friends' prepaid accounts. The ITN stated that questions should be directed in writing to Jeri Bailey, Procurement Manager, Bureau of Procurement and Supply. The ITN set forth mandatory responsiveness requirements and fatal criteria in Section 5.1. Mandatory requirements included timely filing, the submission of a "Certification Attestation Page," and a certified "Conflict of Interest Statement." The ITN also set forth a review and evaluation process. It provided a ten phase process. After Phase 7, the posting of qualified respondents, the remainder of the phases included Phase 8, Negotiations; Phase 9, Best and Final Offers from Respondents; and Phase 10, Notice of Intended Decision. The ITN noted that Phase 2 (Evaluations of Statement of Qualifications) and Phase 8, would be completed by the Response Evaluation/Negotiation Committee. It further stated, "A Response Evaluation/Negotiation Committee will be established to assist the Department in the evaluation and selection of the three highest ranking responses." (The "Response Evaluation/Negotiation Committee" will hereinafter be referred to as the Negotiating Team.) It goes on to state, "This same team of individuals will conduct negotiations with the top three highest ranking Respondents. The Department reserves the right to make changes to the foregoing committee in the best interest of the Department." The ITN provided an elaborate scoring mechanism for Part 1 of the process. No scoring mechanism was provided in the ITN for Part 2. A process was established for addressing the possibility of identical scores in Part 1, but not Part 2. The ITN provided that only the top three respondents could participate in Phase 8, Negotiations. It noted that after negotiations, the Department would request BAFOs from each of the three winning participants. The ITN provided at Section 6.3, "After receipt of BAFOs, the Negotiating Team will prepare a summary report of negotiation and recommend an award." This sentence appears immediately before the ITN's discussion of Phase 9, Best and Final Offers. The Response Evaluation and Review Manual for the ITN provided, under Phase 9, Best and Final Offers, "After receipt of BAFOs, the Negotiation Team will review, and recommend the response which provides the best overall value to the Department. A summary report of negotiations and recommendation for award will be presented to the Secretary for final approval prior to posting of the agency's decision." Ms. Atwood testified under oath that it was intended that the "summary report of negotiation and recommendation for award" was to be presented to Secretary McDonough by the Bureau of Procurement and Supply staff, not the Negotiating Team, as suggested in paragraphs 22 and 23, above. Moreover, as noted in paragraph 19, above, the ITN provides that the Evaluation Team was established to ". . . assist the Department in the evaluation and selection of the three highest ranking responses." The Response Evaluation and Review Manual further states that the Negotiating Team was to participate only in Phases 2 and 8 of the process. It is found as a fact that to the extent that the ITN appeared to require the Negotiating Team to prepare a summary report of negotiation and to recommend an award, it is in error. It is the Department's procurement section that was to supervise the ITN process, and to forward any necessary material to Secretary McDonough. Section 7 of the ITN addressed only matters involving the contract that will ensue once the ultimate contractor is determined. On December 6, 2006, a Responders' Conference was held. Fifteen vendors attended and posed 95 questions in writing. These questions and the answers were included in what became Addendum #1 to the ITN. Addendum #1 On December 21, 2006, the Department issued Addendum #1 to the ITN. Addendum #1 removed 18 pages from the ITN and replaced them with 24 pages. It stated that revisions were highlighted in yellow. However, the Addendum #1 that became Joint Exhibit 3 had no highlights. As noted above, Addendum #1 contained a section entitled Responses to Written Inquiries. This section included inquiries from responders IC Solutions, Securus, GTL, Unisys Corporation, PCS, Verizon, and Embarq. Question 67 in Addendum #1 was posed by Verizon and read as follows: "General - Will the State allow for call control equipment to either be placed in a centralized network based environment or at each correctional facility." The Department answered by stating: "In order to prevent a state-wide or region-wide system failure, there shall be control equipment at each major institution, with the exception of Gainesville, CI, where there is additional control equipment located at the Work Camp." Addendum #1, including the page changes, responses to written inquiries, and revised attachments and exhibits became a part of the ITN just as if it was included in the original document. A change to Section 3 of the ITN, Statement of Services Sought in Addendum #1, was made causing the "call notification" feature to be mandatory rather than desired. The portion that is pertinent to this proceeding is set forth below: 3.7.4. System Calling Protocol Requirements * * * Additional system features/functionalities that the Department desires, but is not requiring as a minimum requirement for purposes of this ITN, include the following: the ability for a called party to activate a code (via the touch tone pad of their telephone) that automatically deletes their telephone number from the calling inmate's "Authorized Telephone Number List." The Contractor's system shall capture and track this event for transmittal (notification) to the Department. that the above feature provide some form of alert or notification to authorized Department personnel to ensure that the inmate does not add this number to his/her requested list of telephone numbers in the future. The Department's preferred method for receiving notification is via some method of automated system update to the inmate's account information file. Final determination of method of notification to be determined during final negotiations. the capability of being configured to control the amount of time between inmate completed calls. GTL, Embarq, PCS, Securus, Verizon, and Unisys responded to the ITN, as amended by Addendum #1. The evaluators for Part 1 of the ITN, the aforementioned Negotiating Team, were selected in order to provide representation to all of the Department's stakeholders. Selected as members were William Dupree of Facility Services, the Department's expert on the inmate telephone system; Jacques DeRemer of the Department's Inspector General's Office; Wayne Green, Assistant Bureau Chief of Security; Michael Deariso of the Bureau of Finance and Accounting; and Scott Stewart of the Division of Technology. A Response Evaluation and Review Manual, dated January 5, 2007, was provided to the members of the Negotiating Team to aid them in selecting those who would be invited to negotiate. This document provided forms to aid the evaluators as they weighed the responses in Part 1. All responses to Part 1 were opened at 2:00 p.m. on January 4, 2007. The Effect of the Part 1 Decision On January 18, 2007, the Department filed its Notice of Intent to Negotiate. It noticed its intent to negotiate with GTL, Securus, and Verizon. This meant that these three responders were technically qualified to accomplish the services required by the Department. Of the three, Securus was awarded the most points. PCS finished fourth. The Notice of Intent to Negotiate provided that any protest must be filed within 72 hours and specifically noted that the 72 hour period would expire on January 23, 2007, at 4:30 p.m. Prior to the expiration of that time, Embarq, a disappointed responder, filed a notice of intent to protest. That protest was withdrawn by Embarq on February 12, 2007. Because the Notice of Intent to Negotiate provided a clear point of entry and no protest was maintained, the time to complain about the selection of GTL, Securus, and Verizon as winners of Part 1 has passed. Therefore, Public Communications Services, Inc., should be dismissed as a party to these proceedings. Additionally, the failure by any party to protest the selection of Securus means that Securus complied with all aspects of the ITN, and allegations of noncompliance with the ITN cannot now be raised, except to the extent that the ITN was specifically changed or amended by the RBAFO. After the Notice of Intent to Negotiate was issued, negotiations with Securus were held on January 24 and 25, 2007. The Negotiating Team at this time consisted of William Dupree, Jacques DeRemer, Wayne Green, and Michael Dearisso. Ms. Bailey was present during the negotiations, and Ms. Atwood was present during a portion of the negotiations. GTL and Verizon also made presentations to the Negotiating Team. When the negotiations were completed, the Negotiating Team met to discuss what material should be included in the RBAFO. Subsequent to this discussion, the RBAFO was principally drafted by Ms. Atwood. The RBAFO The RBAFO was released on March 27, 2007. It advised that, "It contains a revised Section III [sic], Statement of Services Sought, with revised minimum specifications, where indicated, replacing the original Section 3 - Statement of Services Sought." The RBAFO stated clearly that the original ITN and Addendum #1 were incorporated in the RBAFO unless requirements were specifically changed by the RBAFO. The RBAFO contained four categories requiring each responder to explicitly address in their BAFOs. These requirements were staffing plan, final implementation plan and transition date schedule, value-added services, and pricing. With regard to pricing, the RBAFO recited that, "It is the Department's intention to generate the highest percentage of revenue for the State commensurate with the lowest surcharge and rates per minute for telephone calls for inmates and families similar to those available to the public-at-large." RBAFO changes to Section 3 pertinent to this proceeding are addressed below: 3.7.1. Network and Infrastructure Requirements The Contractor shall provide a system that includes a monitoring component that is capable of being accessed through dedicated monitoring terminals (as specified on Attachment 8) and through a vendor provided secure Internet connection from desktop, laptop or remote means by authorized Department personnel who have appropriate security clearance and have been provided Contractor-supplied security codes. The Department is requiring the ability to monitor calls from both dedicated monitoring terminals AND via secure, password protected, internet access. In addition, the telephone system shall be capable of interfacing with network services provided by local exchange carriers as well as inter-exchange carriers. This includes analog and digital facilities (i.e., analog business trunk, DS-1, etc.). The Contractor shall address, in system response, the types of network services to which the system will interface and the purpose(use of a specific application) of such services for the Department. 3.7.3. Database Requirements is changed to Database Requirements The Department desires that a data record of all transactions through the inmate telephone system be maintained in a database for monitoring and analysis of inmate telephone calls. This data is used to alert authorized Department staff of possible trends with inmate calls that could jeopardize the security of inmates, staff, or facilities. The Contractor shall be responsible for the generation and creation of a centralized system database. The system shall provide the capability for every call in and out of the system to be recorded with a transaction record that includes, at a minimum, a recording of the telephone call in a .wav or other format acceptable to the Department. The database shall be maintained in such a manner as to allow authorized personnel the capability to review and monitor inmate call data regardless of which Department facility is housing the inmate. * * * The system shall provide the capability for the Department to download reports from the database, through secured internet access, as outlined in Section 3.12, Reporting Requirements. In addition, the Contractor shall provide access to the database through a secure "ftp" web server so the department can retrieve certain data on a daily basis. The Contractor shall provide certain data elements in a pipe delimited format, to be determined by the Department's Office of Information Technology. Data extracts shall be downloadable into a SQL Server database hosted by the Department of Corrections in such a manner as to allow the Department to perform further analysis on the system data. The security and confidentiality of data in the system is of critical importance. The Contractor shall be capable of recovering all inmate telephone data for all locations, to the point of full service operation, using a data backup. The Contractor shall perform all service and database back-ups and archiving. The Contractor shall provide all archival hardware, supplies, network, and recovery procedures that will ensure that no data is lost. The database shall have duplicate data storage devices with automatic fail-over and automatic re-establishment of the duplicate databases upon replacement of the failed storage device and shall be equipped with automated fire detection and suppression equipment. The system shall provide that all data be recorded with a historical transaction record and stored/archived for retrieval/backup in a database when requested by Department personnel in accordance with the following: All historical data shall be centrally stored and accessible for reporting purposes; This information must be available for reporting in a standard transaction file format; All current and historical data files shall be retained as specified for a period of five (5) years by the Contractor. Call records detail and call recordings shall be available "on- line" for a minimum of twelve (12) months from the date of the call and call records detail shall be available "off-line" for an additional forty- eight (48) months, or a total of sixty (60) months from the date of the call. Off-line records shall be in a format readily accessible to the Department upon request. (sic) This information shall be available at no charge to the Department after termination of the contract. * * * 3.7.4. is changed to 3.7.3. System Calling Protocol Requirements. 3.7.3. System Calling Protocol Requirements * * * The following system features/functionalities are being established as a minimum requirement for service delivery: The Contractor's system shall have the capability for a called party to activate a code (via the touch tone pad of their telephone) that automatically deletes their telephone number from the calling inmate's "Authorized Telephone Number List." The system shall also provide an alert or notification to authorized Department personnel to ensure that the inmate does not add any number deleted via the above indicated feature to his/her requested list of telephone numbers in the future. The Department's required method for receiving notification is via automated system update to the inmate's account information file (sic) 3.7.6 System Call Blocking Requirements is changed to 3.7.5., but the text remains the same as in the ITN.3.7.8. System Restriction, Fraud Control, and Notification Requirements is changed to 3.7.7. The RBAFO adds subsection "i)." That addition does not affect this proceeding. 3.7.14 is changed to 3.7.13 but the language therein is unchanged. 3.8.3. Rate and Call Charge Requirements retains the same number, but is renamed Call Charge Requirements - "To Connect" Surcharges and Rates Per Minute. A new penultimate paragraph is added and the ultimate paragraph is changed, and they now read as follows: * * * There shall be no additional fees, surcharges, or other types of costs associated with collect or prepaid calls or for establishing prepaid accounts billed to either the Department or families and friends of inmates establishing prepaid accounts. In addition, the Contractor shall not charge, pass on, or pass through to the customer paying for collect or prepaid calls any charges referred to as Competitive Local Exchange Carrier's (CLEC) billing cost, or any bill rendering fee or billing recovery fee. The Contractor shall also ensure the CLEC does not charge or pass on to the customer any fees or surcharges through the CLEC, with the exception of the LEC's monthly billing fee authorized by law. The RBAFO at Section 4.1, provided instructions for submissions, including the requirement that BAFOs be submitted no later than 5:00 p.m. on April 2, 2007. Section 4.1.3 of the RBAFO was entitled "Value-added Services." It had no corresponding section in the ITN or Addendum #1. It reads as follows: 4.1.3 VALUE-ADDED SERVICES: Value-added services include any of ITS service, system or equipment functionality that the Contractor offers to provide as part of the Contract resulting from the ITN that is either not required to be provided in the ITN or RBAFO or clearly exceeds the minimum requirements of required service delivery. The Respondent shall provide a detailed description of each value-added service, system and/or equipment functionality, in narrative form. If included in the Contractor's BAFO and accepted by the Department, "Valued-Added Services" [sic] shall be provided as part of the contracted service at no additional cost to the Department. Note: Provision of E-messaging is not considered a Value-Added Service, as it is a minimum requirement of the Contractor providing Inmate Telephone Service. However, pricing for E-messaging will be separate from the costs of the Inmate Telephone service. The RBAFO at Page 24, recited the following statement: BEST AND FINAL OFFER PRICING SHALL INCLUDE ALL SYSTEMS, EQUIPMENT AND PROVISION OF SERVICES IN ACCORDANCE WITH THE MINIMUM REQUIREMENTS SET FORTH IN THE ITN, ADDENDA AND AS REVISED IN THE RBAFO. The Responses to the RBAFO and the selection process The three finalists responded to the RBAFO with BAFOs on April 2, 2007. Securus responded by reciting verbatim the items in the RBAFO and then noting after each item that they had read the RBAFO and would comply with each particular section or subsection. Securus, following that language, set forth additional information addressing how they would comply. The Negotiating Team met on April 9, 2007. They were provided with the RBAFO, the BAFOs, and a document entitled Best and Final Offer Negotiation Ranking Sheet (Ranking Sheet). The Ranking Sheet advised, "Please utilize this sheet to independently rank each vendor with comments supporting your ranking. Comments should include a reason for your decision and determination of why highest ranking respondent provides best value to the Department. Rank: 1 to 3 with 3 = Highest & 1 Lowest." Members of the Negotiating Team were advised to accomplish their rankings without discussing the material with each other. Michael Dearisso and Wayne Green signed their rankings on April 11, 2007, and William Dupree and Jacques DeRemer signed their rankings on April 12, 2007. Thereafter Ms. Bailey totaled the scores in a matrix identified as "Scoring Summarization Sheet." This resulted in GTL averaging 5.25 points, Securus 9.75 points, and Verizon 10 points. Ms. Bassett, in accordance with Secretary McDonough's standard procedure, prepared a document entitled "Inmate Telephone Services Proposed Courses of Action (COA) (Draft 4-19- 07)." This was the document that was prepared for the purpose of briefing Secretary McDonough. The first course of action was "Secretary considers rankings and selects vendor based on best value decision." The second course of action was "Secretary selects Verizon based on rankings." The COA also contained "pros and cons" under each column. The information contained in the COA was objective. In a memorandum dated April 13, 2007, Ms. Bassett provided Millie J. Seay, Director of Administration, an ITN Summary Report, the Best and Final Offer Ranking Sheets, and the Scoring Summarization Sheet. Ms. Seay was the final editor of the COA document that went to Secretary McDonough. This document, despite the "Draft 4-19-07" notation, was in fact the actual COA ultimately presented to Secretary McDonough. Ms. Seay presented these materials to Secretary McDonough and discussed the results with him. He decided that Securus would provide the best value to the Department and made a notation to that effect on the COA that was presented to him. That document was misplaced. Accordingly, he instructed Ms. Seay to post a Notice of Agency Decision stating the Department's intent to award the ITS contract to Securus. In a memorandum of May 25, 2007, Secretary McDonough stated that the offer by Securus ". . . is the best value to the State, since it provides the lowest rate for customers combined with the highest commission rate to the State and meets the service delivery requirements in the Invitation to Negotiate." Although Secretary McDonough spent only about ten minutes with Ms. Seay, as noted heretofore, he had been involved with the process of improving telephone services for inmates and their friends and family for the prior 18 months. He closely supervised the reforming of what he believed to be a very unfair ITS contract. He gave repeated instructions to his staff with regard to seeking a new ITS contract and emphasized that the central focus was obtaining a cost that was fair to the inmates and their friends and family. The staffing plan, the final implementation plan and transition date schedule, the commission rate, and value-added services were all important factors in Secretary McDonough's decision. He understood clearly that price and commission could not be the only factors, and he considered all of the factors in determining the best value to the State. He determined that the difference in the scores between Securus and Verizon was so insignificant that, excluding price, they were essentially tied. That determination resulted in price becoming the factor that tipped the scales. Subsequent to Secretary McDonough's decision to award the contract to Securus, the Notice of Agency Decision was promulgated on May 1, 2007. Issues raised by the protest Verizon's assertion that Securus was unresponsive to an asserted requirement for a premise-based system. Verizon asserted that Securus failed to agree in its BAFO, for the price quoted, to have "premise-based" call control equipment on-site at the Department's facilities, as Verizon asserted was contemplated by Addendum #1 of the ITN. This can be restated as complaining that only by having certain equipment principally located at facilities served could redundancy be achieved. This issue was addressed during testimony by Mr. Dupree, an employee of the Department. He was selected as a member of the Negotiating Team because he understands the technology of the ITS. His official title with the Department is Engineer IV. Mr. Dupree said that the current system utilizes a rack of servers at each institution. He said that it was important to him to have "the brains" at each institution. He was concerned that without having the servers located at each served institution, the failure of one system would result in a regional or system-wide failure. When questioned about the requirement for a "premise- based" system, he stated that he preferred such a system, but related that so long as a system was in place that ensured that the failure at one institution would not cause the failure at others, he would be satisfied. When he reviewed the ITN he found that the response of Securus met the test. During the negotiations, he voiced no complaint with regard to the system proposed by Securus. The few questions Mr. Dupree asked during the negotiation session with Securus addressed only the treatment of three-way calling and billing matters. Mr. Dupree provided the answer to the question posed as Question 67, as to whether ". . . the State would allow call control equipment to either be placed in a centralized network based environment or at each correctional facility?" The written answer, Answer 68, stated, in part, "In order to prevent a state-wide or region-wide system failure, there must be control equipment at each major institution." "Control equipment" does not equate to "premise-based." When Answer 68 to Question 67 is read in the context of the ITN, Addendum #1, and the RBAFO, it is clear that there is no requirement for a "premise-based" system. The word "premise-based" does not appear in the ITN, Addendum #1, or the RBAFO, even though it was repeated constantly during the course of the hearing by the Protesters. If "premise-based" means a rack of servers at each institution, it is clear that no such array was requested. In fact, the ITN was seeking redundancy (see subparagraph 15a, above); a centralized system database (see subparagraph 15c, above); duplicate data storage devices with automatic fail-over (see subparagraph 15c, above), and a disaster recovery capability (see subparagraph 15g, above). Neither Addendum #1 nor the RBAFO changed the fact that the ITN sought a centralized database without specifying whether the equipment supplying it was located at each institution, or at some other site. Mr. Dupree was not empowered to change the terms used in the ITN, Addendum #1, or the RBAFO. Answer 68, even when read in a light most favorable to the Protesters, does not require a "premise-based" system. Mr. Dupree was content with the method currently provided by Verizon, but he stated he would also be content with "some magic box that does everything." Securus addressed redundancy in the ITN under the general heading of "Premises Architecture" and in BAFO Subsection "3.7.13. System Disaster Recovery." Under the former it clearly states that in the case of a centralized failure, the system will function locally. Under the latter subsection, it responded by relating that it has a central data center connected to the "remote platforms" and notes that call records are generated at the remote sites. It further relates that, "The Securus SCP utilizes an integrated Access Device (IAD) that provides local call control and centralized storage with a built-in redundancy." In Securus' BAFO, with regard to redundancy, it again responded to "3.7.13 System Disaster Recovery," which repeated the exact wording found in Part 1, by stating, "Response: Securus has read, understands, and will comply with initial responses as previously indicated." It then repeats the answer given in the ITN. It is found that Securus was responsive to the requirements of the ITN with regard to redundancy. Moreover, and importantly, the Negotiating Team, when evaluating Part 1 of the ITN, found Securus responsive. The time for challenging that finding passed when no participant successfully challenged the Notice of Intent to Negotiate. Securus' response was not contrary to the Department's governing statutes, the Department's rules or policies, or the solicitation specifications. Verizon's assertion that Securus did not agree in its BAFO to condition 3.8.3 in the Request for BAFOs prohibiting additional charges for collect and prepaid calls. Verizon contends that Securus was not responsive to a portion of Subparagraph 3.8.3 in the RBAFO entitled Call Charge Requirements - "To Connect" Surcharges and Rates Per Minute. This section is recited at paragraph 46g, above. Addendum #1 to the ITN repeated the requirement that the contractor could not pass on to ITS users any charges referred to as Competitive Local Exchange Carrier's (CLEC) billing cost, bill rendering fee, or billing recovery fee. The RBAFO, however, added a sentence which recited, "The Contractor shall also ensure the CLEC does not charge or pass on to the customer any fees or surcharges through the CLEC, with the exception of the LEC's monthly billing fee authorized by law." Securus responded in its BAFO by repeating the paragraph and thereafter stating, "Response: Securus has read and will comply." Securus followed this with a sentence that read, "Securus will not charge, pass on, or pass through to the customer paying for the collect calls any charges referred to as Competitive Local Exchange Carrier's (CLEC) billing cost, bill rendering fee, or billing recovery fee." Mr. Dupree was aware that in some other states providers had passed on these charges, which he referred to as "surcharges." He stated that it was clear to him that the Department would not allow these charges. He stated that when the members of the Negotiating Team discussed these additional charges, they agreed that the vendors were going to have to "take it out of their hide." As noted by Negotiating Team member Green, there could be no "hidden charges." A LEC is the incumbent telephone company in an area. It is generally thought of as the local telephone company. A CLEC is typically a new entrant in a market. Subparagraphs 3.8.5 in Part 1 and 3.8.3 in the RBAFO introduced a method for friends and families of inmates to pay for calls that is not available in the current contract. This method permits friends and families of inmates to deposit funds in a prepaid account as an alternative to accepting collect calls. On March 29, 2007, two days after the RBAFO was published, the Department, in an email to Securus, GTL, and Verizon, reworded 3.8.3 of the RBAFO to read: In addition, the Contractor shall not charge, pass on, or pass through to the customer paying for collect or prepaid calls any charges referred to as Local Exchange Carrier's (LEC's) or Competitive Local Exchange Carrier's (CLEC's) billing costs, or any bill rendering fee or billing recovery fee. The Contractor shall also ensure that LEC's and CLEC's do not charge or pass on to the customer any additional fees or surcharges for billing. The Contractor shall be responsible for any such LEC or CLEC surcharge incurred if billing through the LEC or CLEC. It is clear from the changes that occurred during the ITN process that it was extremely important that fees assessed by LECs and CLECs, as well as other fees, were not to be passed on to the friends and families of inmates. The record does not indicate that either Securus, GTL, or Verizon responded to the email. Verizon's BAFO stated, "Verizon . . . hereby acknowledges and accepts the minimum specifications and will comply with the terms and conditions contained in the . . . Invitation to Negotiate . . ., the . . . Request for Best and Final Offer; and this Verizon Business response to the Best and Final Offer." Verizon did not specifically address the matters in the Section 3 Revised Statement of Services Sought. GTL's BAFO stated, "Per requirement of 4.1.5 of the Request for Best and Final Offers, GTL accepts the minimum specifications and will comply with all terms and conditions indicated in the ITN, GTL's Initial Response, the Request for Best and Final Offer and GTL's Best and Final Offer." GTL did not specifically address the matters in the Section 3 Revised Statement of Services Sought. It would be incorrect to conclude that Securus intended to limit its obligation to not pass through certain charges in its response, and thus was not responsive. The Negotiating Team did not come to that conclusion and neither does the fact finder in this case. Securus did not have to respond at all with specificity, and the acknowledgement that they had read and would comply with the section is found to be responsive, not limiting. Accordingly, Securus' response was not contrary to the Department's governing statutes, the Department's rules or policies, or the solicitation specifications. Verizon's assertion that Verizon, not Securus, received the higher score when its BAFO was ranked utilizing the objective criteria chosen by the Department for purposes of ascertaining best value to the State of Florida. The ITN did not provide that the responder with the highest score on the ranking sheets would be awarded the ITS contract. The Negotiating Team independently arrived at rankings on the Best and Final Offer Ranking Sheets. Both Mr. DeRemer and Mr. Green had some questions about properly completing the ranking sheets, and they were answered by Ms. Bassett. Ms. Bassett did not influence the outcome of the rankings of the Negotiating Team. It should be further noted that there were ten phases to the ITN, and the Negotiating Team was only involved in two of them. As noted above, Ms. Bailey totaled the scores in a matrix identified as "Scoring Summarization Sheet." This document addressed only the four items that were the main points of the RBAFO with a section for price, another for value-added services, another for final implementation and transition schedule, and one for staffing plan. This resulted in GTL averaging 5.25 points, Securus 9.75 points, and Verizon 10 points. Securus and Verizon received total scores that did not differ meaningfully. Therefore, in light of Secretary McDonough's observation that the friends and families of inmates were complaining to him about the high cost of conversing with inmates, cost became the distinguishing factor. Securus proposed a price of four cents per minute, and Verizon proposed a price of six cents a minute. Therefore, Securus had the best price when considering the rates charged to friends and families of inmates. Securus proposed a 35 percent commission to the Department, and Verizon proposed a 20.5 percent commission. Securus clearly prevailed in both categories and that is the reason Securus was selected even though Verizon had the highest numerical ranking. The Protesters complained that the Department did not provide them a method to arrive at a pricing offer because the two categories, rate per minute and percent commission, were not stated so that an "apples to apples" and "oranges to oranges" comparison could be made. This complaint is without merit. The Department clearly stated that, "It is the Department's intention to generate the highest percentage of revenue for the State commensurate with the lowest surcharge and rates per minute for telephone calls for inmates and families . . . ." An ITN was the vehicle chosen to generate those numbers precisely because the Department could not state with specificity the relative importance of the two considerations and wished for the responders to suggest the answer to the Department. The Department's action in selecting Securus despite Verizon's higher ranking was not contrary to the Department's governing statutes, the Department's rules or policies, or the solicitation specifications. GTL's assertion that Securus proposal was non-responsive because it did not include the required system for notification to the Department for inmates attempting to add numbers deleted from their authorized telephone number list. GTL asserts that Securus' BAFO was materially non-responsive because Securus did not comply with Section 3.7.3 of the RBAFO that mandated all bidders' call systems "provide an alert or notification to authorized Department personnel" any time an inmate tried to add a number to the inmate's authorized telephone number list which had previously been deleted from the list at the request of the called party. GTL further asserts that explicit compliance is mandatory and will result in rejection, citing ITN Section 1.19. ITN Section 1.19, reads as follows: 1.19 Mandatory Responsiveness Requirements/Fatal Criteria: Terms, conditions or requirements that shall be met by the Respondent to be responsive to the ITN. These responsiveness requirements are mandatory. Failure to meet these responsiveness requirements will cause rejection of a response. Any response rejected for failure to meet mandatory responsiveness requirements will not be further evaluated. Section 1.19 refers to Section 5.1 of the ITN. See paragraph 17, above. This Section does not apply to responses to the RBAFO's Section 3, Revised Statement of Services Sought. If responses to Section 3 fail to meet requirements then that failure may be addressed in the scoring mechanism. It does not mean that a single failure to respond in the BAFO requires rejection of the responder. Section 6.1.2 of the ITN provides that mandatory responsiveness requirements only apply to Phase 1 proceedings. ITN Section 3.7.4. System Calling Protocol Requirements originally had language indicating that the call blocking (Subsection a) and call alert (Subsection b) features were desired, as opposed to required. Section 3.7.4. is recited in its entirety at paragraph 15d, above. RBAFO Section 3.7.3 is recited in its entirety at paragraph 46c, above. This changed Subsections a and b so that call blocking and call alert became required. It is Securus' response to RBAFO Section 3.7.3b that is specifically at issue here. That response noted: "Response: Securus has read and will comply." Following that line, Securus' BAFO states, "Securus currently allows a called party to block his or her number from being dialed in the future. Once the called party blocks the number, the number cannot be added back to the inmate's allowed number list unless the verifiable customer of record calls in to our customer service center and requests their number be reactivated. The system will update the inmate's account information file with the blocked number status." The words used after the "read and comply" language address Subsection 3.7.3a. The absence of words addressing Subsection 3.7.3b and the provision of the call alert feature does not mean that Securus was attempting to limit its response. To the contrary, it only means that Securus did not elaborate on the assurance that it read and would comply with the requirements of all of Section 3.7.3, and there was no requirement that it do so. The acknowledgement of Securus that it had read and would comply with the section, and the language following the "read and comply" language, is found to be responsive, not limiting. Securus' response was not contrary to the Department's governing statutes, the Department's rules or policies, or the solicitation specifications. GTL's assertion that Securus' proposal deviated from the BAFO and ITN by imposing prohibited credit card payment fees, which failure wrongfully allowed it a competitive advantage and to avoid commission payments to the FDOC: (a) The Securus BAFO was non-responsive because it failed to provide for payment by credit cards without charge; (b) Securus' non-responsive bid allowed it a material competitive advantage when bidding its telephone rates and commission rate; (c) Securus' bid also deprives the FDOC of significant commission revenues. Section 3.8.5. of the ITN, which is unchanged by the RBAFO, recited at paragraph 15i, above, states that payment into a prepaid account shall be made ". . . by multiple means (i.e. check, money order, and/or credit card)." The prepaid account is referred to as PPCCS. As previously noted, the current contract allows only collect calls. This new feature establishes another method for friends and family to call inmates. Section 3.8.3 of the RBAFO, recited at subparagraph 46g, above, states, in part, "There shall be no additional fees, surcharges, or other types of costs associated with collect or prepaid calls or for establishing prepaid accounts billed to either the Department or families and friends of inmates establishing prepaid accounts." In Securus' ITN response it provides that payment to a prepaid account may be made using "Western Union Quick Collect, Visa, MasterCard by phone, check by phone, CBS website, Money Order, Cashier's check by U. S. Mail, and Friends and Family Connection Center Kiosk." CBS refers to a firm named Correctional Billing Services. Securus' BAFO response is identical to its ITN response. Securus' response does not refer to any fee for establishing a prepaid account. It says it will establish the account at no charge through CBS. The enumerated methods of paying may result in a fee to the friends and families of the inmate, depending on the method of payment chosen by the friends and families of the inmate. The Department's ITN does not ask responders to reimburse the cost of money transmittal incurred by friends and families of the inmate. If one were to read the ITN and BAFO as the Protesters would have it read, then Securus would have to provide postage stamps to persons mailing payments to the PPCCS. One paying into a PPCCS is likely to have costs. However, the costs may be a consequence of dealing with a third party money transmitter, like, for example, companies in the business of selling money orders. Securus' response recites that it will accept payment by Visa, and mentioned some other facilitators whose method of operation were not described with particularity by the evidence of record. For instance, it may be (and it is probable) that the payee in a Visa transaction must bear the transaction costs. If that is the case, Securus has agreed to pay those costs and not charge them to the payor. In Securus' BAFO, in response to Section 4.1.3: Value-Added Services, Securus, under the heading Friends and Family Assistance, offers friends and families the opportunity to speed the prepayment process through the payment of a convenience fee. This is more like a value-subtracted service since Securus has already agreed that they would accept payment at no cost using, for example, credit cards. The convenience fee alternatives would include credit cards, debit cards, Western Union, and ACE Cash Express. Importantly, convenience fees pursuant to Securus' response, could only be charged with the consent of the Department, and considering that the Department had an aversion to additional fees, as set forth in subparagraph 60f, above, and subparagraphs preceding subparagraph 60f, Department approval seems unlikely. Securus' response with regard to value-added services makes it clear that "There is never a fee imposed for establishing an account or for funding an account through a money order or check." Based on Securus' response to the ITN there is never going to be a fee charged by Securus for funding an account using "Western Union Quick Collect, Visa, MasterCard by phone, check by phone, CBS website, Money Order, Cashier's check by U. S. Mail, and Friends and Family Connection Center Kiosk" either. Because any convenience charge benefiting Securus is contingent on the Department's approval, the Securus BAFO with regard to fees is responsive and does not affect the competitive nature of the process. Securus' response was not contrary to the Department's governing statutes, the Department's rules or policies, or the solicitation specifications. GTL's assertion that Securus did not clearly propose a premise-based technical solution as required by the FDOC. See paragraph 60, above. GTL's assertion that Verizon's BAFO was materially non-responsive to the RBAFO and the ITN. This complaint is, for the most part, insufficiently specific to permit a logical analysis of the assertion. However, GTL did point specifically to a single alleged defect affecting Section 4.1.1 of the Verizon BAFO that addresses the staffing plan. The RBAFO at Subsection 4.1.1 provides the staffing positions required in Revised Subsection 3.13, Contractor Staff Requirements of the RBAFO. Revised Subsection 3.13 required the contractor to have direct oversight, be responsible for, and monitor the performance of all contractor staff, to provide adequate trained, qualified, and, where necessary, licensed staff. Revised Subsection 3.13 also set forth certain required positions in support of the contract. Verizon, in its BAFO, responded to the requirement by stating at the beginning of the BAFO that Verizon ". . . acknowledges and accepts the minimum specifications and will comply with the terms and conditions contained in the Department's Invitation to Negotiate (ITN) # 06-DC-7695 for Statewide Inmate Telephone Services dated November 22, 2006 (including any issued addenda), Verizon Business response to the ITN, the Department's request for Best and Final Offer to ITN # 06-DC-7695 dated March 27, 2007; and this Verizon Business response to the Best and Final Offer." Verizon, contrary to the assertion that Verizon failed to provide specific job descriptions for each type of position, did in fact provide detailed job descriptions for each type of position both in their BAFO and response to Part 1. Verizon, contrary to the assertion that Verizon failed to provide a percentage of time devoted to the system for each position, stated that the employees and positions listed would be full- time. It is not within the jurisdiction of the Administrative Law Judge to evaluate the submissions of the three participants in order to determine whether or not Verizon should have received the highest ranking. The information with regard to staffing submitted by Verizon was responsive to the ITN and RBAFO, and there is nothing in the record to support the assertion that the rankings were arbitrary or capricious. GTL's assertion that the entire ITN process was fundamentally flawed, which resulted in an arbitrary and capricious award. 1. "Pricing" Evaluations/Rankings. Other arbitrary and capricious ranking/evaluation. GTL asserts that in addition to being materially non-responsive, the entire ITN and RBAFO process was arbitrary and capricious because the ITN and RBAFO were arbitrary in that they did not provide criteria for scoring, which allowed the Department to score the BAFOs and award the contract to any bidder without regard to any criteria. GTL further asserts there was no objective basis or criteria or scoring methodology for selecting the contractor. GTL specifically alleges that the Evaluating Team made no recommendation of award to Secretary McDonough following its scoring process as it claims was required by Section 6.3 of the ITN. As noted in paragraphs 19, 22, 23, 24, and 25, the language in Section 6.3 of the ITN and the Response Evaluation and Review Manual for the ITN at the section entitled, Phase 9, Best and Final Offers, was placed in those documents in error. It is clear from the four corners of the ITN that it was the procurement staff that would tabulate the Negotiating Team's ranking subsequent to the evaluation of the BAFOs, and it is clear that it was the procurement staff's job to put the matter in a form that would permit Secretary McDonough to review the results and choose a contractor. Contrary to the assertions of GTL, the contract was awarded after careful thought by Secretary McDonough, and he memorialized his reasons in a memorandum dated May 25, 2007. That memorandum stated that the Department should post an intent to award the ITS to Securus after reviewing the documentation presented to him and having determined that ". . . Securus' offer is the best value to the State, since it provides the lowest rate for customers combined with the highest commission rate to the State and meets the service delivery requirements in the Invitation to Negotiate." GTL complained, like Verizon, that there was a lack of specific criteria identifying how the Department would score the pricing component. GTL suggests that this information was crucial to all bidders so that they could understand how their bid was to be measured against competitors. GTL misses the point of the ITN. It was not how a bid measured against that of a competitor that was important. The Department was seeking suggestions from the three entities presenting BAFOs as to how they could ". . . generate the highest percentage of revenue for the State commensurate with the lowest surcharge and rates per minute for telephone calls for inmates and families similar to those available to the public-at-large." Florida procurement law provides a continuum in competitive bid processes running from invitations to bid, through requests for proposals, to invitations to negotiate. Invitations to bid are used where specifications can be stated with certainty; invitations to negotiate, on the other end of the spectrum, invite responders to tell the agency the best course of action. See subparagraphs 62e and f, above. GTL's assertion that Secretary McDonough only used the cost to the friends and families of inmates in making his decision is not supported by the record. Secretary McDonough considered the BAFO rankings of Securus and Verizon to be a statistical dead heat. Thereafter, he chose Securus because it had the most advantageous pricing. GTL asserts that Negotiating Team member Mr. DeRemer ignored GTL's conformance to the RBAFO by stating under the staffing plan block, that "GTL met most requirements, no mention of CSR's." The reference to CSRs was to contractor staff requirements. GTL's BAFO includes an extensive response to the RBAFO's requirement for a staffing plan (or contractor staff requirements). Mr. DeRemer acknowledged that he was mistaken when he made that notation and did not realize his mistake until it was too late to change it. The ITN process was not fundamentally flawed. The actions of the Department in this procurement process were not contrary to the Department's statutes, or the Department's rules or policies, or to the proposal specifications.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitions of Verizon Business Network Services, Inc., on behalf of MCI Communications, Inc., d/b/a Verizon Business Services; Global-Tel Link; and Public Communications Services, Inc., be dismissed. DONE AND ENTERED this 13th day of August, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2007. COPIES FURNISHED: Susan P. Stephens, Esquire Karen E. Armstrong, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Gary V. Perko, Esquire Wesley S. Haber, Esquire Hopping, Green & Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Allan P. Clark, Esquire John A. Tucker, IV, Esquire Foley & Lardner One Independent Drive, Suite 1300 Post Office Box 240 Jacksonville, Florida 32202 Robert H. Hosay, Esquire Foley & Lardner, LLP 106 East College Avenue Highpoint Center, Suite 900 Tallahassee, Florida 32301-7732 W. Robert Vezina, III, Esquire Eduardo S. Lombard, Esquire Vezina, Lawrence & Piscitelli, P.A. 413 East Park Avenue Tallahassee, Florida 32301 Brian A. Newman, Esquire Cynthia S. Tunnicliff, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302-2095 James R. McDonough, Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Kathleen Von Hoene, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
Findings Of Fact At all times materiel hereto petitioners were inmates et Lake Correctional Institution (LCI) and were subject to discipline for failure to obey orders. Piccirillo was disciplined for failure to comply with an order to report to the infirmary or sick call. Piccirillo was aware that his name was posted on the bulletin board directing him to report to the medical department and et the time specified he failed to so report, was disciplined, and he lost gain time. A doctor visits LCI twice per week and inmates with medical problems can be seen by the doctor on these days. No patient is required to undergo medical treatment for minor ills if he so elects. Because of the limited time a doctor is available to LCI it is necessary that those inmates so designated see the doctor at the scheduled time. Inmates who do not understand an order may request clarification. If the inmate cannot read he is not punished for failure to obey written orders. Prior to disciplinary action being taken against an inmate for disobedience of orders, the disciplinary report is investigated and, after the investigator finds the charge to be true, discipline may be administered. Additionally, the inmate has a grievence procedure he may follow after the investigator recommends disciplinary action be taken. Occasionally, inmates are given orders by correctional officers which are unlawful. The inmate may obey the order and say nothing, he may obey the order and file a grievance, or he may refuse to obey he order and successfully defend the disciplinary report for failure to obey the order. It is not an offense for an inmate to refuse to obey an unlawful order.
Findings Of Fact The Petitioner, Francisco Palafox, Jr., made applications for licensure as an unarmed guard and an armed guard. In both applications he answered that he had never been arrested. The Petitioner's fingerprints were checked by the Respondent Division through the Federal Bureau of Investigation, and a record of arrest in San Francisco, California, was revealed for Frank Madrano Palafox, Social Security #560-96-6038, born January 14, 1953, in Arizona. Correspondence with the authorities resulted in receipt of records from San Francisco, California (Exhibit 1), which reveal that Frank Madrano Palafox was arrested and charged on August 21, 1973, with possession of a prohibited weapon, but later the charge was dropped to prohibited loitering while carrying a concealed weapon, a misdemeanor. Palafox's occupation on these records is given as Army. The Petitioner produced his military records of discharge (DD 214), on which Petitioner's name, birth date, social security number and birth place were the same as that on the FBI report. Petitioner said that at the time of his arrest he had loaned his identification to another soldier. However, his DD 214 show that he was on leave at the time the arrest occurred, and that he was charged for excessive unearned military leave for the same number of days the arrest record shows that Palafox was jailed. The Petitioner then remembered he was arrested for "aiding and abetting prostitution." The Petitioner did not report the arrest for aiding and abetting on his application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Petitioner's applications for licensure as an unarmed guard and an armed guard be denied. DONE and ORDERED this 9th day of January, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Francisco Palafox, Jr. 1551 Michigan Avenue, Apt. 12A Miami Beach, Florida 33139
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent Tanika Parker was certified as a correctional officer in the State of Florida by the Criminal Justice Standards and Training Commission on September 9, 2005, and was issued correctional certification number 251547. (admitted fact) From August 13, 2004, until July 13, 2006, Respondent was employed as a correctional officer by the Florida Department of Corrections and was assigned to the Dade Correctional Institution. (admitted fact) On January 9, 2006, Respondent applied for a correctional officer position with the Palm Beach County Sheriff's Office. (admitted fact) On March 10, 2006, as part of the Palm Beach County Sheriff's Office application process, Respondent answered the written question: "Have you had an unprofessional relationship with an inmate, detainee, probationer or parolee, or community controlee [sic]?" by circling on the form as her response: "No." (admitted fact) Also during March 2006, George Montenegro, a Senior Inspector in the Department of Corrections Inspector General's Office assigned to the Dade Correctional Institution, received information from a confidential informant that Respondent "was involved with" an inmate with the nickname of "Plump." Although an investigation was begun, it was not until early July when a second confidential informant disclosed the identity of Plump. It was inmate Leroy Rogers. Thereafter, Plump's phone calls were monitored, and his cell was searched on July 21, 2006. Among other items in Plump's cell were 34 photographs. At that point Respondent had resigned and was no longer an employee of the Department of Corrections. Since Respondent was in the process of being hired by the Palm Beach County Sheriff's Office, Inspector Montenegro contacted that agency and spoke with Eric Monath, a Sergeant with the Palm Beach County Sheriff's Office Division of Internal Affairs. The 34 photographs taken from Plump's cell included the following: one of a cake inscribed "Happy Birthday Plump"; one with a little girl licking the icing off the cake knife; two of the front of Respondent's residence with the little girl in front; eleven more of the little girl at various locations; one close-up of an adult female's breasts; six close-ups of an adult female's naked genitalia; eight of an adult female's genitalia and/or buttocks either partially or fully covered by underwear; one of a T-shirt decorated with two hearts, one of which was inscribed "Plump" and the other one "Plumpness"; and three of a woman in that T-shirt, wearing some of the same underwear depicted in some of the other pictures. The photos of the naked or clothed woman do not show the woman's face, head, or neck. They only focus on a particular part of the female's anatomy. One of the pictures, however, shows the female from behind with her hands on her hips, and that one reveals a scar or discoloration on the woman's left, inside forearm. On July 27, 2006, Respondent attended an orientation session at the Palm Beach County Sheriff's Office, wearing a sleeveless shirt. Sergeant Monath saw that same identifying mark on Respondent's forearm. On August 1, 2006, Sergeant Monath met with Inspector Montenegro at the Walgreen's near Respondent's residence and presented the photos with the identifying Walgreen's information on the back of each one to the store's manager. The store manager confirmed that the identifying information was for that store and, using it, checked the store's computer records. The customer for whom the photographs were developed was Respondent. Inspector Montenegro and Sergeant Monath then drove to Respondent's residence and compared the front of the structure to the structure depicted in the photographs. It was the same, including the location of the sprinkler head in the front yard. The monitored phone calls made by Plump were to a female who was never identified in the phone calls. However, during one of the calls, the female yelled instructions to someone in the background named Taliyah. Respondent's application for employment by the Palm Beach County Sheriff's Office listed as the only person living with her, her daughter Taliyah Wilcox. Inmate Rogers' visitor log shows that Respondent visited him thirteen times between November 4, 2006, and July 7, 2007. She listed herself as a "personal friend."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations in the Administrative Complaint filed against her and revoking her correctional certificate numbered 251547. DONE AND ENTERED this 7th day of September, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 2007. COPIES FURNISHED: George G. Lewis, Esquire George G. Lewis, P.A. 950 South Pine Island Road, Suite 150 Plantation, Florida 33324 Sharon S. Traxler, Esquire Department of Law Enforcement - 7100 Post Office Box 1489 Tallahassee, Florida 32304 Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
