Findings Of Fact (Because the Petitioner's findings of fact were not numbered, a number has been assigned to each paragraph beginning with the first paragraph of page 1). Partially adopted in findings of fact 5, 6, 8 and 9. The proposed finding that "the Petitioner continuously notified her employer of her medical condition by telephone" is rejected as misleading and not supported by competent substantial evidence. The proposed finding that the Petitioner was released on August 31, 1985 with physician's instructions to "go home and have complete bed rest" is rejected as not supported by competent substantial evidence. Partially adopted in findings of fact 4, 11, and 19. Matters not contained therein are rejected as misleading and/or a recitation of testimony. Covered in conclusions of law section. Rejected as legal argument. Partially adopted in findings of fact 4, 6, 7 and 15. Matters not contained therein are rejected as subordinate. Partially adopted in findings of fact 4 and 7. Matters not contained therein are rejected as subordinate. Partially adopted in finding of fact 10. Matters not contained therein are rejected as recitation of testimony. Adopted in findings of fact 11, 12, 13 and 14. RULINGS ON PROPOSED FINDINGS OF FACT, SUBMITTED BY THE RESPONDENT (None submitted)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: The Department of Administration enter a final order re- instating Petitioner to her position as a toll collector at the Mathews Bridge toll facility in Jacksonville, Florida; and It is further Recommended that Petitioner's request for back pay and benefits from September 17, 1985 be DENIED. DONE and ORDERED this 21st day of March, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administration Hearings this 21st day March, 1986. COPIES FURNISHED: Charles G. Gardner, Esq. Department of Transportation Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Brenda Washington 28 West 28th Street Jacksonville, Florida 32206 Sharon A. Hood Staff Representative AFSCME, Florida Council 79 6308 N. Main Street Jacksonville, Florida 32208 Richard L. Ropel, Esq. Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Kathryn L. Ward, Esq. 345 S. Magnolia Drive Suite F-21 Tallahassee, Florida 32301 Gilda H. Lambert Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Augustus D. Aikens, Esq. General counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
The Issue The sole threshold issue in this bifurcated proceeding is whether Petitioner has met her burden of proving grounds for equitable tolling as a defense to the admitted untimely filing of Petitioner's request for an administrative hearing. Consideration of the merits of Petitioner's challenge to the initial agency action was deferred, pending the threshold determination of whether the challenge can be heard.
Findings Of Fact Petitioner's husband was a State of Florida employee. He passed away in 1999. As the surviving spouse of a former State of Florida employee, Petitioner is entitled to, and has obtained coverage under, the state's group health insurance since 1999. Since sometime in 2002, Petitioner has also had Medicare health care coverage. However, Petitioner continued to pay the individual monthly premium rate for state group health insurance through May 2010, instead of the lower monthly rate applicable to someone who also has Medicare coverage. In May 2010, Petitioner submitted a written request to change her state group health insurance coverage level to accurately reflect the lower monthly Medicare rate and to refund the difference in premiums between the regular premium rate she had been paying and the lower Medicare rate from May 2002 to May 2010. Petitioner's May 2010 written request for changed coverage and reimbursement of overpaid premiums was not offered into evidence. By certified letter dated June 2, 2010, the Department responded to Petitioner's May 2010 written request. The Department advised that it was granting Petitioner's request to change her coverage level to reflect that she has Medicare coverage and that Petitioner's request for a refund was granted, in part, and denied, in part. The letter advised Petitioner of her right to an administrative hearing to contest the partial denial and enclosed an informational page specifying how and when to request such a hearing. In addition, enclosed with the letter were copies of Florida Administrative Code Rules 28-106.201 and 28-106.301, which codify the manner for initiating proceedings when there are disputed issues of material fact and when there are no disputed issues of material fact, respectively. The Department's certified letter was delivered to Petitioner's home on June 5, 2010. Petitioner was at home and personally signed the certified receipt for the Department's letter on June 5, 2010. Petitioner testified that she does not remember answering the door when the Department's certified letter was delivered to her home, nor does she remember signing the certified receipt, even though she acknowledged that she did so on June 5, 2010. Petitioner and her daughter, Ms. Viegas, testified that Petitioner has had mental health issues since 2001, when Petitioner became depressed not too long after her husband died in 1999. Petitioner testified that she has been seeing a psychiatrist since 2008 and has been taking medication prescribed by the psychiatrist for depression. No evidence was presented to establish how frequently or infrequently Petitioner was seeing a psychiatrist, nor was any evidence presented with respect to the type or dosage of medication Petitioner has taken. Neither the psychiatrist whom Petitioner said she had been seeing, nor any other expert testified with respect to Petitioner's medical or psychological condition, and no medical records were offered into evidence. Throughout the years of Petitioner's chronic depression, Petitioner has lived in her own home, at times alone or with a gentleman who lives there now and is now 81 years old. In addition, in June 2009, Ms. Viegas moved in with Petitioner and has lived there continuously since that time. Ms. Viegas is 39 years old and is unemployed. Since Ms. Viegas does not work, she is present at the home 90 percent of the time. Ms. Viegas testified that the reason she moved in with Petitioner was because Petitioner needed her help with business and other needs and, also, because Ms. Viegas broke up with her boyfriend with whom she had been living. Petitioner's other daughter, Cindy, also helps out. Cindy is a regular visitor and helps with household tasks, such as doing laundry, paying bills, and calling banks on Petitioner's behalf. According to Ms. Viegas, Petitioner's chronic depression got worse in late January or early February 2010 and remained bad until sometime in July 2010, when Petitioner's medication was changed. As described by Petitioner and Ms. Viegas, in Petitioner's worsened state for this six- or seven-month period in 2010, Petitioner slept most of the day in addition to at night. Petitioner did not clean the house or cook her own meals, and she did not bathe until Ms. Viegas pushed her to bathe. Because Petitioner was not cooking her own meals, she either ate peanut butter sandwiches or went out to eat at a restaurant. Petitioner testified that during this period when her depression worsened, she frequently went out to eat. Petitioner also acknowledged that she has had a valid driver's license and a car and that she would drive herself around, sometimes alone with no passengers. Despite the fact that Ms. Viegas moved in with Petitioner to help with her business and other needs, Ms. Viegas testified that her mother was able to keep up with her own business affairs pretty well until she got worse in January or February 2010, at which point bills frequently would go missing, and Ms. Viegas would realize that when second notices were received. Even before Petitioner got worse in early 2010, important mail, such as utility bills, would occasionally go missing. Ms. Viegas explained that she was reluctant to impose tighter controls to address this chronic issue, because she did not want to give her mother the impression that she (Ms. Viegas) did not have faith in her mother's ability to handle her own business. In addition, Ms. Viegas was unwilling to restrict her mother's freedom to walk outside to the mailbox to collect the mail or to get the mail while she was out walking their poodle. Instead, Ms. Viegas just dealt with the repercussions of the occasional lost mail. Ms. Viegas acknowledged that the problem of missing important mail, such as bills, became a more frequent occurrence when Petitioner's condition got worse in January or February 2010. Still, Ms. Viegas and Petitioner did nothing different with regard to the mail routine. No evidence was presented that Petitioner's depression ever became so severe that Ms. Viegas and/or Petitioner contemplated hospitalization or some form of more intensive treatments beyond periodic office visits with a psychiatrist. Petitioner has not been adjudicated incompetent of handling her own affairs, and no guardian has been appointed to manage Petitioner's affairs, nor was there evidence that such a step was ever contemplated. The evidence suggested to the contrary-- that Petitioner led an independent lifestyle and that Ms. Viegas was unwilling to, and apparently believed it was unnecessary to, restrict Petitioner's freedoms. Petitioner testified that in July 2010, her psychiatrist changed her medication, and after that, Petitioner felt better and began cleaning house, cooking, and doing other things she had not been doing. Petitioner found the letter from Respondent, showed the letter to Ms. Viegas, and asked Ms. Viegas to help. Ms. Viegas prepared a letter requesting an administrative hearing to dispute the partial denial of Petitioner's overpayment refund request. Ms. Viegas testified that she knew enough to prepare the letter without Petitioner's help, because Ms. Viegas knew all about Petitioner's dispute with the Department. Ms. Viegas had no problems understanding from the Department's notice how to request an administrative hearing for Petitioner. Ms. Viegas reviewed her draft with Petitioner to make sure there was nothing Petitioner wanted to change or add. The request for administrative hearing prepared by Ms. Viegas was signed by Petitioner on August 13, 2010, and sent to the Department where it was filed on August 16, 2010, nearly seven weeks after the 21-day deadline specified in the letter for filing a request for administrative hearing. Petitioner does not assert that she was misled or lulled into inaction by anything said or done by the Department's representatives. Petitioner does not assert that the Department's notice was unclear or confusing with regard to when, whether, or how Petitioner needed to request an administrative hearing to contest the Department's proposed action. Instead, her sole contention is that her "diminished mental capacity"1/ constitutes an extraordinary circumstance that prevented her from timely filing her request for hearing. The greater weight of the credible evidence does not support a finding that during the six- or seven-month period in 2010, when Petitioner's depression worsened, her condition rendered her incapable of functioning. The facts are inconsistent with the suggestion of a debilitated state. Petitioner drove a car, sometimes by herself; collected the mail from the mailbox herself; walked her pet poodle; and went out for meals when she tired of peanut butter sandwiches. Though she did not, herself, clean the house or cook meals, she had the help of two daughters, one of whom lived in the house and had no other job besides helping Petitioner. Moreover, in May 2010, Petitioner was capable of submitting an appropriate written request for change of insurance coverage level and for refund of overpaid premiums; and on June 5, 2010, Petitioner was able to respond to receive the delivery of the certified letter on June 5, 2010, and to sign the certified receipt with a clear, steady signature. Based on the credible evidence, the undersigned is unable to find that Petitioner's condition rose to an extraordinary circumstance, such that she was "prevented" from timely filing a petition. "Prevented" suggests an external factor beyond one's control, something far beyond one's own lack of reasonable prudence. As Petitioner and her live-in daughter observed Petitioner's worsening condition, reasonable prudence would have mandated an adjustment in protocol. It defies credibility to suggest that Petitioner's condition worsened to the point that it was impossible for Petitioner to care for herself and tend to her business and that Ms. Viegas would have stood by unwilling to assume full responsibility for Petitioner, including dealing with day-to-day business affairs. It must be emphasized that no medical testimony and no medical records were offered to support the testimony of Petitioner and her daughter regarding Petitioner's condition during the critical time of June and July 2010. Not only are Petitioner and her daughter lay witnesses who lack the expertise to offer medical opinions, but these two witnesses share an interest in characterizing Petitioner's condition, in this proceeding, as extreme and extraordinary. Instead, the impression given by the inconsistencies noted above is that Petitioner's condition was neither extreme nor extraordinary, but, rather, was chronic and manageable or at least accepted as the norm for the household. If Petitioner's condition were as extreme and debilitating as suggested for purposes of arguing equitable tolling, it would have been reckless for Petitioner to be allowed to continue driving her car. If, in fact, Petitioner was unable to function or comprehend day-to-day occurrences, there would be no excuse, in the exercise of reasonable prudence, for Ms. Viegas, who was not otherwise employed and was living in the home for the expressed purpose of helping Petitioner, to not have assumed full responsibility for her mother's functioning and dealing with day-to-day business affairs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that Respondent, Department of Management Services, enter a final order dismissing the petition for administrative hearing filed by Petitioner, Mary Ann Steadman. DONE AND ENTERED this 26th day of January, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2011.
The Issue Whether Larry Williams abandoned his position of employment with the Department?
Findings Of Fact Larry Williams worked for the Department for approximately 7 years. During the portion of 1987 that Mr. Williams worked for the Department he was employed as a Supervisor 1. Mr. Williams received a copy of an Employee Handbook upon his employment with the Department. The Employee Handbook informed the Petitioner of the rules governing absences from work, including the Department's rule that an employee will be treated as having abandoned his position if the employee is absent for 3 consecutive workdays without authorized leave. Prior to May 29, 1987, Mr. Williams was assigned to a Bridge Unit of the Department. The Bridge Unit worked out of the Ellis Road yard of the Department located in Jacksonville, Duval County, Florida. Duval County is part of the Department's District Second. By Memorandum dated May 21, 1987, Mr. Williams was informed that he was being reassigned from the Bridge Unit to the Jacksonville Maintenance Unit. He was ordered to report to the Department's sub-maintenance yard at Doctor's Inlet on May 29, 1987. Doctor's Inlet is located in Clay County, Florida. The supervisor of the Doctor's Inlet yard was G. C. Carter. James M. Griffis, a technician at the time at issue in this proceeding also worked at the Doctor's Inlet yard. During the period of time that Mr. Williams was assigned to the Doctor's Inlet yard he occupied a supervisory position between Mr. Carter and Mr. Griffis. Despite this fact, when Mr. Carter was absent from work, Mr. Griffis was placed in charge. This created a problem with Mr. Williams which he discussed with Department employees with supervisory authority over Mr. Carter. Although some efforts were made, the problem was not rectified. On July 30, 1987, Mr. Williams went to the Ellis Road yard and asked to speak with Jesse A. Mann, Mr. Carter's immediate supervisor. Mr. Williams indicated that he was having car troubles and asked if he could work out of the Ellis Road yard that day instead of going to Doctor's Inlet. Mr. Mann informed Mr. Williams that his assigned station was Doctor's Inlet and denied the request. Mr. Williams also asked for permission to drive a Department vehicle to Doctor's Inlet. This request was also denied. Although Department employees had been allowed to use Department vehicles to travel from Ellis Road to other locations, the evidence failed to prove that employees had been allowed to use Department vehicles because their cars had broken down. Mr. Mann told Mr. Williams that he could take a couple of days off in order to get his car repaired. Mr. Mann was authorized to approve leave for Mr. Williams. Mr. Williams told Mr. Mann that he did no have the money to get his car repaired and left without indicating whether he would take time off or not. On Friday, July 31, 1987, Mr. Williams did not report to work. Nor did Mr. Williams notify the Department that he would not be at work that day. On Monday, August 3, 1987, and Tuesday, August 4, 1987, the next working days after July 31, 1987, Mr. Williams did not report to work. Again, Mr. Williams did not notify the Department that he would not be at work. On occasions when Mr. Williams has taken approved leave in the past, his absence has been approved verbally. Only after Mr. Williams has returned from those absences has a written approval form been executed by the Department and Mr. Williams. By letter dated August 5, 1987, the Department notified Mr. Williams that he had been removed from his position with the Department pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code. By letter dated August 12, 1987, Mr. Williams requested a formal hearing to contest the Department's decision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Petitioner, Larry Williams, has not abandoned his career service position with the Department. DONE and ENTERED this 16th day of February, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1988. COPIES FURNISHED: Larry Williams Kaye Henderson, P.E., Secretary 617 West 44th Street Department of Transportation Apartment 191 Haydon Burns Building Jacksonville, Florida 32208 605 Suwannee Street Tallahassee, Florida 32399-0450 Charles G. Gardner, Esquire Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building Augustus D. Aikens, Jr. 605 Suwannee Street General Counsel Tallahassee, Florida 32399-0450 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration Thomas H. Bateman, III 435 Carlton Building General Counsel Tallahassee, Florida 32399-1550 562 Haydon Burns Building Tallahassee, Florida 32399-0450
Findings Of Fact Petitioner, Grey C. English, has worked for DOT, primarily in its Okeechobee, Florida office, for approximately seven years. At the time in question, he was serving as an HMT II, crew leader, with job duties that included various equipment and machinery maintenance and general road work. In some cases he served as crew leader and in other cases, he was merely a member of the crew. In April, 1986, Mr. English filed a charge of discrimination against DOT before the Florida Commission on Human Relations alleging that he had been passed over for promotion and discriminated against therein because of his race (Black). Part of the allegation involved Mr. R. C. Roberts, who concurred in the selection of another applicant over the Petitioner when he knew there was an irregularity in the selection process. Petitioner presented this evidence in an effort to discredit Mr. Roberts' testimony for Respondent here on the basis of bias, but was unsuccessful. In January 1987, Petitioner and DOT entered into a settlement agreement which disposed of the Petitioner's charge of discrimination without assessing blame, but as a result of which, Petitioner was paid the sum of $2,656.40. This sum was paid by state warrant dated February 13, 1987 which, it is concluded, was received by Petitioner several days later. Attendance documents maintained by DOT reflect that on February 13, 1987, which was a Friday, Petitioner was on authorized leave without pay. On February 16, 1987, the following Monday, he worked 7.3 hours and was authorized leave the remainder of the time. Between Tuesday, February 17 and Thursday, February 19, 1987, Petitioner was present for duty performing safety duties. However, on Friday, February 20, 1987, he was placed on unauthorized leave without pay and remained in that status through March 19, 1987. Michelle L. King, Petitioner's immediate supervisor, relates that on February 19, 1987, when Petitioner came to work, she advised him where his work site would be and with whom he would be working. According to Ms. King, when so advised, Petitioner indicated he would not work with Mr. Mills, apparently one of his prospective co-workers, and walked off the job. Shortly thereafter, Ms. King received a phone call from Petitioner's mother who advised her that Petitioner's grandfather was seriously ill and in the hospital and Petitioner's presence was needed at the hospital to assist in caring for him. When Ms. King immediately went to look for Petitioner, she found him sitting in his car approximately one half block from the DOT yard where she advised him of the message she had received. At this point; Petitioner immediately left the area presumably to go to the hospital. According to Ms. King, he did not ask permission to leave then nor did he ask for any time off during the succeeding days for which he was marked in an unauthorized absence status. During that entire period, however, she did not try to reach him by phone or in person even though she had his phone number on record in the office and knew where he lived. She admits she made no effort to reach Petitioner to tell him his job was in jeopardy because she felt, he had walked off the job and was not, therefore, entitled to that consideration. She merely reported the Petitioner's status to her supervisor, Mr. Lanier, and considered the matter closed. Mr. Lanier indicates he made no effort to contact Petitioner either. Petitioner admits that he was sitting in his car with the mechanic who repaired it; away from the job site, when he was advised of his grandfather's illness. He contends he had left the job earlier that morning because he, himself, was ill, not because he did not want to work with Mr. Mills and he contends that his continued absence from work was occasioned by the need for him to remain with his grandfather in the hospital for the period of time of his absence because there were no other family members available to do so. He contends he stayed with his grandfather, who was ill with and ultimately died of cancer, the entire time. There is no evidence of record, however, to indicate that Petitioner requested or was placed on sick leave when he left work on the morning in question. Petitioner also claims that on one occasion several days after February 19, 1987, he met Ms. Kings, Ms. Chapman, and Mr. Lanier, another supervisor, in a local restaurant during the lunch hour. At that time he told them that he would have to have some time off for a few days because of his grandfather's illness but that he would stay in touch. Petitioner contends that this absence was approved by either Mr. Lanier or Ms. King and he was given no instructions to call in or take any other action regarding his absence. The meeting is confirmed by Mr. Branchaud, a co-worker, who observed Petitioner in a conversation with Mr. Lanier but he cannot say for certain what the specifics of the conversation were. Both Mr. Lanier and Ms. King deny any such meeting took place and this is confirmed by Ms. Chapman. Ms. King and Ms. Chapman, as well as Mr. Lanier, though all employees of DOT, have nothing to gain by telling an untruth or giving perjured testimony regarding the situation involving Petitioner. Consequently, it is found that Mr. English did not get permission from either Mr. Lanier or Ms. King to be absent, and that, therefore, his absence between February 19, 1987 and March 10, 1987 was unexcused. During the period of Petitioner's absence, on March 4, 1987; a DOT official, by certified letter, advised him of his continued absence without approved leave and directed him to report to his duty section by 8:00 am on March 9, 1987 under pain of termination for a failure to comply. The return receipt executed by someone reflecting Mrs. Grey English indicates that the letter was received at Petitioner's home address in Okeechobee on March 11, 1987, one day after the action was taken to terminate him. Petitioner contends that he did not receive that letter and that on the date in question, there was no Mrs. Grey English. He was living at that residence, he contends, with his mother whose name is not English. No other female at that address bore the name Mrs. Grey English. The girl friend who he sometimes identified as his wife was not living at his address at the time the letter was received and did not sign for it in his behalf. Be that as it may, the letter was receipted for by an adult at the Petitioner's address. He did not, however, thereafter comply with the terms of the letter and termination action was taken by DOT on March 10, 1987 when the District Director sent him a letter notifying him of his termination by certified mails return receipt requested. Petitioner, as was stated previously, denies any intention to abandon his position and denies having received any letter of warning. He was, however, fully aware of the department's procedures for obtaining leave authorization and obviously failed to take any of the necessary steps to secure that authorization, instead relying on a purported casual meeting with his supervisor at a restaurant where he supposedly received verbal permission to be absent. This is not persuasive. His credibility, in addition, is somewhat suspect in that he has already demonstrated his willingness to falsify official documentation if it suits his purpose. Petitioner admits that several years prior to the instance in question, he, though not married, filled out certain official documentation for DOT claiming his girlfriend to be his wife for the purpose of putting her on his record as beneficiary of his insurance with the department. He claims he was advised by some official of the department to do this but does not indicate who this individual was. Even if that were the case, he recognized at the time that the lady was not his wife and was nonetheless willing to falsify documentation if it was to his benefit to do so. Consequently, his willingness to be less than candid when it suits his purpose to be so has been established and in this case, the better weight of the evidence establishes clearly that notwithstanding his protestations to the contrary, he walked off the job without authority and made no effort to take any action necessary to preserve his employment status. It is, therefore, concluded that he did abandon his position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Grey C. English, be terminated from employment with the Department of Transportation effective March 11, 1987. RECOMMENDED this 18th day of September, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1931 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner 1-2. Accepted and incorporated in Findings of Fact 1. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 10, except for the last section thereof relating to a restatement of his testimony at the hearing, which is not a Finding of Fact. Rejected as contrary to the weight of the evidence. Accepted. Rejected. Petitioner was not terminated for excessive absenteeism. The respondent was considered to have resigned his position with the Department of Transportation and the rules regarding disciplinary termination are not relevant to this situation. 9-12. Irrelevant. 13-17. Rejected as not Finding of Fact. By the Respondent Accepted. Accepted and incorporated in Findings of Fact 9. 3-4. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 10. Accepted and incorporated in Findings of Fact 10. Accepted and incorporated in Findings of Fact 9. 8-9. Accepted. 10-13. Irrelevant. Rejected as not a Finding of Fact. Accepted. COPIES FURNISHED: Isidro Garcia, Esquire Florida Rural Legal Services, Inc. 572 S.W. 2nd Street Belle Glade, Florida 33430 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Kaye Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450
Findings Of Fact Respondent Pobst had been employed by Petitioner and had obtained permanent status in the career service as a half-time University Parking Patroller, at the time he transferred to the position of Motor Vehicle Operator (MVO) on Friday, April 18, 1986. At that time, he came under the supervision of Terry Fisher, Store Supervisor of the University's Central Receiving Department. The MVO position was full time, with regular hours of 8 a.m. to 5 p.m., and Pobst was on probationary status in that job classification at all times relevant to these proceedings. Prior to being hired in that position he had been counseled by Eugene Weber, Stores Manager (supervisor to Terry Fisher), concerning abuse of leave, but the emphasis was on sick leave abuses. On Monday, April 28, 1986, Pobst reported one hour late due to a weekend holdup, and immediately requested and received authorization from Fisher to take unpaid leave so as to obtain a copy of a report from the Tampa Police Department. Pobst had no annual leave available. When he transferred positions he was already in arrears for time off and already owed money for that time off. Fisher requested that Pobst telephone him later in the day. Respondent completed his business with the Tampa Police Department late in the day and did not need additional time. Nevertheless, he did not call Fisher because the work day was completed when he had the first opportunity to call in. Both Pobst and Fisher understood that Pobst would return to work no later than the beginning of the workday on Tuesday, April 29, 1986. Fisher would have granted additional leave on the same terms (unpaid leave with payroll deduction) had Pobst called in, however, Pobst never called in. Pobst did not report for work on Tuesday, April 29; Wednesday, April 30; Thursday, May 1; or Friday, May 2. From the time Respondent left Fisher on the morning of April 28 until the morning of Sunday, May 4, 1986, Respondent had no contact with his immediate supervisor or with any other individual in his chain of supervision at the University. Late the night of April 28, Pobst was injured in a fight. At 12:30 a.m. on April 29, Pobst was arrested for aggravated assault. The charge was ultimately dismissed by the Hillsborough County Circuit Court. However, he arrived at Hillsborough County Sheriff's Central Booking at 2:20 a.m., was booked at 4:54 a.m., and processed at 6:15 a.m. on April 29. From 2:20 a.m. until 6:15 a.m. on April 29, Pobst was either in a Booking/Releasing Section holding cell without telephones, or on a bench in the Receiving Area with two regular local-only telephones as well as two collect-only telephones that resemble pay telephones. He made one telephone call from a collect call telephone. He made that call to the information operator, in an attempt to get Terry Fisher's home telephone number. The call was refused by the information operator because it "was made from a collect call telephone." Respondent was not allowed to make a second telephone call at that time but was told by the officer in charge of him that he would have an opportunity later to make another call. In any case, Pobst would have been unsuccessful in getting Terry Fisher's home phone number because it was unlisted. He did not again ask to use the telephone for the remainder of April 29, 1986, either during business hours when he might have reached Fisher at work or after business hours. From 6:15 a.m. until approximately 1:00 p.m. on April 29, Respondent was in a Housing and Support Section holding cell consisting of three rooms: a dayroom with collect-only telephones that resemble pay telephones; a sleeping room without telephones; and a vestibule between the sleeping and dayrooms. This was cell 200C/2, which is one of several individual sleeping rooms opening onto a common dayroom with collect-only telephones operable from 7:00 a.m. until 11:00 p.m. Although the sleeping area and dayroom are normally kept locked, confined persons usually have free access to both areas 24 hours a day. However, there are times and circumstances in which the areas are separately locked, and confined persons do not have such free access. At approximately 1:00 p.m. on April 29, Respondent was moved to the infirmary for examination and on medical staff instruction was placed in cell 200C/2 "B", a lockdown cell for medical observation. This particular lockdown cell was intended for confined persons who were deemed to need psychiatric observation. In the psychiatric medical lockdown area, incarcerated persons normally are allowed out of their cells for one hour per day to take a shower, watch television, or make telephone calls. However, special circumstances or inappropriate behavior may result in an inmate being denied the opportunity to leave his cell on any given day. Respondent had no access to a telephone during the move, wait, or infirmary/dispensary visit. Although Pobst's testimony emphasized his physical injuries and confused state of mind resulting from the assault by third persons leading up to his arrest in the midnight hours of April 28-29, he also related that while awaiting medical examination on April 29, he engaged in a fight with three police officers who requested that he undress for the physical examination. It appears to be this belligerent attitude which resulted in his being confined in restraints thereafter. Respondent's candor and demeanor and various inconsistencies in his testimony do not render him credible on the issue of inability to contact his employer during the whole of the time prior to his being placed in restraints or the period after he was released therefrom. His testimony that he was so confused at all times that he could not ask for a phone is not believable in light of the police log that he was in "good" condition on May 2, the testimony of Officer Blackwood that even a very "bad" prisoner would get to use the phone or write a letter if he just asked to do so, and that the property inventory showed Pobst had available $.85 for stamps or a local phone call. For these same reasons, Respondent's testimony that he was not permitted to use the phone at any time is not credible. Respondent's father testified to Respondent's disheveled and beat-up appearance on Friday, May 2, but Respondent appears to have been capable of coherent conversation. Respondent did not visit a medical doctor until May 7, 1986, five days after his release, and then did so primarily for the purpose of obtaining a medical excuse in an attempt to be rehired. Pobst was first placed in restraints at some time on Wednesday, April 30, and was in and out of restraints that day and the next, Thursday, May 1. An individual is placed in medically-approved restraints if he is viewed by the staff as a danger to others, or if the medical staff believes that he is at risk to commit suicide. An individual in restraints may not be allowed out of his cell on any given day and in this condition he is not permitted to use the telephone. On Wednesday, April 30, Fisher advised Eugene Weber, Stores Manager, that Pobst had not reported for work or called in since their Monday conversation. On April 30, after telephoning at least four area hospitals, Fisher telephoned Hillsborough County Sheriff's Office Central Booking and was informed that Pobst was in jail for aggravated assault and that all inmates could make as many telephone calls as they wanted. Fisher reported this information to Weber who reported the same to his supervisor, Keith Simmons, Director of Procurement. 1/ On Thursday, May 1, Simmons telephoned Hillsborough County Jail Central to confirm Fisher's report that Pobst had access to a telephone and was told that all an inmate had to do was ask and that inmates are let out for just such purpose each day. In reliance on this information, Simmons contacted Roland Carrington, Director of Labor Management Relations, requested advice regarding the appropriate University response to Respondent's unauthorized absences, and was told it was appropriate to invoke the job abandonment rule. On Friday, May 2, Respondent Pobst was not in restraints at any time during the day, and his condition and attitude were both noted as "good" on the police log completed at 10:00 a.m. and 4:30 p.m. Respondent did not ask to use a telephone on Friday, May 2 until at least 5:00 p.m., at which time he telephoned his mother in Indiana and then waited in the dayroom for release. When Respondent was allowed to use the telephone on May 2, 1986, he instructed his mother to have his father call his employer to notify him of his whereabouts. She in turn telephoned his father, Robert Pobst, in Tampa. Robert Pobst called for his son at 8:25 p.m. and effected release on bond at 9:40 p.m. on Friday, May 2. After being released from jail at 9:40 p.m. on Friday, May 2, 1986, both Respondent Pobst and his father attempted to reach Respondent's superiors at the University of South Florida. Respondent also attempted to reach Terry Fisher at home, but did not have enough information to get in touch with the right person. On Sunday, May 4, Respondent reached Weber at home by telephone. Pobst explained the circumstances of his absence to Mr. Weber, and informed him he desired to report for work the following morning. Weber explained that Respondent's unauthorized absence was deemed as a resignation via job abandonment and that the paper work had already been processed. However, the true chronology is that upon Weber's notification Friday, May 2, that Pobst had again failed to appear or call that day, Simmons instructed his administrative assistant to prepare a letter of notification to Pobst. The letter provided that he was deemed to have resigned via abandonment. However, it was not until Monday, May 5, 1986, that Simmons actually mailed Pobst the notification of acceptance of his resignation via job abandonment by certified mail, return receipt requested. On Monday, May 5, 1986, before receiving the official notification of abandonment, Pobst reported to the University one hour before the beginning of the work day. At that time Pobst's request for reconsideration of his resignation via abandonment was declined by Simmons in reliance on information from the Sheriff's Department which contradicted Respondent's assertion that he was unable to contact the University during the whole of April 29 through May 2 inclusive. Terry Fisher had the authority to grant Pobst leave for the time he was incarcerated in the Hillsborough County Jail, and would have done so had Respondent given him a telephone call requesting such leave. On April 30, 1986, Terry Fisher, Eugene Weber, and Keith Simmons, all had knowledge that Respondent was incarcerated in the Hillsborough County Jail and had not appeared for work because he was physically unable to be present at work. Although each of Respondent's superiors knew that Respondent was incarcerated in the Hillsborough County Jail and was unable to be at work for that reason, none made any attempt to contact Respondent in order to gain direct information on his employment status or intentions. It was not demonstrated that any University supervisor had any animosity toward Pobst, and it appears that it was not Pobst's being in jail but his failure to call in and their belief that he could have called in and did not do so that influenced Pobst's superiors to invoke the resignation via abandonment rule on May 2. Mr. Weber specifically chose to invoke the rule because he had made a negative assessment of Pobst's credibility from previous absence excuses and because he relied on the telephone representations by law enforcement personnel that Pobst could have called at any time. Additionally, Weber, who was Fisher's superior, took into consideration that late April and early May was an especially busy time of year for Central Receiving because it was the end of the fiscal year and all University departments were receiving large orders in an attempt to exhaust their old budgets before claiming new ones. After May 5, Respondent made numerous efforts to regain his employment. He talked with Fisher, Weber, Simmons, and Roland Carrington in the University's Personnel Office. He requested his then-current position, OPS employment, and work he had performed prior to his transfer on April 18, 1986. Following his termination from employment Respondent made an application for Unemployment Compensation. Because the University of South Florida initially contested his eligibility, Respondent was required to appeal the initial denial of unemployment compensation. Thereafter, Respondent and the University of South Florida were parties before an appeals referee, who conducted a de novo evidentiary hearing. The issue before the appeals referee was whether Respondent "voluntarily left employment without good cause." In determining this issue, the appeals referee applied a test of "good cause" associated with "misconduct" as those words of art are defined or contemplated in Chapter 443 Florida Statutes, determined that Respondent had committed no misconduct, and awarded unemployment compensation.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that a Final Order be entered finding Respondent to have abandoned his position with the University of South Florida. DONE and RECOMMENDED this 10th day of April, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 10th day of April, 1987.
The Issue The issue is whether Respondent’s request for an administrative hearing was timely filed by virtue of the doctrine of equitable tolling.
Findings Of Fact The Division is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers’ compensation for the benefit of their employees and corporate officers. § 440.107, Fla. Stat. Respondent is a Florida limited liability company engaged in the construction business. Its offices are located at 2474 Ambassador Avenue, Spring Hill, Florida. To enforce this requirement, the Division performs random inspections of job sites and investigates complaints concerning potential violations of workers’ compensation rules. On June 6, 2018, James Acaba, a Division compliance inspector, conducted a compliance investigation at a job site in Lutz, Florida. Mr. Acaba observed two individuals working at the job site: Respondent’s owner, Mr. Smith; and Mr. Smith’s step- son. Mr. Smith claimed he had an exemption for himself. Mr. Acaba ascertained that Mr. Smith’s exemption expired on January 19, 2017. Mr. Acaba determined that: Mr. Smith’s step-son was working for $12.00 an hour; had been working for Respondent for about a week; and did not have workers compensation coverage. On June 6, 2018, a Stop-Work Order and a Request for Production of Business Records for Penalty Assessment Calculation purposes were hand-served on Mr. Smith at the job site. The Stop-Work Order contained an Order of Penalty Assessment, which explained how a penalty is calculated, but gave no specific amount pending a review of Respondent’s financial records. Mr. Smith was advised to provide the requested business records within 10 business days or by June 16, 2019. Mr. Smith requested information on how to have the Stop- Work Order removed. Mr. Acaba explained to Mr. Smith several options available to him to have the Stop-Work Order released: obtain a workers’ compensation policy; engage an employee leasing company; or terminate the step-son’s employment. On June 14, 2018, Mr. Smith provided Mr. Acaba a letter reflecting Respondent’s “reduction in (its) workforce.” On June 15, 2018, Mr. Smith secured the reinstatement of his exemption to work for Respondent. However, Mr. Smith did not provide the requested business records. On November 10, 2018, the Division served an Amended Order of Penalty Assessment (Amended Order) at the address Mr. Smith provided during the June 6, 2018, job site encounter. This Amended Order provided the total penalty amount of $35,769.16. According to Mr. Smith, his girlfriend, Samantha Nigh, signed for the Amended Order on November 10, 2018, saw the large amount of the penalty assessment, and “decided not to show” it to Mr. Smith. Ms. Nigh did not testify during the hearing. The Amended Order contained a Notice of Rights, which stated that, if Respondent wished to contest the penalty, a petition seeking a hearing had to be filed with the Division within twenty-one calendar days of the Amended Order. It also stated that the petition “must be filed with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399- 0300.” The Amended Order included the following: FAILURE TO FILE A PETITION WIHTIN TWENTY-ONE(21) CALENDAR DAYS OF RECEIPT OF THIS AGENCY ACTION CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THIS AGENCY ACTION. This meant that a petition had to be filed, and in the hands of the Agency Clerk no later than December 3, 2018. Although the actual due date was Saturday, December 1, 2018, Respondent could have filed the petition by the close of business on Monday, December 3, 2018. Florida Administrative Code Rule 18.106.103. Mr. Smith did not provide the date on which he became aware of the Amended Order. However, once he was aware of it, Mr. Smith knew the 21-day period to file a petition had expired, and admitted at hearing “it was already too late.” On December 14, 2018, 33 days after the Division served the Amended Order, and 11 days after the actual due date, the Division received Respondent’s hearing request. As a result of the late filing, the Division issued an Order to Show Cause (OTSC) on January 10, 2019. The OTSC required Respondent to show cause why the December 14, 2018, hearing request should not be dismissed as untimely. In the written response to the OTSC, Mr. Smith asserted that his brother, Edward Unger, “was only on the job site for the one day,” and Mr. Unger could “provide proof of employment elsewhere further (sic) showing he was not of our employment at the time.” Additionally, the response provided that “due to [an] emergency family situation where Byron Smith, owner, had to take a minor leave of absence to be with a close family member who had emergency open heart coronary bypass surgery. . ., the days and dates got scrambled with emotions clouding what needed to be done promptly.” The Division construed this conversation as possibly excusing the late filing and forwarded the matter to DOAH to resolve that narrow issue. During the hearing, Mr. Smith testified that his girlfriend, Ms. Nigh, prepared the OTSC response, but that his signature was on the document. Mr. Smith never clarified or corrected that Mr. Unger was his brother or step-son, and he merely reiterated the family problem and personal issues, without further detail or explanations, as his excuse. Lastly, Mr. Smith admitted that at the time Mr. Acaba observed the two working on June 6, 2018, he was breaking the rules, but “it was a huge penalty.” There is no credible evidence that Mr. Acaba gave Respondent’s owner, Mr. Smith any information that would cause him to miss the deadline for filing the petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Department of Financial Services, Division of Workers’ Compensation, enter a final order dismissing Respondent’s request for a hearing as untimely. DONE AND ENTERED this 31st day of May, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2019. COPIES FURNISHED: Mattie Birster, Esquire Department of Financial Services Office of the General Counsel 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Byron K. Smith, Jr. Smith's Interior Finishes, LLC 17829 Laura Lee Drive Shadyhills, Florida 34610 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
The Issue Whether Petitioner abandoned her position and resigned from the career service.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Petitioner, Betty Pigatt, was employed by the Division of Driver Licenses, Department of Highway Safety and Motor Vehicles (Respondent) from February 22, 1983 until January 21, 1988. Petitioner injured her lower back in an automobile accident on April 17, 1985. She was previously disabled from a work related injury and was awarded prior temporary total disability benefits. She returned to work on June 5, 1987. Her condition became progressively worse and she again ceased work on June 27, 1987. Petitioner complained of pain in her lower back going down her left leg and into her foot. She had limited ability to stand and sit, and complained of pain and limitation of motion in her neck. Petitioner was treated by Dr. Rosabal who discharged her in late July, 1987. She thereafter was treated by Dr. William Bacon, who has treated her since August 17, 1987. By letter dated September 24, 1987, Petitioner was advised by Respondent's Division Director, James H. Cox, (Cox) that her request for leave without pay was granted beginning September 2 thru November 30, 1987. She was further advised that Respondent "requested that she send a Doctor's statement to Mr. Richard Weaver, Bureau Chief of Field Operations, explaining your medical condition and an approximate date of when you will be able to return to work". (Respondent's Exhibit 1). Petitioner was aware that she was to submit a letter of explanation of her medical condition from her physician. Petitioner failed to submit such a letter. Thereafter, Petitioner requested additional leave without pay and Cox advised Petitioner as follows: Your recent letter requesting additional leave without pay cannot be given favorable consideration until you furnish Mr. Richard Weaver, Bureau Chief of Field Operations, with a statement from your Doctor explaining your medical condition and an approximate date of when you will be able to return to work. Respondent, by its Acting Regional Director, Martha A. Castro, advised Petitioner by letter dated January 21, 1988, that her request for an extension of leave without pay had been denied and she was directed to report for duty at her assigned office at 7:00 a.m., on January 13, 1988. Petitioner did not report to work as directed on either January 13, 14, or 15, 1988. Respondent advised Petitioner by letter dated January 21, 1988, of Fred O. Dickinson, III, Deputy Executive Director of the Department of Highway Safety and Motor Vehicles, that as she had not reported to work for 3 consecutive work days, in accordance with Rule 22A-7.010(2), Florida Administrative Code, she was considered to have abandoned her position and to have resigned effective immediately. Petitioner had received maximum medical improvement and was requested to return to work as of January 13, 1988. (Respondent's Exhibit 6). Petitioner was familiar with her rights and obligations as an employee and was responsible for knowing the contents of the Driver License Examiner's Manual. On page 240 of the Examiner's Manual which was in use during Petitioner's employment is the requirement that leave without pay must be authorized by the Director of the Division of Driver Licenses. Petitioner did not obtain authorized leave without pay from the Director of the Division of Driver Licenses as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Final Order be entered finding that Petitioner abandoned her position and resigned from career service, and denying Petitioner's request that she be reinstated to her position of employment. DONE and ORDERED this 17th day of October, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 18th day of October, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1163 Rulings on Petitioner's proposed factual findings: Adopted as modified, paragraph 1, R.O. Adopted as modified, paragraph 9, R.O. Adopted as modified, paragraph 4, R.O. Adopted as modified, paragraph 5, R.O. Adopted as modified, paragraph 6, R.O. Adopted, last sentence paragraph 6, R.O. Adopted as modified, paragraph 7, R.O. Adopted as modified, paragraph 8, R.O. First sentence adopted and the remainder rejected as irrelevant. COPIES FURNISHED: Suzanne G. Printy, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, A432 Tallahassee, Florida 32399-0504 Betty Pigatt 1262 Northwest 172nd Terrace Miami, Florida 33169 Michael Alderman, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0555 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether Respondent may levy upon property belonging to Petitioner (specially, funds in Petitioner's account, number 300126719, at Admiralty Bank), as proposed in Respondent's March 30, 2000, Notice of Intent to Levy?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner operates a Chevron station at 4109 Northlake Boulevard in Palm Beach Gardens, Florida, at which it engages in the business of selling motor fuels at posted retail prices. Petitioner maintains a business account at Admiralty Bank. The number of its account is . Petitioner's Local Option Motor Fuel License number is 60-023068. Petitioner was delinquent in remitting to the Department "local option gas tax" payments for the period from July 1, 1995, through June 30, 1996. The Department provided Petitioner notice of Petitioner's failure to make these payments. The Department filed with the Clerk of the Circuit Court in Palm Beach County a Tax Warrant "for collection of delinquent local option gas tax[es]," in the amount of $106,904.62, plus penalties (in the amount of $59,556.47), interest (in the amount of $12,026.25), and the amount of the "filing fee" ($12.00), for a "grand total" of $178,499.34. Rafael Fanjul is the president and sole owner of Petitioner. On May 2, 1997, Mr. Fanjul, on behalf of Petitioner, entered into a Stipulation Agreement with the Department, which provided as follows: THE FLORIDA DEPARTMENT OF REVENUE AND ELF SERVICES, D/B/A PALM BEACH CHEVRON S/S THE TAXPAYER, TAX IDENTIFICATION NO. 60- 123068, HEREBY AGREE THAT THE $178,024.29 TAX LIABILITY IS DUE THE STATE OF FLORIDA. IT IS FURTHER AGREED THE SUM OF TAX, PENALTY, AND INTEREST REFERENCED ON THE WARRANT OR WARRANTS DATED 02/20/97 IS SUBJECT TO THE FOLLOWING STIPULATIONS: The taxpayer will retire the tax, penalty, and interest shown on the Tax Warrant or Warrants whose dates or dates are shown above. The taxpayer waives any and all rights to institute any further judicial or administrative proceedings under S.72.011, F.S., with respect to this liability and; The taxpayer further agrees to meet each payment term which is detailed on the Amortization Schedule and Payment Coupons provided by the Department of Revenue. IN THE EVENT THE TAXPAYER FAILS TO MEET THE PAYMENT TERMS DETAILED ON THE ENCLOSED AMORTIZATION SCHEDULE AND PAYMENT COUPONS OR FAILS TO TIMELY REMIT ALL TAXES WHICH BECOME DUE AND PAYABLE SUBSEQUENT TO THE DATE OF THIS AGREEMENT, ANY UNPAID BALANCE OF TAX, PENALTY, AND/OR INTEREST SCHEDULED PURSUANT TO THIS AGREEMENT SHALL BECOME IMMEDIATELY DUE AND PAYABLE. Mr. Fanjul had the authority to bind Petitioner to the terms set forth in the Stipulation Agreement. There has been no showing that, in so doing, he acted involuntarily or under coercion or duress. Petitioner made some, but not all of the payments, set forth on the Amortization Schedule incorporated by reference in the Stipulation Agreement. 4/ On May 1, 1998, Petitioner entered into a second Stipulation Agreement with the Department, which provided as follows: THE FLORIDA DEPARTMENT OF REVENUE AND ELF SERVICES, D/B/A PALM BEACH CHEVRON S/S 4806, THE TAXPAYER, TAX IDENTIFICATION NO. 60- 123068, HEREBY AGREE THAT THE $142,701.38 TAX LIABILITY IS DUE THE STATE OF FLORIDA. IT IS FURTHER AGREED THE SUM OF TAX, PENALTY, AND INTEREST REFERENCED ON THE WARRANT OR WARRANTS DATED 02/20/97 IS SUBJECT TO THE FOLLOWING STIPULATIONS: The taxpayer will retire the tax, penalty, and interest shown on the Tax Warrant or Warrants whose dates or dates are shown above. The taxpayer waives any and all rights to institute any further judicial or administrative proceedings under S.72.011, F.S., with respect to this liability and; The taxpayer further agrees to meet each payment term which is detailed on the Amortization Schedule and Payment Coupons provided by the Department of Revenue. IN THE EVENT THE TAXPAYER FAILS TO MEET THE PAYMENT TERMS DETAILED ON THE ENCLOSED AMORTIZATION SCHEDULE AND PAYMENT COUPONS OR FAILS TO TIMELY REMIT ALL TAXES WHICH BECOME DUE AND PAYABLE SUBSEQUENT TO THE DATE OF THIS AGREEMENT, ANY UNPAID BALANCE OF TAX, PENALTY, AND/OR INTEREST SCHEDULED PURSUANT TO THIS AGREEMENT SHALL BECOME IMMEDIATELY DUE AND PAYABLE. Mr. Fanjul had the authority to bind Petitioner to the terms set forth in the second Stipulation Agreement. There has been no showing that, in so doing, he acted involuntarily or under coercion or duress. Petitioner made some, but not all of the payments, set forth on the Amortization Schedule incorporated by reference in the second Stipulation Agreement. 5/ On August 12, 1999, Petitioner entered into a third Stipulation Agreement with the Department, which provided as follows: THE FLORIDA DEPARTMENT OF REVENUE AND ELF SERVICES, D/B/A PALM BEACH CHEVRON S/S 4806, THE TAXPAYER, TAX IDENTIFICATION NO. 60- 123068, HEREBY AGREE THAT THE $88,375.04 TAX LIABILITY IS DUE THE STATE OF FLORIDA. IT IS FURTHER AGREED THE SUM OF TAX, PENALTY, AND INTEREST REFERENCED ON THE WARRANT OR WARRANTS DATED 02/20/97 IS SUBJECT TO THE FOLLOWING STIPULATIONS: The taxpayer will retire the tax, penalty, and interest shown on the Tax Warrant or Warrants whose dates or dates are shown above. The taxpayer waives any and all rights to institute any further judicial or administrative proceedings under S.72.011, F.S., with respect to this liability and; The taxpayer further agrees to meet each payment term which is detailed on the Amortization Schedule and Payment Coupons provided by the Department of Revenue. IN THE EVENT THE TAXPAYER FAILS TO MEET THE PAYMENT TERMS DETAILED ON THE ENCLOSED AMORTIZATION SCHEDULE AND PAYMENT COUPONS OR FAILS TO TIMELY REMIT ALL TAXES WHICH BECOME DUE AND PAYABLE SUBSEQUENT TO THE DATE OF THIS AGREEMENT, ANY UNPAID BALANCE OF TAX, PENALTY, AND/OR INTEREST SCHEDULED PURSUANT TO THIS AGREEMENT SHALL BECOME IMMEDIATELY DUE AND PAYABLE. Mr. Fanjul had the authority to bind Petitioner to the terms set forth in the third Stipulation Agreement. There has been no showing that, in so doing, he acted involuntarily or under coercion or duress. The Amortization Schedule incorporated by reference in the third Stipulation Agreement required Petitioner to make 47 weekly payments of $1,000.00 each from August 12, 1999, to June 29, 2000, and to make a final payment of $28,994.57 on July 6, 2000. As of January 12, 2000, Petitioner was five payments behind. Accordingly, on that date, the Department sent a Notice of Delinquent Tax to Admiralty Bank, which read as follows: RE: ELF SERVICES INC. DBA: PALM BEACH GARDENS CHEVRON STA 48206 FEI: 65-0055086 ACCT: ST#: To Whom It May Concern: You are being notified, under the authority contained is Subsection 212.10(3), Florida Statutes, that the referenced dealer is delinquent in the payment of gas tax liabilities in the amount of $75,581.47 to the State of Florida. You may not transfer or dispose of any credits, debts, or other personal property owed to the dealer, that are to become under your control during the effective period of this notice. Any assets in your possession exceeding the dollar amount shown above may be released in the ordinary course of business. This notice shall remain in effect until the Department consents to a transfer or disposition or until sixty (60) days elapse after receipt of this notice, whichever period expires the earliest. Please furnish a list of all credits, debts, or other property owed to the dealer in your possession and the value of these assets to the Department. Chapter 212.10(3), F.S. requires this list within five (5) days. If you fail to comply with this notice, you may become liable to the State of Florida to the extent of the value of the property or amount of debts or credits disposed of or transferred. Thank you for your cooperation. If you have any questions, please contact the undersigned at the telephone number below. On or about January 18, 2000, in response to the foregoing notice, Admiralty Bank advised the Department in writing that "the balance being held" in Petitioner's account at the bank was $2,223.53. On February 10, 2000, the Department sent Admiralty Bank a Notice of Freeze, which read as follows: RE: Elf Services Inc. DBA Palm Beach Gardens Chevron FEI: 65-0055086 ACCT: ST#: Dear Custodian: You are hereby notified that pursuant to Section 213.67, Florida Statutes, the person identified above has a delinquent liability for tax, penalty, and interest of $75,581.47, which is due the State of Florida. Therefore, as of the date you receive this Notice you may not transfer, dispose, or return any credits, debts, or other personal property owned/controlled by, or owed to, this taxpayer which are in your possession or control. This Notice remains in effect until the Department of Revenue consents to a transfer, disposition, or return, or until 60 consecutive calendar days elapse from the date of receipt of this Notice of Freeze, whichever occurs first. Further, Section 213.67(2), F.S., and Rule 12-21, Florida Administrative Code, require you to advise the Department of Revenue, within 5 days of your receipt of this Notice, of any credits, debts, or other personal property owned by, or owed to, this taxpayer which are in your possession or control. You must furnish this information to the office and address listed below. Your failure to comply with this Notice of Freeze may make you liable for the amount of tax owed, up to the amount of the value of the credits, debts or personal property transferred. Thank you for your cooperation. If you have any questions please contact the undersigned at the telephone number listed below. On March 22, 2000, the Department sent to Petitioner a Notice of Intent to Levy upon Petitioner's "Bank Account # , in the amount of $2,320.07, . . . in the possession or control of Admiralty Bank" "for nonpayment of taxes, penalty and interest in the sum of $75,581.47." After receiving information from Admiralty Bank that Petitioner actually had $7,293.36 in its account at the bank, the Department, on March 30, 2000, sent Petitioner a second Notice of Intent to Levy, which was identical in all respects to the March 22, 2000, Notice of Intent to Levy except that it reflected that Petitioner's account at Admiralty Bank contained $7,293.36, instead of $2,320.07. Petitioner's account at Admiralty Bank does not contain any monies paid by a third party to Petitioner as salary or wages. The amount of the Petitioner's current outstanding delinquent "tax liability" is $75,581.47.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order upholding its March 30, 2000, Notice of Intent to Levy and proceed with the garnishment of the funds in Petitioner's account at Admiralty Bank. DONE AND ENTERED this 25th day of October, 2000, in Tallahassee, Florida. STUART M. LERNER 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 25th day of October, 2000.
The Issue Whether the protest of Barton Protective Services, LLC (Barton) challenging the Department of Transportation's (Department's) announced intention to commence negotiations with Faneuil, Inc. (Faneuil), "the firm ranked number one by the Selection Committee," for the contract advertised in ITN-DOT- 05/06-8007-EH "to provide Revenue Collection Services by staffing Department operated toll facilities" on the Florida Turnpike, should be sustained.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Florida's Turnpike Enterprise and its Toll Operations The Florida Turnpike System consists of toll roads in the southern and central parts of the state. Florida's Turnpike Enterprise (Turnpike Enterprise), a unit of the Department, is responsible for the management and operation of the Florida Turnpike System. There is, organizationally, within the Turnpike Enterprise, a Division of Toll Operations, which is headed by a Director of Toll Operations. The current Director of Toll Operations is Evelio Suarez. Mr. Suarez's immediate predecessor as Director of Toll Operations was Deborah Stemle, who held the position from December 1997, to November 13, 2003. Three "distinct units" make up the Division of Toll Operations, each headed by a Deputy Director, who reports to the Director of Toll Operations: SunPass Operations; Toll Systems Support and Maintenance; and Revenue Collection Services (RCS). The SunPass Operations unit is responsible for the Turnpike Enterprise's electronic toll collection operations. Faneuil currently has two contracts with the Department involving SunPass Operations: a "SunPass Secondary Call Center" contract, which has been in effect since April 2005; and a "SunPass Contact Center and Support Services" contract that has been in effect since April 1, 2006. The Toll Systems Support and Maintenance unit is responsible for acquiring and maintaining the infrastructure and equipment needed for toll operations. RCS is responsible for the "accurate collection and deposit of cash toll revenues and to provide efficient and friendly service to the motoring public in manned and automatic coin lanes." Milissa Burger is now, and has been since July 2002, the RCS Deputy Director. Ms. Burger's immediate predecessor as RCS Deputy Director was Charles Gilliard. Preceding Mr. Gilliard in the position was Ms. Stemle. Ms. Stemle held the position from September 1986, to December 1997.4 Under Ms. Burger's direct supervision are six regional toll managers, who oversee the overall operation of the toll facilities in one of the six following "toll regions": Orlando region; Tampa region; Palm Beach region; North Broward region; South Broward region; and Miami region. There are approximately 10 to 15 toll facilities located in each of these "toll regions." Approximately 50 of the toll facilities are "open[] on [a] 24-hour, seven-days-a-week, 365-days-a-year basis." Barbara Brantley (formerly Trien) is now, and has been since November 2002, the Orlando Regional Toll Manager. Ms. Brantley's immediate predecessor as Orlando Regional Toll Manager was Ms. Burger, who held the position from June 1991, until her promotion to RCS Deputy Director in July 2002. Frankie Cook is now, and has been for the past year and a half, the Tampa Regional Toll Manager. Steve Spitzer is now, and has been since December 1994, the Palm Beach Regional Toll Manager. Mr. Spitzer has been employed by the Department since 1990. Before becoming the Palm Beach Regional Toll Manager, he was an Operations Management Consultant with the Department. Reno Abbadini is now, and has been since December 1997, the North Broward Regional Toll Manager. Mr. Abbadini has been employed by the Department since February 1995. Before becoming the North Broward Regional Toll Manager, he was an Operations Management Consultant with the Department. Karen Greenawalt is now, and has been since October 1996, the South Broward Regional Toll Manager. Ms. Greenawalt has been employed by the Department for 32 years. John Sneed is now, and has been since August 1994, the Miami Regional Toll Manager. Before becoming the Miami Regional Toll Manager, Mr. Sneed was an Operations Management Consultant II with the Department. When she was with the Department, Ms. Stemle exercised supervisory authority over Ms. Burger, Ms. Brantley, Mr. Spitzer, Mr. Abbadini, Ms. Greenawalt, and Mr. Sneed.5 In carrying out her supervisory responsibilities, she evaluated them and authorized or recommended pay increases and/or promotions for them that she believed they "deserve[d]" and had "earned."6 Her relationship with them was "purely professional." They were not personal friends of hers with whom she socialized (nor are they now).7 Each toll facility has a toll facility manager who exercises day-to-day operational control over the activities at the facility, including supervision of regional office support staff. Toll facility managers are under the direct supervision of the regional toll manager of the region in which their facility is located. The Director of Toll Operations, RCS Deputy Director, regional toll managers, toll facility mangers, and regional office support staff are all Department employees. Privatization of Toll Facility Staffing Working at each toll facility under the direction and control of the toll facility manager are toll collectors, toll collector supervisors, toll facility laborers, and toll collection couriers. Toll collectors are "responsible for accurately classifying vehicles, collecting tolls and providing change to motorists traveling through a toll lane." Toll collector supervisors "coordinate [the] work shift[s] of toll collectors." Toll facility laborers "maintain the cleanliness of a toll facility by performing routine maintenance and custodial duties." Toll collection couriers "provide pick up and delivery service between toll facilities and [the] regional office." Until 1994, toll collectors, toll collector supervisors, toll facility laborers, and toll collection couriers were employed by the Department. Since 1994, these positions have been outsourced, with Barton providing the Department with the necessary staffing services pursuant to written contracts (one for each region). Barton representatives have regular contact with RCS personnel, including the regional toll managers (who serve as the Department's contract managers under the contracts), to discuss operational issues relating to the staffing services it provides the Department. Barton was selected to provide these services following competitive procurement solicitations in 1994, 1996, and 2000. It currently provides the Department with approximately 2,000 contract employees. The contracts Barton entered into with the Department following the 2000 solicitation each had an expiration date of November 30, 2005, which "was extended initially for a six-month period." The Department, in or around 2005, decided to "rebid" the contracts. It "wanted to provide a better overall package to the employees" than was required under its contracts with Barton in order to help limit turnover and the number of vacant positions. ITN-DOT-05/06-8006-EH To this end, in or around the first week of November 2005, the Department issued ITN-DOT-05/06-8006-EH (ITN 006), "soliciting written replies from qualified vendors interested in participating in competitive negotiations to establish [two separate] contract[]s to provide Personnel Services: Toll Collections": one providing for staffing services for the Orlando, Tampa, and Palm Beach regions; and the other providing for staffing services for the North Broward, South Broward, and Miami regions. Vendors were instructed that they could "submit proposals for both or one of the contracts to be awarded" and that they were to "submit separate proposals for each of the contracts." Ms. Burger was the "primary drafter" of ITN 006. Ms. Brantley assisted her in "writing parts of the Scope of Services." Also assisting Ms. Burger were Sheree Merting and Elizabeth Hill of the Turnpike Enterprise's "contracts office," which is headed by Woodrow Lawson, who is a contractual services administrator with the Department. ITN 006 provided for a "mandatory pre-proposal meeting," which vendors had to attend to avoid being "immediately disqualif[ied] from further consideration." It also required that vendors have experience "for at least the past five (5) years, in the management and operation of toll collections staffing." Mr. Lawson did not have any direct involvement in the drafting or issuance of ITN 006. When he first reviewed it after its issuance (in order to respond to questions from vendors that had been forwarded to him by his staff), he had a "number of concerns with the document," including the requirement that vendors have previous "toll collections staffing" experience. In Mr. Lawson's view, such a requirement was unnecessary and anti-competitive because the Department, not the vendor, was to be providing training to the contract employees. Given the extensive changes that he believed needed to be made to ITN 006, Mr. Lawson decided that the Department "needed to pull back this document and start all over." He spoke about the matter with Mr. Suarez, who "concurred and he pulled [it] back." Mr. Lawson, with the assistance of a member of his staff, Frank Elmore, and Ms. Burger, made numerous changes to ITN 006. The result of their efforts was a new invitation to negotiate, ITN-DOT-05/06-8007-EH (ITN 007). ITN-DOT-05/06-8007-EH The Department issued ITN 007 in mid to late January 2006, establishing a March 7, 2006, deadline for the submission of sealed replies. Pre-submission addenda to ITN 007 were issued on February 23, 2006 (Addendum No. 1) and February 28, 2006 (Addendum No. 2). The documents comprising ITN 007 included: the Advertisement; Special Conditions; General Contract Conditions (PUR 1000); General Instructions to Respondents (PUR 1001); Standard Written Agreement; Scope of Services (Exhibit "A"); Method of Compensation (Exhibit "B"); Price Proposal (Exhibit "C"); various "forms" and "attachments"; and the aforementioned addenda. Advertisement The Advertisement identified the "Scope of Services" the Department was soliciting as follows: The State of Florida, Department of Transportation (hereinafter referred to as the "Department") is soliciting written replies from qualified Proposers interested in participating in competitive negotiations to establish a term contract to provide Revenue Collection Services by staffing Department operated toll facilities with Proposer's employees. It is anticipated that agreement will have an initial contract term of sixty (60) months with a renewal option. The Department intends to award a contract [to] the responsive and responsible Vendor whose proposal is determined by a Selection Committee to provide the best value to the Department. One contract will be awarded which will cover the following regions in the State of Florida as further described in the Invitation to Negotiate (ITN): Orlando Region Tampa Region Palm Beach Region North Broward Region South Broward Region Miami Region Special Conditions Special Condition 5 addressed the "Scope of Services." It provided as follows: Details of desired commodity/services, information and items to be furnished by the Vendor are described in Exhibit "A," Scope of Services, attached hereto and made a part hereof. Special Condition 6 required that "any technical questions arising from this Invitation to Negotiate . . . be forwarded in writing" to Mr. Lawson's subordinate, "procurement officer" Ms. Hill. In addition, it advised that "[t]he Department's written response to written inquiries submitted timely by interested vendors [would] be posted on the Florida Vendor Bid System." In Special Condition 7, the Department "reserve[d] the right to reject any and all replies received pursuant to this Invitation to Negotiate (ITN), if [it] determine[d] such action [to be] in the best interest of the Department," and it further "reserve[d] the right to waive minor irregularities in submitted replies." The Department provided the following description of the "Invitation to Negotiate Process" in Special Condition 10: The Steps for this Invitation to Negotiate process are outlined below. Dates and times associated with these steps are shown in Section 11, Schedule of Events, of these Special Conditions. Vendors['] replies should be prepared to provide a straightforward, concise description of the Vendor's ability to meet the requirements and to allow the Department to properly evaluate the Vendor's reply. The Vendor's reply shall be thorough and complete since negotiations with respect to items of scope and items of price will be at the sole discretion of the Department. Once Vendors have been ranked, the Department will proceed with negotiation in accordance with the negotiation process described below. Vendors should be cognizant of the fact during negotiations, the Department reserves the right to finalize negotiations at any time in the negotiation process when the Department determines that such election would be in the best interest of the State. Step 1): Scope Pre-Proposal Meeting will be conducted at the Turnpike Enterprise Headquarters . . . . Attendance by Proposers is optional. Step 2) Interested Vendors must submit a sealed reply consisting of the following to the "Procurement Agent" identified on the cover page: Qualifications Questionnaire Form - with additional sheets as needed to address and respond to all questions completely (see Special Condition 14.1). Dun and Bradstreet Supplier Evaluation Report Technical Proposal Price Proposal Step 3) The Evaluation and Selection Committee, composed of at least three members, will evaluate and score the replies individually. The individual scores of the committee members will be averaged by Turnpike's Contractual Service Staff to arrive at an overall score. Vendors will be ranked in the order of their overall score with the highest scored firm ranked number one, the second highest scored firm ranked number two and so forth.[8] Step 4) Posting of Ranking for 72 hours on the Vendor Bid System. Step 5) Once the posting period has ended the Department may undertake negotiations with the first-ranked Vendor until an acceptable contract is agreed upon, or it is determined an acceptable agreement cannot be reached with such Vendor. If negotiations fail with the first-ranked Vendor, negotiations may begin with the second- ranked Vendor, and so on until there is an agreement on an acceptable contract. The Department reserves the option to resume negotiations that were previously suspended. The Department also reserves the right to forego any negotiations and execute an agreement based upon a Vendor's written proposal. The Department will initiate all negotiations. Step 6) The intended award will be posted in accordance with law and rule. Step 7) The Department will contract with the Vendor with whom an acceptable agreement was reached. Special Condition 12 provided the following information regarding the protest procedures that were available to "adversely affected" vendors: Any vendor who is adversely affected by the Department's recommended award or intended decision must file the following with the Department of Transportation . . . .: A written notice of protest within seventy-two (72) hours after posting of the intended decision, and A formal written protest and protest bond in compliance with Section 120.57(3) Florida Statutes, within ten (10) days of the date on which the written notice of protest is filed. At the time of filing the written protest a bond (a cashier's check or money order may be accepted) payable to the Department must also be submitted in an amount equal to one percent of the estimated contract amount based on the contract price submitted by the protestor. Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. If the notice advises of the bond requirement but a bond or statutorily authorized alternate is not posted when required, the agency shall summarily dismiss the petition. In Special Condition 13, vendors were given notice of the optional "pre-proposal meeting," the purpose of which would be "to provide an open forum for the Department to review the Scope of Services, ITN requirements, contractual requirements, etc." This special condition further provided as follows: At least three (3) days before the Scope Meeting, Vendors should Mail, e-mail, or fax known technical questions to the person shown on the Special Conditions page, questions and issues which they want addressed during the pre-proposal meeting. The Vendor should pay particular attention to identifying any improvement, corrective measures, or other changes that could be incorporated in the Scope of Services that had not existed or may have been overlooked or require clarification. If required, a revised Scope of Services will be issued. Vendors are certainly welcome to ask questions at the pre-proposal meeting other than those previously forwarded to the Department, but the Department reserves the right to delay a response when further consideration is needed. Special Condition 14 described what vendors needed to include in their replies to ITN 007. It read, in pertinent part, as follows: The Sealed Reply shall be in the following format and provide the requested information. Qualifications Vendors must complete and submit Form 1 "Qualifications Questionnaire" and provide the Dun & Bradstreet Report requested in the Qualification[s] Questionnaire, to show that they have the necessary qualifications and experience in providing Revenue Collection Services - Toll Operations, as specified in the Scope of Services. Written Technical Proposal Executive Summary. The Vendor shall provide an Executive Summary to be written in non-technical language to summarize the Vendor's overall capabilities and approaches for accomplishing the services specified herein. The Vendor is encouraged to limit the summary to no more than three (3) pages. Administration and Management Plan. The Vendor shall provide an administration and management plan that describes the proposed organization's administration, management, and management personnel to be assigned to the project. This will include the percent of time that each individual assigned to the program will devote to the project, and the effort that top management will commit towards support of the program. The Vendor shall provide resumes of the management personnel assigned to the project as an appendix to the technical proposal. Staffing Plan. The Vendor shall provide an in depth staffing plan for (1) each of the Vendor's six regional offices and the duties and responsibilities for each assigned position including the resumes of known individuals with education and professional experience provided in the resumes[9] and (2) the method planned to be used to staff and schedule the Department's needs at each toll facility taking into consideration both full time and part time positions. Recruitment, Hiring and Employment Matters. The Vendor shall provide an in depth plan on proposed recruitment, screening, hiring, and employee evaluations. Employee Pay, Benefits, Recognition and Retention Programs. The Vendor shall provide an in depth plan for contract employee pay adjustments, benefits, performance recognition whether positive or negative, maintaining communications to minimize turnovers and increase general employee moral[e], and any additional methods for staff retention. When presenting the plan, include as part of your retention plan, your method for calculating and reporting turnover; include as part of performance recognition, your incentive program; include as part of communications your program for communicating information to employees; include as part of the benefits plan the following: (1) the employee's out of pocket expenses expressed as a percentage of total cost for group[] medical coverage (2) vacation and sick leave policy including the amounts of hours earned annually and retention policy of such hours (3) how employees will be compensated for holiday pay and (4) any other planned benefits with associated employee cost; include as part of pay adjustments, your plan for merit increases, cost of living increases and other compensation plans such as bonuses. Implementation Schedule and Plan. The Vendor shall provide an in depth plan and schedule for the implementation of the project, outlining all task[s] necessary to achieve a fully staffed and trained force as well as transitioning retained contract employees. Forms. Forms 2, 3 and 4 are to be completed and included in the Forms Section of the Technical Proposal. Be certain to fill in all blanks on the forms supplied; do not leave any blanks on the forms. Be sure to sign the form. Price Proposal The Proposer shall prepare its price proposal in accordance with the instructions set forth in 14.3.2 below and within the project budget limitations set forth in below. 14.3.1 Project Budget The Proposers Price Proposal shall not exceed the Department's budget. Funding for this Agreement is provided to the Department by the Florida Legislature on a Department fiscal year basis. The Department's fiscal year begins July 1 of each year and ends June 30 of each succeeding year. The Department anticipates that the following funds will be appropriated by the Florida Legislature for the fiscal year noted. The Proposer shall not exceed the Department's anticipated funding for any given fiscal year when preparing its price proposal. Before submitting a Price Proposal, compare your cost for a given time period in Schedule 2 of your price proposal to the corresponding time period shown below and do not exceed the Department's anticipated legislative funding. Fiscal Period Department Funding 6/1/06-6/30/06 $7,000,000 7/1/06-6/30/07 $55,500,000 7/1/07-6/30/08 $57,165,000 7/1/08-6/30/09 $58,880,000 7/1/09-6/30/10 $60,647,000 7/1/10-5/31/011 $57,261,000 14.3.2 Preparation The Proposer is required to present its Price Proposal on the forms set forth in Exhibit "C" . . . . * * * How replies would be evaluated was described in Special Condition 15, which read as follows: Evaluation Process The Department will evaluate the Vendor's Proposal utilizing the following criteria and point system: Qualification[s] Questionnaire(10) 10 Technical Proposal(80) Administrative and Management Plan 5 Staffing Plan 20 Recruitment, Hiring, and Employment Matters 10 Employee Pay, Benefits, Recognition and Retention Programs 35 Implementation Schedule and Plan 10 Price Proposal(10) 10 Total 100 Total Price Proposal (Evaluation) Price Proposal evaluation is the process of examining a Vendor's price. The Proposer's Price will be evaluated using the present value methodology as required by Section 287.0572, Florida Statutes. A present value discount rate of 4.27% shall be used in the evaluation. The price analysis will be conducted by a comparison of the present value of each Vendor's proposal. The criteria for price evaluation shall be based upon the following formula: (Lowest Present Value Price/Vendor's Present Value Price) x Maximum Points (10) = Vendor's Total Price Points The lowest present value proposal price will be divided by the Vendor's present value price. The results will be multiplied by the maximum price proposal points (10) to arrive at the total price points for the Vendor. In Special Condition 18, the Department "reserve[d] the right to perform or have performed an on-site review of the vendor's facilities and qualifications" following the "sealed reply due date and prior to contract execution" in order to "verify data and representations submitted by the vendor"; "determine whether the vendor has an adequate, qualified, and experienced staff, and can provide overall management facilities"; and "verify whether the vendor has financial capability adequate to meet the contract requirements." The Department added: Should the Department determine that the reply has material misrepresentations or that the size or nature of the vendor's facilities or the number of experienced personnel (including technical staff) are not adequate to ensure satisfactory contract performance, the Department has the right to reject the reply. Special Condition 23 stated that the Department would "execute a written agreement with the awarded Vendor, which w[ould] include the final negotiated terms, conditions, specifications/scope of services, and prices." Special Condition 25 listed the forms that were part of the ITN. It provided as follows: FORMS QUALIFICATIONS QUESTIONNAIRE Package (Form 1) Drug Free Work Place Certification (Form 2) MBE/DBE Participation Statement (Form 3) Certification of Acceptable Driving Record (Form 4) OPTIONAL Corporate Resolution (Form 5) General Contract Conditions The General Contract Conditions included the following provisions, among others: * * * 19. Lobbying and Integrity The Contractor shall not, in connection with this or any other agreement with the State, directly or indirectly (1) offer, confer, or agree to confer any pecuniary benefit on anyone as consideration for any State officer or employee's decision, opinion, recommendation, vote, other exercise of discretion, or violation of a known legal duty, or (2) offer, give, or agree to give to anyone any gratuity for the benefit of, or at the direction or request of any State officer or employee. . . . * * * 33. Contractor Employees, Subcontractors, and Other Agents. The Customer and the State shall take all actions necessary to ensure that Contractor's employees, subcontractors and other agents are not employees of the State of Florida. . . . * * * 47. Special Conditions. Pursuant to 60A- 1.002(7), F.A.C., a Customer may attach additional contractual and technical terms and conditions. These "special conditions" shall take precedence over this form PUR 1000 unless the conflicting term in this form is statutorily required, in which case the term contained in the form shall take precedence. General Instructions to Respondents The General Instructions to Respondents included the following provisions, among others: * * * Terms and Conditions. All responses are subject to the terms of the following sections of this solicitation, which in case of conflict, shall have the order of precedence listed: Technical Specifications, Special Conditions, Instructions to Respondents (PUR 1001), General Conditions (PUR 1000), and Introductory Materials. The Buyer objects to and shall not consider any additional terms or conditions submitted by a respondent, including any appearing in documents attached as part of respondent's response. In submitting its response, a respondent agrees that any additional terms or conditions, whether submitted intentionally or inadvertently, shall have no force or effect. Failure to comply with terms and conditions, including those specifying information that must be submitted with a response, shall be grounds for rejecting a response. Questions. Respondents shall address all questions regarding this solicitation to the Procurement Officer. Questions must be submitted via the Q & A Board within MyFloridaMarketPlace and must be RECEIVED NO LATER THAN the time and date reflected on the Timeline. Questions shall be answered in accordance with the Timeline. All questions submitted shall be published and answered in a manner that all respondents will be able to view. Respondents shall not contact any other employee of the Buyer or the State for information with respect to this solicitation. Each respondent is responsible for monitoring the MyFloridaMarketPlace site for new or changing information. The Buyer shall not be bound by any verbal information or by any written information that is not contained within the solicitation documents or formally noticed and issued by the Buyer's contracting personnel. Questions to the Procurement Officer or to any Buyer personnel shall not constitute formal protest of the specifications of the solicitation, a process addressed in paragraph 19 of these Instructions. Conflict of Interest. This solicitation is subject to chapter 112 of the Florida Statutes. Respondents shall disclose with their response the name of any officer, director, employee or other agent who is also an employee of the State. Respondents shall also disclose the name of any State employee who owns, directly or indirectly, an interest of five percent (5%) or more in the respondent or its affiliates. * * * 10. Performance Qualifications. The Buyer reserves the right to investigate or inspect at any time whether the . . . qualifications, or facilities offered by respondent meet the Contract requirements. . . . . Respondent must be prepared, if requested by the Buyer, to present evidence of experience, ability, and financial standing . . . . If the Buyer determines that the conditions of the solicitation documents are not complied with, . . . or that the qualifications, financial standing, or facilities are not satisfactory, . . . the Buyer may reject the response . . . . * * * Clarifications/Revisions. Before award, the Buyer reserves the right to seek clarifications or request any information deemed necessary for proper evaluation of submissions from all respondents deemed eligible for Contract award. Failure to provide requested information may result in rejection of the response. Minor Irregularities/Right to Reject. The Buyer reserves the right to accept or reject any and all bids, or separable portions thereof, and to waive any minor irregularity, technicality, or omission if the Buyer determines that doing so will serve the State's best interests. The Buyer may reject any response not submitted in the manner specified by the solicitation documents. * * * 19. Protests. Any protest concerning this solicitation shall be made in accordance with section 120.57(3) and 287.042(2) of the Florida Statutes, and chapter 28-110 of the Florida Administrative Code. Questions to the Procurement Officer shall not constitute formal notice of a protest. It is the Buyer's intent to ensure that specifications are written to obtain the best value for the State and the specifications are written to ensure competitiveness, fairness, necessity and reasonableness in the solicitation process. Section 120.57(3)(b), F.S. and Section 28- 110.003, Fla. Admin. Code require that a notice of protest of the solicitation documents shall be made seventy-two hours after the posting of the solicitation. Section 120.57(3)(a), F.S. requires the following statement to be included in the solicitation: "Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes." Section 28-110.005, Fla. Admin. Code requires the following statement to be included in the solicitation: "Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes." Scope of Services Section 2.0 of the Scope of Services contained "Definition[s] of Terms," including the following: Department's Project/Contract Manager: The individual employee of the Department responsible for the management of the Contract. Department Deputy Project/Contract Manager: These employees of the Department are responsible for scheduling (establish[ing] staff requirements) and monitoring of work being performed, inspection and acceptance of services provided and approval for payment of services requested herein. Department's Deputy Director [of] Toll Operations - RCS: This individual provides operational oversight and direction for the six (6) toll regions. Serves as the Department's Project/Contract Manager, at the statewide level of this contract. 2.7. Department's Regional Toll Manager: The individual employee responsible for the management oversight of an entire region, including the management of the toll collection staffing contract, supervision of toll facility managers and regional office support staff[;] provides direction and guidance for the operation of the toll facilities, budget control, monitor[s] cash collection, and monitor[s] banking and auditing reports for cash handling errors. Serves as the Department's Deputy Project/Contract Manager at the Region level of this Contract. 2.8 Department's Toll Facility Manager: This individual is responsible for the total operation of a toll facility. Responsibilities include supervision of Department and contract employees, maintaining a well trained and motivated work force, providing exceptional customer service, contract management and meeting the financial goals of the Department. 2.9. Contract Employee: The individual employed by the contractor performing the duties and responsibilities of a toll collector, toll collector supervisor, toll facility laborer or courier. Retained Contract Employee[]: An employee of the current Vendor that accepts employment with the new toll collection services Vendor. Contractor's Program Director: The individual employee of the Contractor responsible for management of Contract, scheduling (staff Department requirements), payroll, monitoring of work being performed, inspection of services provided and the submission of payment documents for all services requested herein. The Contractor's Program Director is responsible for all communication with the Department and the Department's Contract Manager. Section 3.0 of the Scope of Services contained the following "General Description" of the services sought by the Department through ITN 007: The Department is currently under contract for the above-mentioned services; however, the contract will expire in the winter of 2006. It is the intent of the Department to retain all current contracted full-time and part-time positions under this contract (see Section 23.1, First Right of Refusal). This ITN is directed to vendors who can meet the Department's requirements described herein. This indefinite quantity contract retains the Vendor to provide toll collection service employees for full-time and part-time positions at the toll facilities located within the six toll regions. The number of positions may increase or decrease during the term of the contract, depending on need (see Section 9.1.5) and availability of budget. The Vendor shall provide toll facility personnel, including toll collector, toll collector supervisor, laborer, and courier positions. The Vendor shall provide and maintain, at minimum, one local office within the specified geographic boundaries in each of the toll regions, approved by the Department, with space useable for interviewing, scheduling, orientation and training, and maintenance of employee files and uniform inventory. Furnishing each office with appropriate furniture, equipment and office supplies as well as telephone services, utilities, janitorial and other needed services or items are the responsibility of the Vendor. The Department will provide at the toll facilities all toll facility management staff, technical support individuals, procedures, furniture, computers, office supplies, uniforms, and access to the toll collection system for the contractor's employees assigned to the toll facilities. Section 4.0 of the Scope of Services advised that "[o]ne contract w[ould] be awarded from this Invitation to Negotiate to provide services for toll facilities assigned to the Department's six toll regions . . . consisting of the Orlando Region, Tampa Region, Palm Beach Region, North Broward Region, South Broward Region and the Miami Region." Section 5.0 of the Scope of Services was entitled, "Project Management," and read as follows: The Vendor shall provide a senior level employee to be located in the State of Florida and preferably in the area of one of the six toll facilities to act as the Program Director during the term of the Agreement with authority to act on the behalf of the vendor in any matter related to the contract personnel assigned and is responsible for all communication with the Department and the Department's Contract Manager. The Program Director shall speak, read, write and understand the English language and must be available or on-call to the Department on a 24/7 (24 hours per day, 7 days per week) basis during the term of the Contract. The Vendor shall provide emergency telephone numbers and contingency procedures for failure of first level of response. The Vendor shall respond, by telephone, to the Department within thirty (30) minutes of initial contact. The "Revenue Collection Services Vendor Team" was the subject of Section 6.0 of the Scope of Services, which read as follows: The Vendor shall establish and maintain a fully qualified team for all phases and for the duration of the contract. The Vendor shall supply all of the labor, expertise and travel necessary to provide all of the services specified herein. Contract staff performing Revenue Collection Services at the toll facilities will consist of: Toll Collectors, Toll Collector Supervisors, Toll Facility Laborers, and Couriers. The job descriptions for the above-mentioned staff are located in Attachment "B." The contract personnel shall meet the minimum requirements and be able to perform duties listed for each position. Section 7.0 of the Scope of Services was entitled, "Work Force Diversity," and read as follows: The Department desires to maintain a work force that is ethnically and culturally diverse. As such, the Vendor shall be required to provide a diverse and balanced mix of employees to meet the Department’s goal. Discrimination on the grounds of race, color, religion, sex, national origin, age or disability shall result in termination of the contract as stipulated in Section 6 of the Standard Written Agreement. Section 8.0 of the Scope of Services addressed "Recruitment, Hiring and Employment Matters." Subsection 8.1 discussed the "Screening Method" for prospective contract employees. It provided as follows: The Vendor shall establish and maintain a screening process for potential employees assigned to the project. The focus of the screening process shall be the safe and proper handling of Department revenues, and the ability to effectively communicate and deal with the motoring public. The Vendor must obtain the Department's approval of the screening methods prior to their use. Documentation of successful screening results shall be maintained in the employee's individual personnel file. Assignment of unqualified personnel may result in liquidated damages as stipulated in Section 21. The screening process will include, but not be limited to, a background check at the State level to exclude from employment individuals with financial crime records or other background history which might jeopardize the Department's ability to perform its mission. The successful results of the background check must be in the employee's individual personnel file prior to the assignment of the employee. At the request of the Department, the Vendor will periodically be required to perform a National Level background check on employees assigned to this contract. The Vendor will be reimbursed for the out of pocket expense for National Level background checks requested and approved in writing by the Department's Contract Manager. The screening process shall include a method to measure the following: the applicants' ability to speak and read English; accuracy and speed of simple math and cash calculation skills; and ability to use a computerized cashiering system to determine if they meet the minimum requirements of the position. Additional skill based evaluations approved by the Department may also be administered. Under no circumstances shall an employee be assigned to this Contract unless they have successfully passed both the English and the math and cash calculation test. The Department reserves the right to approve all tests prior to use and to test contract personnel that do not appear to meet minimum requirements. An interview process for all positions shall be conducted by the Vendor. Second interviews by the Department may be required for toll collector supervisory, laborer and courier positions prior to assignment to the Contract. The Vendor shall permanently fill vacant positions as quickly as possible, but shall have no longer than thirty (30) calendar days to permanently fill vacant positions. A vacant position does not exclude the Vendor from the responsibility to fill the required shifts left open by the vacancy. Subsection 8.2 indicated that contract employees who were related to one another could not be assigned to the same work location and that, "[a]dditionally, relatives of the Vendor's management team [could] not be assigned to this project." Subsection 8.3 prescribed the procedure the successful vendor would have to follow for "Reassignments and Rehires" of contract employees. Subsection 8.4 set forth the requirements the successful vendor would have meet with respect to "maintain[ing] individual personnel files on each contract employee." Subsection 8.5 was entitled, "Employment Matters," and read as follows: The Vendor shall be responsible for all matters pertaining to the employment, scheduling, benefits, compensation (i.e. wages, salary, unemployment, worker's compensation, etc.), payroll administration, discipline, discharge, and similar matters of personnel such as, but not limited to: mandatory Sexual Harassment and Workforce Violence training, provided under this Contract. The Vendor shall be an independent contractor of the Department in performance of its duties herein. The Vendor's personnel performing services under the Contract, shall at all times be under the Vendor's exclusive control and shall be employees of the Vendor and not of the Department. Subsection 8.6 was entitled, "Employee Direction," and read as follows: Contract personnel shall follow the directions and instructions of the Department's designated representative and shall be subordinate to these individuals while on duty for the Department. The Department will provide the Vendor written documentation on contract employee performance using an agreed upon form. The Vendor shall be responsible for initiating corrective and progressive disciplinary action with the contracted employee. The Vendor shall provide the Department with written notification of action initiated. Subsection 8.7 was entitled, "Employee Evaluation," and read as follows: The Department requires all contract employees receive, at a minimum, an annual performance appraisal in a format to be approved by the Department. The Vendor shall solicit input on the employee's performance from the appropriate Toll Facility Manager and/or Regional Toll Manager. The Department's input will be considered in final performance ratings and incorporated into the employee's reviews. Subsection 8.8 was entitled, "Employee Removal," and stated that "[t]he Department reserve[d] the right to require the immediate removal of any contract employee whom the Department identifie[d] as a potential threat to the health, safety security or general well-being of the Department's customers, employees, agents, assets or whomever the Department determine[d] d[id] not meet the minimum performance requirements of the position." The subject of Section 9.0 of the Scope of Services was "Staffing, Scheduling, Shift Reporting and Time Keeping." Subsection 9.1 addressed "Staffing and Scheduling." It indicated, in its introductory paragraph, that the "vendor w[ould] be required to provide contract employees, as described herein, for a 24/7 operation at times and locations required by the Department." Subsection 9.1.5.2 discussed "replacement employees." It provided as follows: The Vendor shall be responsible for providing replacement employees for scheduled Vendor employees who fail to report to work or are otherwise unavailable. The Vendor is required to provide replacement employees as quickly as possible, but no later than one (1) hour of the beginning of the schedule[d] shift, or at the beginning of the scheduled shift time if notified at least one (1) hour before the scheduled shift. Requests for replacement employees will be made verbally to the Vendor by the Department managers or their designee. The Department reserves the right to require another contract employee from the off-going shift to remain on-duty until the replacement employee arrives. Compensation for such shift extensions will be billed at the Vendor's hourly rate. No overtime additive rate will be paid by the Department for any hours worked by the Vendor's employees. Subsection 9.2 addressed "Shift Reporting and Timekeeping." It read as follows: Contract personnel shall be required to report to the on-duty manager or supervisor at the beginning of their assigned shift at the specified toll facility location. Contract employees shall be required to record their shift starting and ending times and all rest and meal breaks on prescribed forms or by use of an electronic timekeeping device provided by the Department. Hours worked shall be calculated using the Department method for calculating hours. The Department's method for calculating hours is provided in Attachment "C." The Vendor shall be required to verify hours worked with the Department Toll Facility Manager weekly and the Department Region staff monthly. The Department will pay the Vendor's hourly rate for hours worked by contract employee positions, described herein, on approved schedules and for training required by the Department. All other hours shall be considered non-billable and should not be reflected on the time logs or monthly invoice. Orientation given to contracted employees is not considered training and therefore is not billable as time worked.[10] The Department strongly discourages use of overtime for this contract. To that extent, the Vendor shall not be able to bill at an overtime hourly billing rate when the Vendor provides an employee who works in excess of forty (40) hours per week on this contract. This does not eliminate the Vendor's responsibility to comply with the federal or state employment laws should a contract employee work in excess of forty (40) hours in a week. Section 10.0 of the Scope of Services dealt with "Employee Pay, Benefits, Recognition and Retention Programs." The prefatory language of this section read as follows: The Department desires to maintain an experienced workforce through retention of quality employees and programs that reduce unnecessary turnover and training costs. The Vendor shall minimize turnover rates by providing salaries that are competitive within the area and benefits to its full- time employees and maintain a well-trained staff by implementing timely performance recognition and feedback, incentive programs and an effective communication plan. The Department requests that the Vendor define in its technical proposal their evaluation, recognition, incentive and communication plan. Additional methods for staff retention may be presented by the Vendor to the Department for review and approval. The Vendor shall be responsible for tracking contract employee turnover and providing monthly reports, in a format approved by the Department, by position, Region and toll facility. The Vendor shall provide its method for calculating and reporting turnover in its technical proposal for the Department. Subsection 10.1 discussed "Stable Workforce." It read as follows: The Vendor shall provide a stable workforce which will include both full-time and part- time employees. The Vendor shall be required to maintain a 75% minimum full-time contract employee workforce at each toll facility. Full-time employees are defined as employees whose position requires them to work a minimum of thirty-two (32) hours per week. Subsection 10.2 discussed "Employee Pay." It read as follows: The Vendor shall be required to pay the minimum hourly starting wages by position classification and Region as outlined in the table below. Should at any time the federal or state minimum wage rate laws change such that such governmental minimum wage rates exceed the minimum wage rates established in this contract, the Contractor shall use the minimum wage rate required by governing law as the starting wages. MINIMUM STARTING WAGES Orlando: TOLL COLLECTOR- TOLL COLLECTOR SUPERVISOR- $7.25 $9.25 TOLL FACILITY LABORER $8.00 COURIER $9.00 Tampa: TOLL COLLECTOR- TOLL COLLECTOR SUPERVISOR- $7.00 $9.00 TOLL FACILITY LABORER $7.50 COURIER $9.00 Palm Beach: TOLL COLLECTOR- TOLL COLLECTOR SUPERVISOR- $7.00 $9.00 TOLL FACILITY LABORER $8.00 COURIER $9.00 North Broward: TOLL COLLECTOR- TOLL COLLECTOR SUPERVISOR- $7.00 $9.25 TOLL FACILITY LABORER $8.00 COURIER $9.00 South Broward: TOLL COLLECTOR- TOLL COLLECTOR SUPERVISOR- $7.00 $9.25 TOLL FACILITY LABORER $8.00 COURIER $9.00 Miami: TOLL COLLECTOR- TOLL COLLECTOR SUPERVISOR- $7.00 $9.25 TOLL FACILITY LABORER $8.00 COURIER $9.00 Effective July 1, 2007, and on each annual anniversary thereof, the minimum hourly starting wage for each position classification within each Region shall increase by 3%. The Vendor shall be required to provide each retained contract employee hired at least their current rate as of December 13, 2005, or if the retained contract employee was earning less than the minimum required by this contract, such retained contract employees shall be paid at least the minimum required for their position. The current rate of pay, as of December 13, 2005, of retained contract employees is shown in Attachment D. The names of retained contract employees will be provided to the Vendor upon execution of the Contract. The Vendor shall define in its proposal how it will address annual adjustment of salary rates for its employees to include, but not limited to, merit and cost of living increases. The Vendor shall also address any other programs it plans to implement that would increase the compensation paid an employee such as bonuses. * * * Subsection 10.3 discussed "Employee Benefits." It read as follows: The Department desires to maintain an experienced work force through the recruiting and retention of quality employees. In order to meet the Department's goal, the Vendor shall provide an employee benefits program that, at a minimum, provides the following: Group Medical Coverage: Affordable medical coverage which is in part subsidized by the contract and is available for all full-time employees no later than 90 days after their hire date. There will be no waiting period for insurance coverage for retained contract employees participating in the current contractor's medical plan. This coverage must allow for, at minimum, single and family coverage. Paid Vacations for full-time employees. Full-time employees are defined as employees whose position requires them to work a minimum of thirty-two (32) hours per week. Retained contract employees will be eligible for vacation based on their total years of service in providing toll collection services to the Department whether as a Department or contractor employee. Retained contract employees will not have a waiting period to earn or use their vacation time. Paid Sick Leave for full-time employees. Retained contract employees will not have a waiting period to earn or use their sick leave. Holiday Pay for full-time employees to include: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day. The Vendor shall address how it plans to compensate holidays for employees required to work on holidays and how it plans to compensate holidays for employees whose scheduled day off falls on the holidays. The Vendor shall define in its technical proposal an attractive benefit package aimed at staff retention. The Vendor shall include [an] individual's out of pocket expenses for group medical coverage for both single and family. The Vendor shall also include in its proposal the vacation and sick leave policy including the amount of hours earned annually and retention of such hours earned. The Vendor shall also include any other benefit programs available to employees. Subsection 10.4 discussed "Incentive Program[s]." It read as follows: The Department understands the need to reward its staff. Incentive programs are critical to maintain a dynamic and enthusiastic workplace. The following goals should be considered the basis for implementing incentive programs: To boost morale and provide challenge to a routine day. To create an atmosphere of healthy competition, thus providing enhanced customer care and overall work results. To challenge and strengthen the ability of a struggling employee. The Vendor shall implement incentive programs for its employees assigned to this contract. Competitions can be set up as individual contests, teams located at the same toll facility, teams representing toll facilities in the same Region, and/or teams representing an entire Region. Prior to implementation, the Department shall approve the program and its monthly awards and rules. The Department expects the following parameters to be considered as part of a Vendor's proposal for incentive programs. All contract personnel should be eligible for incentives. The amount of monthly incentives should not exceed $10.00 per person with a total maximum dollar value based on no more than 30% of the total number of active contracted employees receiving an incentive in any given month. The 30% shall be calculated by Region. The number of active employees will be determined by the previous monthly report. The incentives will be awarded on a schedule approved by the Department but no less than once a month. Incentives can include, but are not limited to, store gift certificates, restaurant gift certificates, trophies, certificates of achievement, plaques, bonuses, movie passes, toll facility lunches, Regional events and points established in an awards catalogue. All incentives will be approved in advance by the Department. The Vendor shall provide the Department, on a monthly basis, a list of individuals who received incentives and a description of the incentive received, including the value. The Contractor's incentive program is not eligible as a direct reimbursable expense under this contract. Section 11.0 of the Scope of Services was entitled, "Employee Orientation and Training."11 It read as follows: It is the Department's desire to have a well-trained and motivated staff focused on the mission. Orientation The Vendor shall develop and furnish a general orientation program for all contracted personnel. This orientation shall not be considered training.[12] The program shall be submitted to the Department for review and approval prior to commencement of the work. Specific subjects to be covered shall include, but not be limited to, an overview of the Department's toll operations, customer service, safety, lane crossing procedures, uniform and dress code requirements, non revenue travel policies, and an explanation of specific contract provisions related to employee behavior and performance. Each contract employee must complete the orientation program prior to reporting to an assigned work location. Orientation for a contracted employee is not considered time worked and therefore such hours are non-billable.[13] The Vendor shall provide Department staff written certification of the orientation completion for each contract employee. Certification must be included in the employee's individual personnel file. Interactive Training The Department will provide an interactive training program for toll collectors by Department employees.[14]. All toll collectors and toll collector supervisors (with no previous toll collector experience) shall be required to successfully complete interactive training prior to assignment to a toll facility for on-the-job training. The interactive training program is administered primarily by Department managers. On-The Job (OJT) Training Upon completion of the orientation and interactive training programs, contract employees will be assigned to a toll facility for on-the-job operational and equipment training. Employees must successfully complete OJT before being assigned to a lane or shift. The Department currently has an OJT program in place for all contract positions described herein. The program includes using designated contracted employees as trainers. The Vendor shall work with the Department in improving the OJT program as needed. Additional Training Requirements The Vendor shall be required to develop additional training programs for contracted employees to meet Department requirements. This additional training includes, but is not limited to, Sexual Harassment, Work Place Violence, Safety and Customer Service. The Department shall approve all training programs before they are administered. Training Compensation The Department shall pay for attendance of contract employees at initial or follow-up Department provided or mandated training at the employees' hourly rate. Training History and Record The Vendor shall be required to maintain records on contracted employees' training history. The Vendor is responsible for ensuring that all employees have the proper training required for their position. The Vendor shall provide these reports as requested by the Department in a format that will be compatible with the Department's database. Section 12.0 of the Scope of Services was entitled, "Uniforms." Subsection 12.1 provided that "[t]he Department w[ould] provide uniforms to the Vendor to be issued to employees assigned to the contract." Subsection 12.2 read as follows: Contract employees shall be expected to be in uniform within two weeks of assignment to their work unit. Employees shall be required to sign a toll uniform receipt, acknowledging receipt of the uniform items issued. A copy of the receipt shall be included in the employee’s individual personnel file. The remaining subsections of Section 12.0 imposed additional requirements that the Vendor awarded the contract would have to meet with respect to "Uniforms." Section 13.0 of the Scope of Services was entitled, "Photo Identification, Name Tags and Access Cards." Subsections 13.3.1 through 13.3.5 read as follows: Upon satisfactory completion of orientation and training programs, the Vendor shall place an order for the access card to the Department by providing the contracted employee’s name and a unique identification number on the prescribed form. The employee access card will be issued to the contract employee by the Department. The contract employee shall be required to sign an acknowledgement receipt for the card. The Vendor shall be responsible for collecting employee access cards from contract employees at the time of their termination and for returning the access cards to the Department. The Vendor shall immediately notify the Department of lost, stolen, or unreturned employee access cards. The Vendor is responsible for all access cards issued to contracted employees. The Department will assess a replacement charge to the Vendor for any lost or damaged cards. The Department will replace any worn card, damaged due to normal wear and tear. It is the sole determination of the Department to determine if the card was damaged due to normal wear and tear or through employee misuse. The Department will send a monthly statement to the Vendor detailing the total amount due for lost or damaged cards which shall serve as an invoice. The Vendor has sixty (60) days from the date of notice to reimburse the Department for all lost or damaged cards. Section 15.0 of the Scope of Services was entitled, "Transportation." Subsection 15.1 addressed "Department Vehicles" and included the following provisions: The Vendor shall maintain and provide proof annually of automobile liability insurance covering all vehicles with minimum combined single limit for bodily injury and property damage of at least $500,000. All such policies of insurance shall name the Department as an additional insured, as its interests may appear, and shall not be canceled without thirty (30) days' written notice to the Department. The Vendor shall be responsible for any and all damages caused by its employees, agents or sub vendors as a result of the operation of any Department vehicle. Subsection 15.2 discussed "Payment for Mileage" and provided as follows: In the event that a Department vehicle becomes unavailable for use, for whatever reason, Contract employees will be required to use their personal vehicles for travel to and from the assigned toll facility administration building to remote ramps or other work locations. The Vendor shall be required to reimburse the employee for this mileage at the Department's reimbursement rate. Mileage reimbursement will be billed separately and should not be included in the price proposal. Section 16.0 of the Scope of Services was entitled, "Reports." Subsection 16.4 discussed "Training Reports," and read as follows: The Vendor shall be required to maintain records on contracted employees' training history. The Vendor shall provide these reports as requested by the Department in a format that will be compatible with the Department's database. Section 17.0 of the Scope of Services addressed "Invoice Requirements." Subsection 17.2 set forth procedures for "Invoicing for Payment." Section 19.0 of the Scope of Services concerned "Equipment, Manuals, Policies and Procedures" and read as follows: The Department will provide all equipment and materials required for operations at the toll facilities for use, as needed, by the contracted employees. The Department will also provide the State rules and regulations for use of such items to the Vendor. These rules and regulations shall be adhered to at all times during the length of the contract. The Department's RCS Operating Procedures, Safety Procedures, Comprehensive Emergency Management Plan manuals and Quality Assurance Review program will be made a part of the Contract by reference. Such documents will be available for review at designated Department offices. Section 20.0 of the Scope of Services was entitled, "Workday Shortages," and read as follows: The Department routinely performs daily audits and security investigations on toll employees to ensure that vendor's employees are following proper cash handling procedures. The Vendor shall cooperate with the Department during these investigations and provide [the] Department with all information requested on a contracted employee as soon as possible. When an employee has a cash shortage(s), $50 or higher, that is determined, at the sole discretion of the Department, to be caused by contracted employee error, contracted employee theft or is unrelated to any equipment issues, the Vendor will be responsible for reimbursing the Department for the shortage(s). The Department will send a written notice informing vendor of the shortage(s) and Vendor will have thirty (30) days to reimburse the Department for this amount. Historical information for toll collector shortages of $50 or higher invoiced under the current contract is provided in Attachment E. Section 21.0 of the Scope of Services described circumstances under which the vendor awarded the contract would have pay the Department "Liquidated Damages." Section 22.0 of the Scope of Services was entitled, "Implementation Plan," and provided as follows: The Vendor shall provide an implementation plan in its technical proposal detailing how they would staff and train employees for toll facilities, as well as transition the current Vendor's staff to be operational within thirty (30) days from the execution of the contract. The implementation shall be sufficient in detail to clearly demonstrate the Vendor's knowledge of the steps necessary to implement this contract. Within five (5) days of execution of the contract, the Vendor shall provide an update of the Implementation Plan, which will include a detailed schedule of when each activity is to commence and end. This schedule shall also provide the names of the responsible person(s) or parties that are to complete each activity. This implementation plan shall be in sufficient detail as to clearly demonstrate the Vendor's ability to manage the implementation process. Section 23.0 of the Scope of Services was entitled, "Transition," and provided as follows: The Department is currently under contract for staffing. Under this agreement, the current Vendor has paid its employees and provided them with certain employee benefits. The Vendor awarded this contract, shall engage with the current Vendor's staff as follows: First Right of Refusal for Positions The Vendor shall provide first right of refusal to each current Vendor's employees, hereafter referred to as retained contract employees, who desire to be employed by the Vendor. This includes contracted employees covered under this contract; toll collectors, toll collector supervisors, laborers and couriers; and does not include the current Vendor's management team or office personnel. The Vendor shall offer the retained employees the same or equivalent position the employee held as of the last day of the term of the previous Vendor's agreement. If an employee is not offered a position, the Vendor must provide the reason in writing to the Department. Salaries The Vendor agrees to provide each retained contract employee hired their current rate as of December 13, 2005, or if the retained contract employee[] was earning less than [the] minimum required by this contract, such retained contract employee shall be paid at least the required minimum of their position. The current rate of pay, as of December 13, 2005, of retained contract employees is shown in Attachment "D." The names of retained contract employees will be provided to the selected Vendor upon execution of the contract. Insurance Benefits Insurance benefits shall meet or exceed ITN specifications, as per Section 10.3. The probationary period for any health benefits shall be waived for the retained contract employee participating in the current contractor's medical plan. The benefits shall become effective as of the date the Vendor hires the employees. Vacation and Sick Leave Vacation and sick leave benefits shall meet or exceed ITN specifications as per Section 10.3.2 and 10.3.3. The vacation and sick leave benefits of each retained contract employee shall be calculated as of the date the Vendor hires the retained contract employee based on their total years providing toll collection services for the Department whether as a Department or contractor employee. Holiday Pay Holiday benefits shall meet or exceed the ITN specifications as per Section 10.3.4. Any probationary period for the receipt of holiday pay benefits shall be waived for all retained contract employees and be in effect beginning the first day the Vendor hires the retained contract employee based on their total years of service providing toll collection services for the Department whether as a Department or contractor employee. Anniversary Date Retained contract employees will maintain their current anniversary date for leave calculation. Section 24.0 of the Scope of Services was entitled, "Department Employment Opportunities," and read as follows: The Department may periodically advertise for permanent Department positions. In the event that an employee of the Vendor is selected to fill a Department position, the Department will provide, at minimum, two (2) weeks notice to allow the Vendor time to replace the employee. NON EXCLUSIVITY CLAUSE IN CASE OF DEFAULT OR CONTRACT TERMINATION: The Contractor agrees that should they default or the contract is terminated, the Contractor’s staff will have the right with no penalties and at no cost to be hired by the Department or the new Vendor to conduct the work. Section 25.0 of the Scope of Services discussed "Subcontracting or Assignment of Work" and read as follows: The Vendor shall not subcontract, assign, or transfer any work under this Agreement without the written consent of the Department. After written consent of the Department, the Vendor will be permitted to subcontract a portion of the work, but shall perform within its organization, work amounting to not less than 51% of the total contract amount. Any and all sub vendor[]s are required to be qualified and certified, in accordance with requirements herein, meet all federal, state and local regulations, and be approved by the Department. Subcontracting of work shall not relieve the Vendor of its respective liabilities. The Department recognizes a subcontractor only in the capacity of an employee or agent of the Vendor. The Vendor may subcontract with a qualified non-profit agency as defined in 413.033, Florida Statutes, through RESPECT agency as authorized under 413.036, Florida Statutes and any such subcontracting will not be subject to the 51% restriction. Section 26.0 of the Scope of Services was entitled, "Licenses and Fees," and provided that the vendor awarded the contract would "be responsible for all licenses and fees associated with performance of this Contract." Section 27.0 of the Scope of Services was entitled "Succession Planning." It advised that the vendor awarded the contract would be required to "provide a Succession Plan for the transfer of operations at the end of the contract, in the event the Vendor cannot, will not, or is not allowed to continue operations." Method of Compensation Section 3.0 of the Method of Compensation discussed "Progress Payments." It read as follows: For the satisfactory performance of services, the Vendor shall be paid monthly for the following: Hours worked by contract employees performing toll collection activities or receiving required training will be paid for at the contract hourly billing rates established in Exhibit "C" [Price Proposal], Schedule 1a, attached hereto and made a part hereof. The contract hourly billing rates shall include the cost of salaries, overhead, fringe benefits, overtime, contract management, administration, operating margin or profit, and all expenses except the expenses defined herein as allowable. Regional Office expenses shall be paid for at the monthly lump sum amount established in Exhibit "C," Schedule 1b, attached hereto and made a part hereof. Actual costs of the following items which shall be supported by receipts. Unless specifically approved in writing by the Department, there will be no direct reimbursement of any other items. Travel expenses associated with Department authorized travel of contracted employees. No travel expense shall be paid for contract employee[s] when reporting to work at their assign[ed] Toll Facility Administration Building. When directed by the Department, out of pocket expenses associated with obtaining a National Level background check on a contract employee assigned to this project. When directed by the Department, out of pocket expenses associated with participation in a customer services and satisfaction assessment. "Minority Business Enterprise Utilization (MBE)" was discussed in Section 4.0 of the Method of Compensation, which read as follows: When subcontracting services or making reimbursable purchases, the Vendor should take all necessary and reasonable steps to ensure that minority businesses have the opportunity to compete for and perform contract work for the Department in a non- discriminatory environment. An MBE certification form shall be submitted by the Vendor with each invoice. Form 1: Qualifications Questionnaire Form 1, with its various attachments, contained the "Qualifications Questionnaire" referred to in the ITN's Special Conditions. The following "Instructions to the Qualifications Questionnaire" were set forth in the form: The Proposer is required to complete and return this Qualifications Questionnaire (Form 1) and include as part of this questionnaire, a Dun & Bradstreet Report. This information shall be included as part of the Proposer's Proposal as set forth in the Special Conditions in ITN-DOT-05/06- 8007-EH. Failure to properly complete this Qualification[s] Questionnaire (Form 1) or to provide requested related information, either in part or in its entirety or fail[ure] to provide the Dun & Bradstreet Report may result in the rejection of the Proposer's application for qualification.[15] If the Proposer's Qualification[s] Questionnaire is rejected, the Proposer's Proposal will not be considered. When completing the Proposer's Qualification Statements, the Proposer is required to use either ink or typewriter (black ribbon) and affix signatures where required. NOTICE: APPLICANTS FOR QUALIFICATION ARE HEREBY NOTIFIED THAT INTENTIONAL INCLUSION OF FALSE, DECEPTIVE OR FRAUDULENT STATEMENTS ON THIS APPLICATION CONSTITUTES FRAUD. FURTHERMORE, APPLICANTS ARE HEREWITH NOTIFIED THE STATE OF FLORIDA CONSIDERS SUCH ACTION ON THE PART OF AN APPLICANT TO CONSTITUTE GOOD CAUSE FOR DENIAL OF THE QUALIFICATION FOR BIDDING ON STATE PROJECTS LET TO CONTRACT BY THE STATE OF FLORIDA DEPARTMENT OF TRANSPORATION. DUN AND BRADSTREET REPORT The Department has chosen Open Ratings (a partner of Dun & Bradstreet) to assist with the evaluation process of this ITN through a report that Open Ratings will generate about your company when you provide them with the requested information. The report is called "Past Performance Evaluation/Supplier Evaluation Review" (PPE/SER) and will provide an overall rating on timeliness, problem responsiveness, quality of purchased products or services, total cost, technical support, deliveries/quantities, and attitude of vendor personnel. This report must be submitted with your "Qualifications Questionnaire." Information and Forms are attached. It is mandatory that you order and pay for this report and submit the results with your reply to the "Questionnaire" in order to be considered for this contract. Because this Report takes approximately four weeks to complete, interested vendors are encouraged to submit their request to Open Ratings in a timely fashion. In the event your firm has obtained this report within the past twelve months, such report will be acceptable and will meet this requirement. REQUIRED FORMS The Proposer shall complete the following required forms of this Qualification[s] Questionnaire: Form 1- Attachment No. 1A: Organization - Prime Form 1- Attachment 1B: Organization - Subcontractor Form 1- Attachment 1C: List of Completed Projects Form 1- Attachment 1D: List of Current Projects Under Contract Form 1- Attachment 1E: Required Background Information Form 1- Attachment 1F: Staffing - Program Director Form 1- Attachment 1G: Staffing - Other Key Personnel Form 1- Attachment 1H: Proposer's Surety History Form 1- Attachment 1I: Subcontractor Approval List Reference Checks The Department may choose to perform reference checks on one or more, but not necessarily all of the Proposers as a result of the Department's review of the Dun & Bradstreet Report or other information provided in this Qualification[s] Questionnaire. Some, but not necessarily all of the purposes for reference checks, if performed, will be to determine the level of satisfaction and quality of service provided by the Proposer to present and past clients in the areas of: General performance of the proposed services Technical Competency Compliance with implementation plans Project management Working within the projected dollar amounts General responsibilities Contract compliance Customer satisfaction Adherence to project schedule Employee satisfaction. Note: The results of the reference checks, if performed, may be graded as part of the overall evaluation. The Proposer is advised that the Program Director named in this Questionnaire as well as any other named key staff may be contacted or required to attend an interview with the Department if additional information is required for the purpose of understanding or confirming the information furnished. Form 1- Attachment 1C: List of Completed Projects, contained the following "attachment-specific" instructions: The Proposer shall list representative[16] projects or programs the Proposer has completed during the past five (5) years in the area of providing staffing services for a client with employees of the Proposer. The Proposer shall ensure that the Principal Contact and telephone number information is current so the Department may contact the customer (attach additional sheets if necessary). There were spaces on the form for the vendor to provide: "Customer Name"; "Project Name & Brief Description"; "Principal Contact Name"; "Principal Contact Title"; "Address"; "Telephone Number"; "Location of Work"; "Prime or Subcontractor"; "Number of Staff Provided"; "Contract Start Date"; "Scheduled Completion Date"; "Actual Completion Date"; "Value of Work Performed"; and "Other Pertinent Information." Form 1- Attachment 1D: List of Current Projects Under Contract, contained the following "attachment-specific" instructions: The Proposer shall list representative[17] projects or programs the Proposer has under contract in the area of providing staffing services for a client with employees of the Proposer. The Proposer shall ensure that the Principal Contact and telephone number information is current so the Department may contact the customer (attach additional sheets if necessary). There were spaces on the form for the vendor to provide: "Customer Name"; "Project Name & Brief Description"; "Principal Contact Name"; "Principal Contact Title"; "Address"; "Telephone Number"; "Location of Work"; "Prime or Subcontractor"; "Number of Staff Provided"; "Contract Start Date"; "Scheduled Completion Date"; "Actual Completion Date";18 "Value of Work Performed"; and "Other Pertinent Information." Form 1- Attachment 1F: Staffing - Program Director, directed that the following information "for the planned Program Director" be supplied on the form in the spaces provided: "Name"; "Title"; "What percentage of his/her time will this person devote to this Project"; "Is this individual currently employed by Proposer"; "If yes, number of years employed"; "Is this individual currently employed by Proposer's subcontractor"; "If yes, number of years employed"; "If this individual is not currently employed by Proposer or Proposer's subcontractor, does the Proposer or subcontractor have a Letter of Commitment from this individual"; "Current employer name"; "Address"; "telephone number"; "Does this individual currently live in the State of Florida"; and "If no, does the Proposer or Subcontractor have a Letter of Commitment from this individual to move to the State of Florida." It then further directed that the vendor also supply on the form in the spaces provided "a list of project(s) where this individual has had the responsibilities and has performed the duties similar to the Project responsibilities and duties being proposed with the following information: Project name; Employer; Client name; Start and end dates of project assignment; Address; [and] Telephone number of Client." Form 1- Attachment 1G: Staffing - Other Key Personnel, directed that the following information "for [the vendor's] planned key personnel" "(as determined by [the vendor])" be supplied on the form in the spaces provided: "Name"; "Title"; "What percentage of his/her time will this person devote to this Project"; "Is this individual currently employed by Proposer"; "If yes, number of years employed"; "Is this individual currently employed by Proposer's subcontractor"; "If yes, number of years employed"; "If this individual is not currently employed by Proposer or Proposer's subcontractor, does the Proposer or subcontractor have a Letter of Commitment from this individual"; "Current employer name"; "Address"; and "telephone number." It then further directed that the vendor supply on the form in the spaces provided "a list of project(s) where this individual has had the responsibilities and has performed the duties similar to the Project responsibilities and duties being proposed with the following information: Project name; Employer; Client name; Start and end dates of project assignment; Address; [and] Telephone number of Client." Form 1, Attachment 1I: - Subcontractor Approval List, contained the following additional "attachment-specific" instructions: This form is included as a Proposal requirement to assist the Department in the evaluation of the subcontractor(s) proposed by the Proposer for the work under this ITN (attached additional sheets as necessary) Once approved by the Department, subcontractor substitutions, additions, or replacements must receive prior written approval. All subcontractors assigned more than five percent (5%) of the Contract dollar value per year are considered Major Subcontractors and must be listed. The Proposer shall also provide identification of all major subcontractors who are Minority Business Enterprises (MBEs). Form 5: Corporate Resolution Form 5 contained the following form resolution: NOW THEREFORE, IT IS RESOLVED, that the (specify authorized officer; e. g. President, Vice President, Treasurer) of this corporation or LLC is hereby authorized and empowered on behalf of the corporation or LLC to enter into a contract with the State of Florida, Department of Transportation, in consideration of Dollars ($ ), upon the terms and conditions contained in the proposed contract, a copy of which is attached hereto as Exhibit A, and made a part hereof. Preparation of Faneuil's Reply, Including Ms. Stemle's Involvement Anna McNider is Faneuil's Vice President and Managing Director of Government Services. Ms. McNider was responsible for putting together Faneuil's reply to ITN 007. She thought it would "helpful" to have a consultant with expertise in toll operations to not only "look over her proposal" before it was submitted, but to also commit to being a part of the "ongoing management of the contract" if it was awarded to Faneuil. In late February 2006, Ms. McNider contacted TEAMFL, a Florida toll industry association, asking for the name of someone who might be able to provide this help. Ms. Stemle was recommended. Ms. Stemle was by now employed in the private sector. She was working as a senior consultant - toll operations for Montgomery Consulting Group (MCG), a Department-certified Disadvantaged Business Enterprise, and had been in this position since accepting an "Offer of Employment" from MCG, dated March 19, 2004, which read, in part, as follows: The Montgomery Consulting Group, Inc. (MCG) is pleased to offer you a part-time position as a senior consultant - toll operations. Your position centers on providing strategic planning and consulting services for specific task assignments on projects with the Florida Turnpike Enterprise Authority and their general consultant, Post, Buckley, Schuh & Jernigan (PBS&J) and others as may be appropriate. . . . As project manager for MCG, Monty Gettys will coordinate your activities; however, specific PBS&J and Turnpike staff may direct your day-to-day activities. You should closely coordinate all contractual and budget matters with Monty Gettys. As an MCG employee, Ms. Stemle had provided (and was continuing to provide) sub-consultant services to the Turnpike Enterprise. In her capacity as a sub-consultant, she worked on projects for the Turnpike Enterprise's Toll Systems Support and Maintenance unit. This, at times, involved her serving on committees and otherwise interacting with Ms. Burger and some (but not all) of the regional toll managers. She also, as a sub-consultant, helped Mr. Suarez prepare a presentation he was going to give to the Department Secretary on the Turnpike Enterprise's experience with toll operations "over the years," including its "privatization effort[s]." Her task was to obtain the historical information Mr. Suarez needed for his presentation. On February 22, 2006, Ms. Stemle met with Ms. Burger in Ms. Burger's office to retrieve a "file" that contained such information. The meeting lasted approximately 15 minutes. During the meeting, Ms. Burger told Ms. Stemle that the toll facility staffing services contract "was out for bid again,"19 but provided no other information about the matter. Up until this point in time, Ms. Stemle had not known anything about this solicitation. She had not been involved in any way in the drafting or issuance of either ITN 006 or ITN 007. To enable her to more efficiently provide services to the Department as a sub-consultant, Ms. Stemle was given a Department e-mail address and a card that gave her access to the "offices and conference rooms" in the Turnpike Enterprise's Boca Raton facility (but not to the "computer room" in that building where computer hardware storing data relating to the Turnpike Enterprise's toll operations is located). Other consultants that Ms. Stemle worked with had the same access. On February 27, 2006, after having spoken with her attorney and finding out from him that Ms. Stemle was a former Director of Toll Operations with the Department, who was, in the attorney's opinion, "nice" and "very well respected," Ms. McNider telephoned Ms. Stemle to see if she would be interested in teaming with Faneuil to provide the Department with the services it was seeking through ITN 007. Ms. Stemle told Ms. McNider that "she might be interested but that she worked for a company called Montgomery Consulting, and that [Ms. McNider] would have to talk to her boss," Monty Gettys. During their conversation, Ms. Stemle truthfully assured Ms. McNider that she had "absolutely nothing to do with the preparation of [ITN 007]." After Ms. McNider spoke with Ms. Gettys, Faneuil and MCG entered into a "Teaming Agreement," dated March 1, 2006, which read, in pertinent part, as follows: The Teaming Agreement is entered into by and between Montgomery Consulting Group, Inc. ("MCG") and Faneuil, Inc., each a "Party" and collectively the "Parties." The Proposed Transaction. MCG and Faneuil desire to assess the commercial viability of providing Revenue Collection Services - Toll Operations to the Florida Department of Transportation (FDOT) with the intent of Faneuil submitting a proposal and making a presentation (if asked) for FDOT Advertisement Number ITN-DOT-05/06-8007-EH. If Faneuil is successful in obtaining a contract with FDOT for this project, it is the intention that MCG would provide professional consulting services as a subcontractor to Faneuil in support of this project. The Draft Term Sheet. To assist in discussions on the proposed transaction if the team is successful, some of proposed principal terms and conditions that may be contained in future, definitive, written agreements are set forth on the Draft Term Sheet attached hereto as Exhibit "A." The Teaming Agreement and Term Sheet are intended to be and shall be construed only as the proposed framework for discussions between MCG and Faneuil and their respective representatives. Non-Exclusive Arrangement. The Parties agree that teaming together for this project is not an exclusive arrangement. Faneuil and MCG may join in commercial pursuits and/or team with other firms pursuing this project. . . . * * * Exhibit "A" to the "Teaming Agreement" provided, in pertinent part, as follows: Pursuit Defined FANEUIL intends to respond and pursue the above referenced project [ITN-DOT-05/06- 8007-EH]. MCG intends to assist FANEUIL in preparation of such response. FANEUIL shall be the prime contractor and MCG shall be a subcontractor for any agreement that may arise from a successful effort in obtaining a contract with FDOT. * * * Services FANEUIL desires to be the prime contractor for the project and would have the direct contractual relationship with FDOT. MCG desires to be a subcontractor to FANEUIL to provide professional toll operations planning services throughout the contract period and provide a senior tolls consultant (i.e., Debbie Stemle) to act as subject matter expert on the Toll Collection Services contract, including, but not limited to: Initial Project Start-up/Initiation: Contract award to complete transition in each region providing overall operational support during transition and implementation including, but not limited to, integration with Turnpike Enterprise organization and business practices, staffing models, training program content, training delivery methodologies, contract requirement fulfillment strategies, resource utilization analyses and techniques to maximize efficiencies. Expected commitment level of MCG: Approximately 20-24 hours per week (on average) for senior tolls operation consultant. Screening Staff: MCG senior management (i.e. Debbie Stemle or other senior staff) would assist Team with screening of contract management employees. Expected commitment level of MCG: Be part of team throughout contract period for MCG Senior Management Staff. Ongoing responsibility as needed for review of routine business information reports and continuous improvement to operating processes and programs. Expected commitment level of MCG: Approximately 4-8 hours per week (on average) for senior tolls operation consultant. Special needs such as implementation of changes in contract scope, dispute resolution, quality assurance, and other identified needs. Expected commitment level of MCG: Be part of team throughout contract period for MCG Senior Management staff. * * * Ms. Stemle met with Ms. McNider in Orlando on Friday, March 3, 2006, and Saturday, March 4, 2006, to go over Faneuil's reply to ITN 007, which was due on March 7, 2006. After reviewing the document, Ms. Stemle recommended that certain changes be made including adding two satellite offices (one in the Panhandle and one in Naples); "hav[ing] the head office [in Orlando physically] separate from the regional office [there]"; "ton[ing] down" the role of the other subcontractor, Imperial Parking US), Inc. (Impark); eliminating unnecessary layers of management; and deleting details regarding "cash controls and auditing functions." Faneuil's reply was revised accordingly and subsequently submitted in a timely manner to the Department. Contents of Faneuil's Reply Faneuil's reply was responsive to ITN 007 in all material respects. As required by ITN 007, Faneuil's reply included a Technical Proposal, Price Proposal, and filled-out Forms 1 through 4 (including, as part of Form 1, a Dun and Bradstreet/Open Ratings report20 reflecting an "overall performance rating" of 87, with no "Negative Feedback"21). It also included a completed "Corporate Resolution" (Form 5). As required by ITN 007, Faneuil's Technical Proposal included an Executive Summary; an Administration and Management Plan (supplemented by resumes of management personnel who would be assigned to the project22); a Staffing Plan; provisions relating to Recruitment, Hiring and Employment Matters; Employee Pay, Benefits, Recognition and Retention Programs23; and an Implementation Schedule and Plan. As part of its Staffing Plan, Faneuil provided the following discussion (along with explanatory charts and diagrams) regarding its "change management philosophy": Faneuil's change management philosophy includes two concurrent components: change monitoring and change execution. Faneuil uses a virtual command center method to view and respond to the effect of staff changes to schedules in real-time. The command center team comprised of six Scheduler/Dispatcher positions covering the 24/7 hours of operation executes schedule changes in order to minimize the impact on staffing coverage.[24] On-duty command center staff as well as Department managers or Toll Supervisors will be able to monitor staffing levels across all facilities via our workforce management system. Faneuil's use of integrated time collection software provides real-time staffing attendance information specific to each toll facility and region. Faneuil tracks employee attendance using the time collection system and provides trending reports so that long-term and near-term actions can be implemented to respond to absenteeism and attendance issues. The integrated attendance data enable Dispatchers to react in real-time when employee[]s sign on late- the display uses color-coded schedule verification to view staff status based on actual sign in time. Schedules are highlighted in different colors based on user-defined parameters and thresholds to help monitor position status changes. Real-time monitoring of shift sign ins/sign outs allows command center personnel the ability to assess staffing shortages at any time. The change management process includes: Monitoring real-time displays of actual shift sign in/sign out to identify staffing shortages due to absences or late shift sign in. Maintaining communication with Department Manager and Toll Supervisor on employee activities and schedule assignments. Escalating to Department Manager and Toll Supervisors when changes in personnel shift assignment occur within a 2-hour period. Maintaining communication with Toll Supervisors. Coordinating with Toll Supervisors to ensure proper staffing levels for each toll facility. Processing employee transactions such as vacation requests, status change requests, leave of absences, etc. Using workforce management software to adjust schedules, assign shifts, and determine on-call availability for replacement shifts or emergency call-in situations. The command center will be able to view employees work availability so on-call employees can fill workforce shortages. Faneuil surveys employees to determine their work preferences, location, on-call availability, and on-call notice method. This process allows the command center to quickly determine who is available to cover an open shift or a replacement shift. * * * Upon arranging alternate shift coverage, the Scheduler/Dispatcher will notify management of the change in personnel assignments immediately as well as update schedules with the new shift assignment. Staffing requirements will be monitored in real-time to continually assess Faneuil's ability to provide staffing for each toll facility. Faneuil management teams will have access to past, present, future, and real-time schedules to ensure schedule adherence. The command center will serve as a resource for on-duty Department managers and Toll Supervisors to help ensure staffing meets coverage needs. In the event an emergency arises that requires additional staff coverage to report to work on a temporary basis, the Department can rely on the command center to initiate Faneuil's on-call emergency process and alert employees of the situation. These Workforce Management change processes and others will be reviewed and finalized with Department staff prior to incorporating the processes as Standard Operating Procedures. Faneuil's Staffing Plan, in addition, discussed its "time collection and tracking software," which would allow "Faneuil to track training activity and mark it as billable or non-billable."25 The following discussion regarding "overtime" was also included in Faneuil's Staffing Plan: Faneuil's workforce management system integrated with time collection software provides the ability to minimize and control overtime. The integrated systems ensure that overtime does not occur through automated overtime reporting. The automated tracking process identifies real-time overtime on a daily basis. Additionally, Faneuil sets parameters for hours worked to prohibit unauthorized overtime. Faneuil can anticipate overtime situations on a daily/weekly basis to prevent overtime at the scheduling level. However, in the event that overtime occurs, Faneuil will pay employees in accordance with the FLSA- mandated employment overtime laws.[26] Faneuil's Employee Pay Program, as delineated in its Technical Proposal, set minimum hourly rates for new, inexperienced employees that met or exceeded the minimum rates prescribed by ITN 007. Its program featured a "step and grade pay system" with two different grades (regular and senior) for each of the four contract positions, and three levels or steps for each grade. Faneuil described the system as follows in its Technical Proposal: . . . . Faneuil has structured a Step and Grade system that creates a process for supervisors and managers and illustrates to the employees opportunities for advancement. * * * All current employees will be designated into one of the grade and level sections as most appropriate for their current pay rate but in no case will they receive a lower rate of pay. New hires will start at Grade 1 Level 1 for their position and will move through the levels on average every two years. Note that these levels will increase over time as for example the Grade 1 Level 1 Toll Collector will increase by 3% annually as required in the ITN.[27] The Step and Grade system also brings peer recognition rewards as more experienced employees receive the designation of Senior. Eventually an employee will progress to the top of their range of pay. In this case, lump sum re-earnable bonuses can be given annually dependent on performance. The amount of this bonus would typically be the annualized value of a one-step increment in the range. The bonuses are subject to regular deductions. Among the recruitment strategies discussed in Faneuil's Technical Proposal was "Creative Network Recruiting," which it described as follows: Creative Network Recruiting Ongoing posting will be faxed or emailed to our community partners and posted in their locations. Our contact person will be knowledgeable about our open positions and explain to their members what we are looking for and refer candidates to our Human Resource professionals. Our community partners will mirror our community and assist with our diversity recruitment efforts. Community Partners include but are not limited to: Workforce Development Agencies, Agencies for Senior Citizens, Hispanic Human Resource Council, Haitian Center for Human Services, Chamber of Commerce, and Community Colleges.[28] The section of its Technical Proposal devoted to Recruitment, Hiring and Employment Matters also contained the following discussion regarding "Training" and "Inventory Management": Training It is Faneuil's and Impark's practice to provide thorough and on-going training in order to ensure a highly competent and motivated work force. The first step to achieve this goal is to solicit and incorporate the Department's training objectives into our training system. The specially designed training is implemented utilizing the following systematic approach: Orientation Aware of the potential anxiety associated with employees changing employment, [the] new employee orientation program meets two objectives: a) welcome employees to the Company and b) train[] employees to practice and procedures. Human Resources welcomes new employees with a small gift and a comprehensive overview of the company, its history, scope of services and presence across North America. Human Resources discuss and instruct new employee on all company policies and procedures, inform the new employee of job performance expectation, and criteria for performance appraisals, with a strong emphasis on the need for exceptional customer service and how the employee's job contributes to the overall performance of the organization.[29] Included in the orientation are the essential materials the employee needs to be successful from the start: his schedule, uniform and contact directory. On the Job Training Faneuil will utilize the expertise of our subcontractor Impark by working with [it] to assist the Department in improving the OJT program as needed. Impark has extensive experience developing on the job training programs for employees in the parking industry that will provide valuable in[sight] to the Department for future training needs. * * * Inventory Management During the transition Faneuil will request, from the current contractor, inventory data by employee as well as inventory on hand. This data will be entered in Faneuil's web- based Inventory Management System to track security cards,[30] uniforms and transponders. New employees will be provided with the Department's standard issue as appropriate. Faneuil's Inventory Management System will track all issuances, returns, certified for destruction, losses and purchases as well as inventory in stock.[31] The Inventory Management System will be remotely accessible by the Department's inventory auditors and reports can be created by them. Quarterly audits will be streamlined with the introduction of the system. Faneuil's Employee Benefits Program, as delineated in its Technical Proposal, included medical32 and dental benefits; "paid time off"; company holidays (which were the same as those listed in Subsection 10.3.4 of the Scope of Services); "double time" for holiday work; tuition reimbursement; life insurance; short-term disability insurance; paid bereavement leave; paid leave for jury duty; unpaid military leave; unpaid personal leave; unpaid leave to vote; unpaid leave to testify pursuant to a subpoena; day care benefits; Employee Assistance Program availability; and access to "[t]wo benefit coordinators . . . rotat[ing] between [Faneuil's] six regional offices and two satellite offices" who "w[ould] be available to enroll employees in benefit programs [and] answer employee questions." At the end of its discussion in its Technical Proposal of its Employee Benefits Program, Faneuil provided an Employee Benefits Summary. The medical benefits Faneuil proposed to offer were summarized in the Employee Benefits Summary as follows: Who is Eligible- Full time employees after 90 [] day[s] of employment.*[33] Description- Coinsurance: 90% in-network 70% Out-of-Network Preventative Care: 100% no deductible Health Reimbursement Acct: $500-1000- acct created by Faneuil for participating employees that pays first dollar coverage for medical expenses before any deductible. A percentage of unspent dollars at year end can be rolled over to the following years['] HRA Acct.[34] Deductible: $1000 after HRA Acct Who Pays- Faneuil pays 70% employee and 50% family rate. The dental benefits Faneuil proposed to offer were summarized in the Employees Benefits Summary as follows: Who is Eligible- Full time employees after 90 [] day[s] of employment.*[35] Description- In Network Deductible- None Out of Network Deductible- $50/$150 Plan Year Max- $1000 Cleaning Copayment- $10 Set Copayment Schedule for In Network Out [of] Network Copay- 100%/80%/50% Who Pays- Faneuil pays 70% employee and 50% Family rate.[36] The "paid time off" (PTO) benefits Faneuil proposed to offer were summarized in the Employee Benefits Summary as follows: Who is Eligible- Full time and eligible part-time employees after 90 [] days of employment.*[37] Description- PTO is an all-purpose time-off policy for eligible employees to use for vacation, personal business, and an employee's own illness or an illness of a family member. It combines traditional vacation and sick leave plans as well as most traditionally company-sponsored holidays into one flexible paid time-off policy. PTO accrues based on length of employment accordingly: -0-5 years- 21 days or 168 hours -5 to 10 years- 26 days or 200 hours -10 to 20 years- 31 days or 248 hours -20+ years- 36 days or 288 hours Employees accrue PTO each pay cycle Employees are strongly encouraged to use PTO within the year it is earned as Faneuil recognizes the need for employees to take time away from work to refresh themselves periodically. Employees can, however, carryover up to 25% of their earned and unused time to a separate "reserve bank" up to a maximum of 100 hours at any one time. Faneuil's PTO policy offers a unique feature in that it allows employees to "sell back" up to 30% of their accrued and unused time at the end on an employee's vacation year at a rate of 50% of the employee's average base pay. Employees would forfeit any accrued and unused time remaining. Employees must schedule PTO in accordance with the Company Attendance Policy. Who Pays- The Faneuil Group The tuition reimbursement benefits Faneuil proposed to offer were summarized in the Employee Benefits Summary as follows: Who is Eligible- Full time employees with 90 days of employment. Employee must start and complete course while retaining active full- time status. Description- - Reimbursement of percentage of allowable tuition costs for eligible, successfully completed courses as follows and not exceeding $2,500 per calendar year, per employee. -Individual courses that are part of an accredited degree program must be related to the employee's current job duties or a foreseeable future position with the organization in order to qualify for tuition assistance. The percentage of tuition reimbursement (50% or 100%) will be determined based on the relevance of the course to the employee's job. -Expenses will be reimbursed 100% up to $2,500 per year, per employee if the course is directly related to the employee's job. -Expenses will be reimbursed 50% up to $2,500 per year, per employee if the course is not directly related to the employee's job, but is related to a future job at Faneuil. Who Pays- The Faneuil Group Faneuil also described in its Technical Proposal a variety of Recognition and Retention Programs that it proposed to use as part of its effort to communicate effectively with contract employees. Although Faneuil omitted certain information from the various attachments that comprised the Qualifications Questionnaire (Form 1) it submitted as part of its reply, the information it did provide on these attachments, particularly when considered together with the other information contained elsewhere in its reply, was sufficient to show that it had the necessary qualifications and experience to provide the staffing services sought by the Department through ITN 007. A completed Attachment 1A (Organization - Prime) was submitted. On it, Faneuil indicated, among other things, that it had 12 years of experience as a prime contractor "in staffing the needs of its clients with [its] employees . . . as would be required by this project." Two completed Attachments 1B (Organization - Subcontractor), one for Impark and one for MCG, were submitted. A completed Attachment 1C (List of Completed Projects) was submitted. On it, Faneuil provided the requested information concerning two of its "completed projects": the "TennCare" project for the State of Tennessee; and the "Megacenter Operations" project for Verizon.38 On the Attachment 1D (List of Current Projects Under Contract) that Faneuil submitted, nine "current projects" were listed: "SunPass Contact Center and Support Services" project for the Department; "SunPass Secondary Call Center" project for the Department; "Medicaid Appeals" project for the State of Tennessee; "Customer Sales and Service" project for Network Solutions; "Bell Canada Holding 1B Sales" project for Bell Canada; "DSL, Long Distance and Future Sales" project for Sprint; "Private Education-Inbound" project for Collegiate Funding Services; "Private Education-Inbound" project for First Marblehead; and "ATX Tire Recall" project for Bridgestone/Firestone. Faneuil did not provide on Attachment 1D the "Location of Work" for the Sprint "DSL, Long Distance and Future Sales" project. Faneuil did not provide on Attachment 1D the requested "Prime or Subcontractor" information for the Sprint "DSL, Long Distance and Future Sales" project, the Collegiate Funding Services "Private Education-Inbound" project, the First Marblehead "Private Education-Inbound" project, or the Bridgestone/Firestone "ATX Tire Recall" project. Faneuil did not provide on Attachment 1D the "Number of Staff Provided" for the Network Solutions "Customer Sales and Service" project or the Sprint "DSL, Long Distance and Future Sales" project. Faneuil did not provide on Attachment 1D the "Contract Start Date" for the Network Solutions "Customer Sales and Service" project or the Sprint "DSL, Long Distance and Future Sales" project. Faneuil did not provide on Attachment 1D the "Scheduled Completion Date" for the Network Solutions "Customer Sales and Service" project, the Sprint "DSL, Long Distance and Future Sales" project, or the Bridgestone/Firestone "ATX Tire Recall" project. For none of the projects, except the Bridgestone/Firestone "ATX Tire Recall" project, did Faneuil provide on Attachment 1D the "Actual Completion Date."39 For none of the projects, except the State of Tennessee "Medicaid Appeals" project, did Faneuil provide on Attachment 1D the "Value of Work Performed."40 Except as noted above, Faneuil provided on Attachment 1D all of the information requested for the projects listed. A completed Attachment 1E (Required Background Information) was submitted. A completed Attachment 1F (Staffing - Program Director) was submitted. Ed Borchardt, Faneuil's Vice President for Service Delivery Support, was identified on the attachment as Faneuil's "planned Program Director,"41 who would devoting 100 percent of his time to the project.42 On the Attachment 1G (Staffing - Other Key Personnel) that Faneuil submitted, Faneuil identified the following individuals, in addition to Mr. Borchardt, as its "planned key personnel" "(as determined by [the vendor])": Tarsha Lehrr (of Faneuil), Francine Andrieshyn (of Faneuil), Cynthia Selley (of Faneuil), Gregg Hickman (of Faneuil), Mike McKeon (of Impark), Colleen Niese (of Impark), and Bruce Cousin(of Impark).43 On the attachment, Faneuil provided all of the information requested about these individuals except: it did not indicate the number of years Ms. Selley had been employed by Faneuil, nor whether she was also "currently employed by Proposer's subcontractor"; no details were given regarding "similar" projects Ms. Niese and Mr. Cousin had been assigned other than the name of their employer at the time (Impark); and the "similar" project assignments listed for Ms. Lehrr, Ms. Andrieshyn, Ms. Selley, Mr. Hickman, and Mr. McKeon did not reveal a "start . . . date[] of project assignment." As required by Attachment 1H (Proposer's Surety History), Faneuil appended to the attachment "a copy of a letter from a surety company [Acstar Insurance Company] that state[d] that [the] surety plan[ned] to bond [Faneuil] for this project." The Attachments 1I (Subcontractor Approval List) that Faneuil submitted indicated that that MCG and Impark would each be working as a subcontractor for Faneuil on the project for "less than 1%" of the "prime contract value." Appended to this attachment was Ms. Stemle's resume.44 On the completed Form 3 that it submitted, Faneuil indicated that it was not a Department-certified Minority Business Enterprise (MBE) or Disadvantaged Business Enterprise (DBE); that the "[e]xpected percentage of contract fees to be subcontracted to MBE/DBE's [was] .5%"; that MCG would be the "MBE/DBE" performing this subcontracting work; and that the "[t]ype of [w]ork" MCG would be performing was "management consulting." Other Replies Submitted The Department received five other timely submitted replies to ITN 007, in addition to Faneuil's. These replies were submitted by Barton, Serco, Ampco System Parking, EG&G Technical Services, and Central Parking System. One reply was submitted after the deadline and was rejected without further consideration because it was untimely. Evaluation, Scoring and Ranking of Replies An evaluation committee was formed to evaluate and score the Qualifications Questionnaires and Technical Proposals that had been submitted by Faneuil, Barton, Serco, Ampco System Parking, EG&G Technical Services, and Central Parking System as part of their replies to ITN 007. The RCS Deputy Director (Ms. Burger) and the six regional toll managers then under her supervision (Ms. Brantley, Ms. Cook, Mr. Spitzer, Mr. Abbadini, Ms. Greenawalt, and Mr. Sneed) were selected to serve on the evaluation committee.45 They were logical choices given their job responsibilities and experience with RCS. Regional toll managers46 had been on the evaluation committees for past procurements for RCS staffing services, and, more importantly, they had served as contract managers under the contracts (with Barton) resulting from those procurements, including the most recent contracts. Moreover, they would be deputy contract managers under the contract awarded pursuant to ITN 007, assisting the RCS Deputy Director (who would be the contract manager). In short, Ms. Burger, Ms. Brantley, Ms. Cook, Mr. Spitzer, Mr. Abbadini, Ms. Greenawalt, and Mr. Sneed were all capable of competently discharging their duties as members of the evaluation committee. Furthermore, there was no apparent impediment to them performing these duties in a fair and impartial manner. Members of the evaluation committee were given copies of ITN 007, as well as the replies that had been submitted (which, prior thereto, had not been reviewed for responsiveness by Mr. Lawson or anyone else in the Turnpike Enterprise's "contracts office"). Evaluation committee members were also provided with, for each reply, score sheets that Ms. Burger had prepared, with Ms. Brantley's assistance. These score sheets (which were not among the documents that comprised ITN 007) had spaces for the evaluators to write in their scores for each of the scoring categories (except "price proposal") specified in Special Condition 15 of ITN 00747 and for them to make written "comments" regarding their scoring. The score sheets also contained information and instructions designed to help the evaluators perform their evaluative functions. "Submittal Requirements" imposed by ITN 007 were listed by scoring category and evaluators were "refer[red]" to pertinent sections of the Scope of Services: Section 9.0, for the "Technical Proposal: Staffing Plan" scoring category; Section 8.0, for the "Technical Proposal: Recruitment, Hiring and Employment Matters" scoring category; Section 23.0, for the "Technical Proposal: Implementation Schedule and Plan" scoring category; and Section 10.0, for the "Technical Proposal: Employee Pay, Benefits, Recognition and Retention" scoring category. For each scoring category, the maximum number of points, as established by Special Condition 15 of ITN 007, was indicated, as were three different ranges of point awards: one for "Exceeds Requirements"; another for "Meets Requirements"; and a third for "Fails to Meet Requirements." The scoring sheets erroneously indicated that a completed "Corporate Resolution" (Form 5) was a "Submittal Requirement." Pursuant to Special Condition 25 of ITN 007, such a submission was actually "optional." Also, the scoring sheets should have referred the evaluators to Section 22.0 of the Scope Services for the "Technical Proposal: Implementation Schedule and Plan" scoring category.48 The evaluation committee members met as a group before beginning their evaluations. At the meeting, Ms. Burger went over the scoring sheets with the other committee members and answered their questions about the evaluation process. Among other things, she advised them to address to Mr. Lawson any questions they might have, when reviewing a particular reply, concerning the reply's responsiveness. The Department has a Procurement of Commodities and Contractual Services policy (Topic No. 375-040-020-j, effective July 21, 2005), Section 4.13.8 of which states the following regarding the ITN review process, including responsiveness determinations: ITNs: The procurement unit and/or Project Manager[49] shall review all information submitted to the Department to ensure that the vendors were responsive to the ITN and are responsible and qualified. Evaluations/reviews/negotiations should be conducted by at least three (3) persons for contracts of the threshold amount provided in Section 287.017, F.S., for Category Four or less. For contracts in excess of Category Four, the agency head or designee shall appoint at least three (3) persons to evaluate replies and at least three (3) persons to conduct negotiations (can be the same) who collectively have experience and knowledge in negotiating contracts, contract procurement, and the program areas and service requirements for which commodities or contractual services are sought. The authority to appoint these persons is delegated to Senior Management Level Directors and above, who may delegate such authority to other office heads in writing. All meetings of these persons to discuss or evaluate replies will be conducted as public meetings. The procurement unit is responsible for tabulating the scores and completing the Negotiation Tabulation, 375- 040-2C. Following the committee's pre-evaluation meeting, committee members went their separate ways and began their evaluations of the Qualifications Questionnaires and Technical Proposals submitted in response to ITN 007. They were given no formal training on how to analyze and compare employee benefit plans before commencing their evaluations. During the time that the evaluation committee members were conducting their evaluations, Mr. Lawson received questions from three committee members concerning the responsiveness of certain replies. In each instance, Mr. Lawson determined that the reply in question was "not nonresponsive," and he communicated his determination to the inquiring evaluator (but not to any of the other evaluators on the committee).50 Mr. Lawson did not tell any evaluator "how to score something." Ms. Brantley was one of the three evaluators who addressed a responsiveness question to Mr. Lawson. Her question was whether Barton's failure to include a completed "Corporate Resolution" (Form 5) rendered its reply nonresponsive, to which Mr. Lawson responded in the negative. Mr. Sneed made a similar inquiry and received a like response. Each member of the evaluation committee, independently and without collaboration or collusion with any other member of the committee, reviewed and evaluated the Qualifications Questionnaires and Technical Proposals and entered their scores on the score sheets they had been provided for that purpose. No member of the evaluation committee attempted to influence the evaluation of any other committee member in favor or against any vendor. Furthermore, there is no persuasive record evidence that anyone else, including Ms. Stemle, acted through channels not authorized by ITN 007 in an effort to affect the scoring of any evaluation committee member. ITN 007 granted the evaluators extremely broad discretion in determining how to score the Qualifications Questionnaires and Technical Proposals. Special Condition 15.1, which described the "Evaluation Process," merely identified the various scoring categories and the maximum number of points that could be awarded for each category. How the evaluators were to determine the number of points to award a vendor within the maximum allowable for each category was a matter left to the judgment of the each evaluator based on the evaluator's assessment of the relative importance of the different components of that category and how well the vendor addressed each of those components in its Qualifications Questionnaire and Technical Proposal. The evaluation committee members exercised the considerable discretion they were granted by ITN 007 in a good faith and consistent, "across-the-board" manner. They acted honestly and without any unfair bias, partiality, or favoritism, giving each of the Qualifications Questionnaires and Technical Proposals full and evenhanded consideration and scoring them, not in a manner designed to further their personal interests,51 but rather in accordance with the provisions of ITN 007, as they understood them. How Ms. Stemle had treated Ms. Burger, Ms. Brantley, Mr. Spitzer, Mr. Abbadini, Ms. Greenawalt, and Mr. Sneed when they were her subordinates played no role in the scores these five evaluators gave Faneuil (or any other vendor). Some of the evaluators compared services set forth in the Technical Proposals to those being provided under the requirements of the Department's existing contracts with Barton in order to help them gauge the quality and "pointworthiness" of the proposals.52 Doing so was neither unreasonable, nor prohibited by ITN 007.53 After completing their evaluations, the evaluators turned in their completed score sheets. The following are the scores that Faneuil, Barton, and Serco received from Ms. Burger: Faneuil Qualifications Questionnaire: 5 Technical Proposal: Administration and Management: 4 Staffing Plan: 18 Recruitment, Hiring and Employment Matters: 8 Implementation Schedule and Plan: 7 Employee Pay, Benefits, Recognition and Retention 23 TOTAL POINTS: 65 Barton Qualifications Questionnaire: 5 Technical Proposal: Administration and Management: 2 Staffing Plan: 7 Recruitment, Hiring and Employment Matters: 5 Implementation Schedule and Plan: Employee Pay, Benefits, 6 Recognition and Retention: 15[54] TOTAL POINTS: 40 Serco Qualifications Questionnaire: 5 Technical Proposal: Administration and Management: 5 Staffing Plan: 7 Recruitment, Hiring and Employment Matters: 5 Implementation Schedule and Plan: Employee Pay, Benefits, 9 Recognition and Retention: 16 TOTAL POINTS: 47 The following are the scores that Faneuil, Barton, and Serco received from Ms. Brantley: Faneuil Qualifications Questionnaire: 6 Technical Proposal: Administration and Management: 3 Staffing Plan: 19 Recruitment, Hiring and Employment Matters: 9 Implementation Schedule and Plan: 9 Employee Pay, Benefits, Recognition and Retention: 30 TOTAL POINTS: 76 Barton Qualifications Questionnaire: 3[55] Technical Proposal: Administration and Management: 4 Staffing Plan: 10 Recruitment, Hiring and Employment Matters: 5 Implementation Schedule and Plan: 8 Employee Pay, Benefits, Recognition and Retention: 20 TOTAL POINTS: 50 Serco Qualifications Questionnaire: 7 Technical Proposal: Administration and Management: 5 Staffing Plan: 10 Recruitment, Hiring and Employment Matters: 6 Implementation Schedule and Plan: 9 Employee Pay, Benefits, Recognition and Retention: 20 TOTAL POINTS: 57 The following are the scores that Faneuil, Barton, and Serco received from Ms. Cook (who was the only member of the evaluation committee who had never been a subordinate of Ms. Stemle's): Faneuil Qualifications Questionnaire: 6 Technical Proposal: Administration and Management: 4 Staffing Plan: 15 Recruitment, Hiring and Employment Matters: 7 Implementation Schedule and Plan: 7 Employee Pay, Benefits, Recognition and Retention: 33 TOTAL POINTS: 72[56] Barton Qualifications Questionnaire: 5 Technical Proposal: Administration and Management: 2 Staffing Plan: 11 Recruitment, Hiring and Employment Matters: 6 Implementation Schedule and Plan: Employee Pay, Benefits, 9 Recognition and Retention: 30 TOTAL POINTS: 63 Serco Qualifications Questionnaire: 7 Technical Proposal: Administration and Management: 4 Staffing Plan: 13 Recruitment, Hiring and Employment Matters: 7 Implementation Schedule and Plan: Employee Pay, Benefits, 10 Recognition and Retention: 21 TOTAL POINTS: 62 The following are the scores that Faneuil, Barton, and Serco received from Mr. Spitzer: Faneuil Qualifications Questionnaire: 5 Technical Proposal: Administration and Management: 4 Staffing Plan: 18 Recruitment, Hiring and Employment Matters: 8 Implementation Schedule and Plan: 9 Employee Pay, Benefits, Recognition and Retention: 24 TOTAL POINTS: 68 Barton Qualifications Questionnaire: 5 Technical Proposal: Administration and Management: 4 Staffing Plan: 13 Recruitment, Hiring and Employment Matters: 8 Implementation Schedule and Plan: 9 Employee Pay, Benefits, Recognition and Retention: 24 TOTAL POINTS: 63 Serco Qualifications Questionnaire: 7 Technical Proposal: Administration and Management: 4 Staffing Plan: 15 Recruitment, Hiring and Employment Matters: 6 Implementation Schedule and Plan: 9 Employee Pay, Benefits, Recognition and Retention: 21 TOTAL POINTS: 62 The following are the scores that Faneuil, Barton, and Serco received from Mr. Abbadini: Faneuil Qualifications Questionnaire: 6 Technical Proposal: Administration and Management: 4 Staffing Plan: 17 Recruitment, Hiring and Employment Matters: 10 Implementation Schedule and Plan: Employee Pay, Benefits, 8 Recognition and Retention: 32 TOTAL POINTS: 77 Barton Qualifications Questionnaire: 5 Technical Proposal: Administration and Management: 2 Staffing Plan: 14 Recruitment, Hiring and Employment Matters: 6 Implementation Schedule and Plan: 10 Employee Pay, Benefits, Recognition and Retention: 32 TOTAL POINTS: 69 Serco Qualifications Questionnaire: 8 Technical Proposal: Administration and Management: 4 Staffing Plan: 12 Recruitment, Hiring and Employment Matters: 7 Implementation Schedule and Plan: 7 Employee Pay, Benefits, Recognition and Retention: 30 TOTAL POINTS: 68 The following are the scores that Faneuil, Barton, and Serco received from Ms. Greenawalt: Faneuil Qualifications Questionnaire: 6 Technical Proposal: Administration and Management: 3 Staffing Plan: 12 Recruitment, Hiring and Employment Matters: 6 Implementation Schedule and Plan: Employee Pay, Benefits, 6 Recognition and Retention: 11 TOTAL POINTS: 44 Barton Qualifications Questionnaire: 4 Technical Proposal: Administration and Management: 3 Staffing Plan: 9 Recruitment, Hiring and Employment Matters: 6 Implementation Schedule and Plan: 6 Employee Pay, Benefits, Recognition and Retention: 22 TOTAL POINTS: 50 Serco Qualifications Questionnaire: 6 Technical Proposal: Administration and Management: 4 Staffing Plan: 9 Recruitment, Hiring and Employment Matters: 6 Implementation Schedule and Plan: 7 Employee Pay, Benefits, Recognition and Retention: 20 TOTAL POINTS: 52 The following are the scores that Faneuil, Barton, and Serco received from Mr. Sneed: Faneuil Qualifications Questionnaire: 5 Technical Proposal: Administration and Management: 3 Staffing Plan: 11 Recruitment, Hiring and Employment Matters: 6 Implementation Schedule and Plan: 6 Employee Pay, Benefits, Recognition and Retention: 17 TOTAL POINTS: 48 Barton Qualifications Questionnaire: 6 Technical Proposal: Administration and Management: 3 Staffing Plan: 12 Recruitment, Hiring and Employment Matters: 6 Implementation Schedule and Plan: 6 Employee Pay, Benefits, Recognition and Retention: 19[57] TOTAL POINTS: 52[58] Serco Qualifications Questionnaire: 5 Technical Proposal: Administration and Management: 3 Staffing Plan: 11 Recruitment, Hiring and Employment Matters: 6 Implementation Schedule and Plan: 6 Employee Pay, Benefits, Recognition and Retention: 18 TOTAL POINTS: 49 The total number of points each vendor received from the seven evaluators was divided by seven to obtain a "Qualification & Technical/Average Score" for that vendor. Faneuil's "Qualification & Technical/Average Score" was 64.29. Barton's "Qualification & Technical/Average Score" was 55.29 Serco's "Qualification & Technical/Average Score" was 56.71. A "price proposal evaluation" was performed on the price proposals submitted, in accordance with the requirements of Special Condition 15.2 of ITN 007, to obtain a "Price Score" for each vendor. Faneuil's "Price Score" was 8.98. Adding this "price Score" to its "Qualification & Technical/Average Score" gave it a "Total Score" of 73.27, which was the highest "Total Score" received by any vendor. Barton's "Price Score" was 9.04. Adding this "price Score" to its "Qualification & Technical/Average Score" gave it a "Total Score" of 64.33, which was the third highest "Total Score" received by any vendor. Serco's "Price Score" was 9.34. Adding this "Price Score" to its "Qualification & Technical/Average Score" gave it a "Total Score" of 66.05, which was the second highest "Total Score" received by any vendor.59 The awards committee met on March 23, 2006, and publicly announced the scores that the vendors had received and ranked the vendors based on their "Total Scores" as follows: 1: Faneuil; 2: Serco; 3: Barton; 4: EG&G Technical Services; 5: Central Parking System; and 6: Ampco System Parking. These rankings were set forth on a "Posting Tabulation," which also indicated: The Department will commence negotiations with the firm ranked number one by the Selection Committee. Should the Department be unable to negotiate a satisfactory contract with the number one ranked firm, negotiations with the firm shall be suspended. The Department may then undertake negotiations with the firm ranked number two by the Selection Committee. Failing accord with the firm ranked number two, the Department may continue the negotiations process in the order of the ranking until the Department is able to negotiate a satisfactory contract. The Department reserves the option to resume negotiations that were previously suspended with any of the shortlisted vendors; and further indicated: Failure to file a protest within the time prescribed in Section 120.52(3), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Failure to file the proper bond at the time of filing the formal protest will result in a denial of the protest. The "Posting Tabulation" was posted from March 23, 2006, through March 28, 2006. Petitioners' Protest Barton timely protested the decision announced in the "Posting Tabulation."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order rejecting Barton's protest. DONE AND ENTERED this 20th day of July, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 20th day of July, 2006.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Edith Rogers, was employed as a data operator with the Indian River County Health Unit, a sub-unit of the Department. She was hired by the Department on January 4, 1988 and began working for Gerry L. Waite as a data operator in October, 1988. When employees are hired by the Health Unit, they are briefed on the unit's leave policies and procedures and are given a copy of the unit's personnel policies for which each employee is obligated to sign a receipt. That portion of the handbook dealing with absences provides that when possible, employees requesting to be absent should request authorization from their supervisor in advance. If prior application is not possible, and absence is necessary, the employee is to call in at the earliest possible moment to let the supervisor know what is going on and approximately how long the employee will be absent. Respondent has complied with these policies on several occasions in the past. On July 26, 1991, a Friday, the Respondent was at her place of employment and there was no indication given that she was experiencing any difficulty. The following Monday, however, July 29, 1991, she did not report for work and Ms. Waite, her supervisor, knew from an article which had appeared in the prior day's newspaper, that Respondent had been arrested. Respondent did not call in on that day, nor did anyone else call in for her. Respondent remained in jail until August 19, 1991. Subsequent to Monday, July 29, 1991, Ms. Waite called the jail twice a week to check on the Respondent's statue. Each time the Respondent was there. At no time during that period did Respondent, or anyone else on her behalf, call her duty section and speak with her supervisor regarding the basis for her absence, nor did Respondent write a letter to explain, though she was able to do so. Mrs. Rogers did not come to work on August 20, 1991, a Tuesday and the day after her release from jail, nor did she come in on August 21 or 22, 1991, the following Wednesday and Thursday. There was no contact from the Respondent, and her absence subsequent to her release had not been authorized. Ms. Waite is satisfied that Respondent knew the abandonment provisions and the potential results of failing to appear for several days without authority since, in 1984, a similar action was taken regarding her employment with the Department in St. Lucie County, and she was deemed to have abandoned her position at that time. Respondent was seen in Walmart by another Department employee on the morning of Tuesday, August 20, 1991. At that time she was buying clothes for her 13 year old son preparatory to getting him enrolled in middle school. She admits she did not call her office on that day, however, on Wednesday, August 21, 1991, after arranging to have the power to her residence turned on and taking care of some other personal affairs, she called a friend of hers, Mrs. Brenda Troutman, who works for the Health Unit in its vital statistics division, and explained where she was. Ms. Troutman, however, was not working in Respondent's division nor was she in any supervisory capacity over her. Though Ms. Rogers claims she asked Ms. Troutman to notify Ms. Waite of her status for her, Ms. Troutman declined to do so, suggesting Ms. Rogers make the contact herself. On Thursday, August 22, 1991, Respondent did call her office and asked to speak with Ms. Waite. Unfortunately, she called at lunchtime, sometime between 1 and 1:15 PM, and neither Ms. Waite, nor anyone else in authority was there to speak with her. Respondent admits she did not leave her name at the time of that call. The evidence is clear that at no time, from the time Ms. Rogers was placed in jail in July until Ms. Waite spoke with her on the evening of Friday, August 23, 1991, did Respondent, or anyone on her behalf, make any sincere effort to contact the Unit to explain, officially, to anyone in authority where she was, the reason for her absence, and when she would be back. At that time, Ms. Rogers advised Ms. Waite that she would be back to work on August 26, 1991, but Ms. Waite told her then it was too late as she had already been processed for abandonment of her position. Ms. Waite is quite certain that Ms. Rogers is and was aware of the procedures to be used when an absence is anticipated or when it was unavoidable, because Respondent has taken advantage of these procedures and utilized them several times in the past during the period she has been working for the Department. According to Ms. Register, the employee specialist with the Department's District office, there is a difference between an abandonment action and a termination for cause. The latter is a disciplinary action and is appealable through the Public Employees Relations Commission or through union grievance procedures. The abandonment is a determination made after an unauthorized absence with a provision for review, and is more a constructive action determined on the basis of the employee's failure to appear. Respondent is quite insistent that she did not intend to abandon her position and intended to come back to work the Monday following her release, (August 26, 1991). She claims one of the reasons for her delay in going back to the office was her embarrassment in going back and facing her coworkers after having been in jail, but she contends that at all times she wanted her job back. She differentiates her situation in this case from that in the 1984 abandonment action. Then, she admits, she walked away from her job because of her addiction to cocaine. Here, she claims, this was not her intent, and she fully intended to go back to work just as soon as she was able to do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered finding that Respondent, Edith Rogers, abandoned her position with the Indian River County Health Unit and resigned from the Career Service. RECOMMENDED in Tallahassee, Florida this 24th day of January, 1992. ARNOLD H. POLLOCK 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 24th day of January, 1992. COPIES FURNISHED: Karen M. Miller, Esquire DHRS, District 9 111 Georgia Avenue West Palm Beach, Florida 33401 Charles A. Sullivan, Jr., Esquire Post Office Box 2620 Vero Beach, Florida 32961-2620 John Slye General Counsel DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
