The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish the Arborwood Community Development District (Petition), dated November 17, 2003. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by FLWAC.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This case involves a claim by petitioner, Robert Jones (Jones or petitioner), that he was denied employment by respondent, Department of Labor and Employment Security (DLES), on account of his handicap. It is undisputed that Jones has diabetes, he is insulin-dependent, and he has had at least one toe amputated because of the disability. As such, he does not enjoy, in some measure, the full and normal use of his physical facilities, and he is accordingly deemed to be a handicapped person within the meaning of the law. The parties also agree that DLES is an employer subject to the Florida Human Rights Act of 1977, as amended, which governs this dispute. DLES denies it acted in a discriminatory manner and contends generally that (a) the handicap played no role in its employment decision since it was unaware that Jones was a disabled person when the employment decision was made, and (b) a more qualified person was hired for both positions sought by Jones. A preliminary investigation by the Florida Commission on Human Relations (Commission) found reasonable cause to believe that an unlawful employment practice had occurred. Since October 3, 1982, petitioner has been employed as an investigator specialist II at the Commission. He also worked for DLES from May 1980 until October 1981, and at the Florida State Employment Service from October 1981 until April 1982. Prior to working with the state, Jones served in the U. S. Marine Corps from which he was honorably discharged with a medical disability in 1977. He is a graduate of Florida State University having received a degree in political science in December 1985. Between 1982 and 1991, respondent made application for employment at DLES on at least four or five occasions but was never hired. On July 16, 1991, he wrote a letter to the agency head, then Frank Scruggs, complaining about his inability to get a job, advising that he was a disabled veteran, and asking for a "fair shake" on his applications. Later that year, he applied for the positions of management review specialist and senior management analyst II. Although he was interviewed for one of the two positions, he was not selected for either job. In his application filed with DLES, Jones described his health as "excellent." Attached to his application papers was a certification from the Veterans Administration indicating he had a service-related disability rated at 30 percent or more. Also, he included a handwritten statement that he was a "veteran with a compensable service-connected disability." There was no indication, however, as to the nature of the disability. After receiving two rejection letters from DLES on February 10, 1992, regarding his job application, Jones filed a complaint of discrimination with the Commission on July 23, 1992, alleging he had "been discriminated against because of (his) Handicap, Diabetes." He later filed a petition for relief in which he charged that DLES' employment decision was based not only on his handicap, but also on account of his "gender, race, veteran status or any other unlawful reason." As to the grounds raised after the Commission had concluded its initial investigation, they have been disregarded as being untimely. Senior Management Analyst II Position On January 9, 1992, respondent published a job opportunity announcement for the position of senior management analyst II in the office of civil rights and minority affairs. The position had been created to assist the director of that office, Deidre Kyle, in her day-to-day responsibilities. Kyle was also the individual responsible for the hiring decision. The advertised position required as minimum qualifications that the applicant have "a bachelor's degree and four years of professional experience in systems administrative work, employment and training, employment security, grants management, education, vocational counseling, vocational placement, occupational analysis, employment selection and referral activities, program planning, program evaluation or program monitoring." Petitioner met the minimum qualifications. Besides Jones, approximately fifty persons applied for the position of senior management analyst II, including Carolyn W. Franklin, a non-handicapped African-American female then working under Kyle's supervision and filling an Other Personal Services (OPS) slot as a civil rights specialist III in Kyle's office since September 1991. Franklin had previously worked for over twelve years in the Governor's Office, principally as a governmental analyst in the Citizens Assistance Office, and mostly under the direct supervision of Shirley Gooding, who later served as inspector general, and then assistant secretary, and finally as secretary of DLES in July 1992. She had also served as the affirmative action officer for the Governor's Office for four years. Except for these latter duties, Franklin had no experience in equal employment or civil rights. Out of the fifty applicants, only four were selected for an interview with Kyle, and none was handicapped. Jones was not selected for an interview. In choosing the top candidates for an interview, Kyle relied upon the duties and responsibilities contained in the career service system position description as well as certain review criteria which she had prepared. The review criteria were: (a) extensive knowledge of equal employment and affirmative action rules and regulations, (b) thorough knowledge of Title VII of the Civil Rights Act, (c) knowledge of the Americans with Disabilities Act, (d) experience in conducting federal program compliance reviews, (e) familiarity with American Standards Institute standards, (f) effective oral and written communication skills, and (g) personal computer experience (Word Perfect and/or Lotus Preferred). The qualifications of the three individuals other than Franklin selected for the final interview are not of record. Also, the record does not show how Jones' qualifications compared with those of the final candidates (other than Franklin). Thus, there is no way to determine if Jones was more or less qualified than the others on the final list, or whether he ranked fifth or even fiftieth out of all of the candidates filing applications. Kyle made no effort to determine whether any of the applicants, including petitioner, had a handicap. Therefore, when she made the decision to reject Jones and the other forty-five candidates through the initial screening process, she was unaware of the fact that he had diabetes. Indeed, she did not learn of this fact until Jones filed his complaint. The position sought by Jones was ultimately filled by Franklin. In selecting Franklin, Kyle noted that Franklin had served in an OPS position with "similar" job responsibilities, she had worked under Kyle's direct supervision for the preceding four months, and she had working knowledge of the duties and responsibilities of the position "that would allow her to begin work immediately." Contrary to petitioner's assertion, Kyle was not told by her superiors to hire Franklin. She concedes, however, that there were "suggestions" by then inspector general Gooding to hire Franklin, a former colleague of Gooding at the Governor's Office. In considering DLES' assertion that the reason for hiring Franklin was that she was the most qualified person, it is noted that earlier that year Franklin had applied for a lower-graded career service position in Kyle's office but was rejected because Kyle was unimpressed with Franklin's "communicative skills." After her rejection, Gooding "suggested" that Kyle hire Franklin for the OPS slot, a suggestion which Kyle followed. Based on these facts, it may be reasonably inferred that Kyle's true motive in hiring Franklin was to satisfy, albeit reluctantly, the wishes of her superior, Gooding, who wanted to place her friend in the agency, rather than hiring the best qualified person for the job. While friendship or even cronyism was the decisive factor in Franklin getting the job, there is insufficient evidence, either direct or circumstantial, that would support an inference that petitioner's handicap was the reason why he was not selected. Indeed, there is no evidence to support a finding that Jones would even have made the short list had Franklin not applied for the job, or would have been considered if Kyle had rejected the suggestions of her superior. Therefore, while the final employment decision may not have been fair, it is found that there was no discriminatory animus in DLES' employment decision to reject Jones. Management Review Specialist Positions On October 17, 1991, respondent published a job opportunity announcement for two management review specialists (position numbers 1158 and 5420) in its office of inspector general, then run by inspector general Gooding. At that time, the office had two sections: management review and investigations. When the announcement was published, the office was unsure whether both positions would be used for management reviews or whether one would be management review and the other for investigations. The minimum qualifications for the positions were a bachelor's degree and 4 years of professional experience in systems analysis, management analysis, program planning, program research, program evaluation, engineering or administrative work. Petitioner met the minimum qualification requirements. The management review slot required the successful applicant to be experienced in management reviews, which are very comprehensive and involve an evaluation of the following management functions: planning, organization, staffing, directing and controlling. The specialist is also required to prepare rather comprehensive reports. On the other hand, the specialist in the investigative section performs more traditional investigative duties with a much more narrow focus than management review. The record shows that Jones was not fully qualified to fill a slot in the management section since his main experience had been investigating discrimination complaints for the Commission for the preceding ten years. Jones and some ninety other persons filed applications for these positions. A preliminary screening process of all applications was conducted by Kitty J. Convertino, who headed the management review section, and Gary Sanford, who headed the investigation section. Because of his investigative experience with the Commission, Jones was placed on the list of some fifteen to seventeen persons to be initially interviewed. It was contemplated that after these initial interviews were conducted, a short list of five candidates would be picked from those interviewed, and they would be invited back for a second interview. Although Convertino ostensibly had authority to make a hiring decision, the final say-so rested with her superior, inspector general Gooding. During the initial interview, each candidate was asked "interview questions" from a list prepared by Convertino. Among other subjects, the applicants were asked about their computer skills since specialists were required to prepare much of their own work. Although Jones says he uses a microcomputer in his present work, his computer skills did not meet Convertino's expectations. At the conclusion of the interview, Jones was asked to provide a writing sample, and he later funished a copy of an investigative report he had written for the Commission in 1986. This writing sample reinforced Convertino's opinion that Jones was more qualified for the investigation section than the management review section. During the selection process, a member of Convertino's management review team was transferred from her team to Sanford's investigation team. When this occurred, the management review specialist vacancy on Sanford's investigation team was eliminated leaving both vacancies in the management review section. The decision to transfer the position was made by inspector general Gooding. Because no position was open in the investigation section, and the qualifications of the chosen candidates for the management section exceeded those of petitioner, Jones was not invited back for a second interview. There is no evidence to support a finding that the transfer was made to prevent petitioner from being considered for the vacant position in the investigative section. Among the candidates for the two management review positions was Jane Steele, a former collegue of Gooding at the Governor's Office, who had performed administrative work for the City of Altamonte Springs for some eighteen months prior to seeking employment with DLES, and who had prior stints with the Department of Insurance, Department of Transportation, and Governor's Office of Planning and Budgeting. When Steele's qualifications did not initially comply with the job description for position 5920, the job description was rewritten midway through the evaluation process so that Steele could satisfy the qualifications. Whether this change was made at the behest of Gooding is not of record. In any event, there is no evidence to show that this manipulation in the qualification process was for an unlawful discriminatory purpose. Steele was ultimately selected to fill one of the two management review specialist positions. According to Convertino, Steele was selected because of her prior experience in performing compliance audits for a state agency and writing audit reports. In addition, she was computer literate, was a "good" writer, having published several articles, and had a masters degree in public administration. Although Steele once worked with Gooding at the Governor's Office, there is no evidence that Convertino consulted with Gooding prior to making her employment decision. Indeed, Convertino flatly denied that any conversations took place. Ronald J. Rigby, an African-American who also has diabetes and is hearing impaired, was selected for position 1158. He had previously performed compliance reviews for DLES in the Job Training Partnership Act program, which experience Convertino believed would be compatible with the work required of position 1158. Although Rigby was placed under investigation by the State Controller in mid-January 1992 for "wage claim discrepancies," and this prevented him from assuming the job for several months, the matter was resolved sometime after April 10, 1992, and he was then allowed to report to work. When the decision to hire Rigby was made, Convertino did not know that Rigby had diabetes, although she knew that he was hearing impaired. Jones says his medical condition was discussed during the interview process, and he advised the interviewers that the disability was controlled by medication. Neither Convertino nor Sanford recalled any such discussion, and Convertino says she was unware of Jones' condition until the complaint was filed. In any event, there is no evidence, either direct or circumstantial, that would support a finding that Jones' handicap played any part in the employment decision. While the investigative slot may have been filled through a transfer on account of friendship or cronyism, that decision was not predicated on a desire to keep a handicapped person from being considered for the job. Moreover, the evidence shows that both Steele and Rigby had more experience in performing compliance audits than did Jones, and thus they were the more qualified individuals to fill those positions. Miscellaneous Employment records received in evidence show that petitioner's annual pay was $22,000 at the time his application was filed in October 1991. His salary since that time is not of record. The position of management review specialist paid in the range of $2,407.49 to $4,056.63 per month while the position of senior management analyst II paid in the range of $2,740.51 to $4,653.39 per month. Respondent apparently did not document, nor could it produce, the written basis for its hiring decisions, as required by its own personnel manual. Even so, this lack of documentation is insufficient to raise an inference that an unlawful discriminatory animus motivated DLES in its employment decisions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 20th day of February, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 20th day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2754 Petitioner: 1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 2. 4. Rejected as being unnecessary. 5. Partially accepted in finding of fact 19. 6. Rejected as being unnecessary. 7. Partially accepted in finding of fact 3. 8. Partially accepted in finding of fact 4. 9. Partially accepted in finding of fact 3. 10. Rejected as being unnecessary. 11. Rejected as being cumulative. 12. Rejected as being unnecessary. 13. Partially accepted in finding of fact 4. 14-16. Partially accepted in finding of fact 16. 17-19. Partially accepted in finding of fact 18. 20-21. Partially accepted in finding of fact 16. 22. Partially accepted in finding of fact 18. 23-24. Partially accepted in finding of fact 4. 25. Rejected as being unnecessary. 26. Partially accepted in finding of fact 18. 27-28. Partially accepted in finding of fact 24. 29. Partially accepted in finding of fact 19. 30-34. Partially accepted in finding of fact 20. 35-39. Partially accepted in finding of fact 21. 40. Rejected as being unnecessary. 41-44. Partially accepted in finding of fact 21. 45. Partially accepted in finding of fact 22. 46. Partially accepted in finding of fact 23. 47. Rejected as being unnecessary. 48-55. Partially accepted in finding of fact 23. 56. Partially accepted in finding of fact 18. 57-59. Partially accepted in finding of fact 6. 60-61. Partially accepted in finding of fact 6. 62-63. Rejected as being unnecessary. 64-67. Partially accepted in finding of fact 9. 68. Partially accepted in finding of fact 7. 69. Rejected as being unnecessary. 70. Partially accepted in finding of fact 4. 71. Rejected as being unnecessary. 72-73. Partially accepted in finding of fact 8. 74-77. Partially accepted in finding of fact 14. 78. Partially accepted in finding of fact 13. 79-81. Partially accepted in finding of fact 9. 82. Partially accepted in finding of fact 13. 83-84. Partially accepted in finding of fact 12. 85-87. Partially accepted in finding of fact 8. 88. Partially accepted in finding of fact 14. 89-90. Partially accepted in finding of fact 5. 91-92. Covered in preliminary statement. Rejected as being unnecessary. Covered in preliminary statement. Rejected as being unnecessary. Rejected as being contrary to the evidence. 97-98. Partially accepted in finding of fact 26. Respondent: Partially accepted in finding of fact 16. Partially accepted in finding of fact 18. 3-4. Partially accepted in finding of fact 4. 5-7. Partially accepted in findings of fact 18 and 19. Partially accepted in finding of fact 19. Partially accepted in finding of fact 20. Partially accepted in finding of fact 22. Partially accepted in finding of fact 23. Partially accepted in finding of fact 6. Partially accepted in finding of fact 8. 14-15. Partially accepted in finding of fact 9. Partially accepted in finding of fact 12. Partially accepted in finding of fact 11. Partially accepted in finding of fact 5. Rejected as being unnecessary. Partially accepted in finding of fact 5. Partially accepted in finding of fact 1. Note - Where a proposed finding has been partially accepted, the unused part has been rejected as being unnecessary to reach a resolution of the issues, irrelevant, cumulative, subordinate, not supported by the more credible and persuasive evidence, or a conclusion of law. COPIES FURNISHED: Bruce A. Minnick, Esquire Pamela H. Page, Esquire Post Office Box 11127 Tallahassee, FL 32302-3127 Edward A. Dion, Esquire Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-2152 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32303-4149 Dana A. Baird, Esquire Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32303-4149
Findings Of Fact On September 23, 1986 respondent, The School Board of Broward County (Board), through its purchasing department, issued a notice of release of Request for Proposal (RFP) 87-269A. This notice was sent to three hundred seventy-seven vendors and contained instructions on how to receive a copy of the RFP. Ultimately, some forty vendors did so. The RFP invited vendors to submit bids for vision care for covered employees of the Board for the period from March 1, 1987 through December 31, 1988. Such bids were to be submitted to the Board on or before 2:00 p.m. on October 29, 1986. In general terms, and as stated in section 1.1 of the RFP, the objective of the proposal gas to "solicit proposals for a closed panel vision plan and an indemnity vision plan." According to section 2.0 of the RFP, the Board desired the following services: The School Board of Broward County wishes to offer its employee [sic] (and their eligible dependent family members) in add- ition to its present closed panel vision plan, an indemnity vision plan. This RFP is soliciting quotations for two types of plans: The currently offered closed panel type with the current level of benefits shown in Exhibit #1, entitled "FEA/United Vision Care Plan" and A "freedom of choice" indemnity arrangement as an alternative arrangement to the closed panel, as all other SBBC health benefits also offer a choice between self- selected providers or closed panels. For the sane premiums as the current closed panel plan, providers are requested to quote their plan benefits, following the outline provided, in Exhibit #1. Any unusual and/or special benefits are encouraged and should be included in your offering. The availability of services and supplies for a population distributed throughout Broward County, North Dade County, and South Palm Beach County, Florida, will be very important. School Board employees need services available to them after 3:00 p.m. daily (Monday through Friday) and also weekend and evening hours (at least one or two nights a week) if possible, so as not to interfere with their school schedules and responsibilities. Providers must submit along with their proposals a list of current clients and a list of names and locations of participating optometrists. Section 1.11 of the RFP is also relevant and provided that "the School Board of Broward County, Florida, expressly reserves the right to waive any formality in any proposal and to reject any and all proposals." Only three bids were filed in response to RFP 87-269A. Of those, only two were complete. Those were by petitioner, Vision Care, Inc., d/b/a Vision Service Plan (Vision Care or petitioner), and intervenor-respondent, FEA/United Vision Care Plan (FEA/United or intervenor). Intervenor is the existing supplier of vision care to the covered employees of the Board. Until this dispute is resolved, it continues to provide vision care services for the Board's employees. Under intervenor's existing contract, employees are referred to a closed plan of specific doctors. This means they have no option to see any physician except those listed on the "panel." The new proposal requested bidders to provide not only a closed panel plan but to also provide for a freedom of choice plan whereby employees could utilize a doctor of their own choice (not on the panel) and receive indemnification for all or a part of the costs. Bidders were also instructed to use the premium charged under intervenor's existing contract ($3.00 per employee per month). Therefore, the RFP called for a $3.00 per month premium and a composite closed plan/freedom of choice proposal. Prior to bids being submitted, a "bidder's conference" was held on October 8, 1986 at which time potential bidders asked questions of Board representatives concerning the PFP. Representatives of only four potential bidders attended the conference. Among other things, a representative of intervenor asked the following questions: Mr. Brown: Regarding 2.0, I have four questions. Can a provider quote both plans, closed panel and indemnity, in one composite plan? Question two: Must a provider quote both plans, closed panel and indemnity, in one composite plan? Question three: Can a provider quote only the indemnity selection with the indemnity play and, four, can a provider quote only the closed panel plan? Mr. Thomas (Board director of fringe benefits): Thank you. Good questions. I think they will serve to clarify that particular section. Later on, the Board's purchasing department prepared written answers to all questions asked at the conference. With regard to the four questions asked by Brown, the following answers were given: Q. Must a provider quote both plans, closed panel and indemnity, in one composite plan? A. A provider may quote both plans in a composite plan or quote them separately. Q. May a provider quote both a closed plan and indemnity plan. A. Yes, they may. Q. Must a provider quote both plans, closed panel and indemnity, in one composite plan? A. A provider may quote both plans in a composite plan or quote them separately. Q. May a provider quote just one plan or the other, closed panel and/or indemnity? A. Yes, a provider may select the way he wants to submit his quotation and may quote either a closed panel or an indemnity plan, or both. The above questions and answers, and others, were reduced to writing, incorporated as an Addendum No. 1 to the RFP, and mailed to all bidders on October 17, 1986. Other than the inquiry made above, there is no evidence that any bidder asked for clarification regarding the specifications in RFP 87-269A. According to sections 1.5 and 1.6 of the RFP, written questions or objections relating to the specifications were to be filed by October 3, 1986. None were filed. The Board engaged the services of a consulting firm, Fringe Benefit Consultants, Inc. (FBC), to assist it in reviewing the bids and to make a recommendation. In addition, a vision care insurance committee made up of various Board employees was created to consider FBC's recommendation and to advise the Board. On January 8, 1987 FBC and the committee met to evaluate the two bids. After a "blind" evaluation, the committee selected petitioner by a 3- 0 vote. This advice was conveyed to the superintendent by memorandum dated January 9, 1987. The superintendent concurred with this recommendation and recommended that petitioner's bid in the amount of $924,000 be accepted at the next Board meeting. On January 22, 1987 the Board's purchasing agent prepared and mailed to intervenor a "notice of intent to award proposal" to petitioner and giving intervenor a 72-hour window after receipt of the notice in which to file a protest. The next day intervenor submitted its notice of protest. A formal protest was later filed on January 28, 1987. The protest, which has been received in evidence as part of joint exhibit 10, suggested, inter alia, that section 2.0 of the RFP called for bidders to submit three types of plans, and stated that intervenor had submitted six proposals (A through E) in order to meet that requirement. On February 3, 1987 FBC sent the Board purchasing agent a letter stating in part: We have reviewed FEA/United Vision Care's protest letter dated January 28, 1987, and we recommend that all bids be rejected and the vision plan be rebid. We believe it was not made sufficiently clear to all bidders that a single $3.00 quotation level of benefits was being solicited for a composite closed panel/indemnity option vision plan. The same date the acting superintendent (Dorothy Orr) prepared the following written recommendation: It is my recommendation that the Superintendent's recommendation in the matter of the award of the Vision-Care contract be changed and that the new recommendation be to reject all bids. If this suggestion is accepted, it is further recommended that the vision-care plan be rebid. This action is predicated in part on the recommendations of our consultants, Fringe Benefit Consultants, Inc., who have advised us as follows: "We believe it was not made sufficiently clear to all bidders that a single $3.00 quotation level of benefits was being solicited for a composite closed panel/ indemnity option vision plan. In further reviewing the section of the vision-care RFP pertaining to the vision services sought, I believe that there is evidence to suggest that sufficient ambi- guity exists in the wording which could lead a Proposer to construe that the School Board was seeking more than one plan containing a closed panel and an indemnity option. Our consultants, acting in good faith, evaluated the responses from two finalists and limited their evaluation to quotations which met the one plan with closed panel and indemnity criteria only. It has been brought to our attention through the filing of a formal protest by FEA United Vision, the present contract holder, that they did not understand that they were being asked to bid on a single plan. Their objection specifies: "the first three paragraphs of Section 2.0 clearly indicate that The School Board of Broward County is requesting proposals for three types of plans." Fringe Benefit Consultants, author of the RFP, agrees with this contention. In the considered opinion of both, Fringe Benefit Consultants and myself, it appears that there is sufficient merit in the challenge to warrant a change in the Superintendent's recommendation. On February 5, 1987 the Board met and decided that "all bids received be rejected and that the item be re-bid." This action was conveyed to petitioner the same date in a letter prepared by the Board's purchasing agent. Petitioner thereafter filed its notice of protest on February 6 and its formal protest on February 11, 1987. In response to petitioner's protest a second Board meeting was conducted on February 18, 1987 at which time both petitioner and intervenor were allowed to state their positions and answer any Board questions. In addition, two FBC representatives and a Board employee voiced their reasons for recommending that the Board find the RFP contained an ambiguity. At the conclusion of the meeting, the Board voted 4-2 to reject all bids and rebid the matter. Proposed agency action in the form of a Final Order was thereafter entered on March 17, 1987. The order provided in relevant part: THE SCHOOL BOARD finds that the ambiguity existed in the bid specifications and that said ambiguity was supported on Page 3 of 8, Question 3 in the Bidders' Conference, as well as Pages 11 and 12 on the R.F.P. At the Board meeting on February 18, 1987 an FBC representative (George Corkun) explained that the above ambiguity stemmed from an answer given to a question raised by intervenor's representative at the bidders' conference on October 8, 1986. The question and answer, which are referred to as "Question 3" in the Board's Final Order, were as follows: Q. Must a provider quote both plans, closed panel and indemnity, in one composite plan? A. A provider may quote both plans in a composite plan or quote them separately. According to Corkum, he was concerned that a protest had been filed and the "appeals process" could take as long as a year to be resolved. He felt that in view of the answer to question three, "somebody could have felt that there was an ambiguity there," and that with "the remote possibility of an ambiguity," it was best to rebid the matter. Another FBC representative (Dr. Benjamin Stevenson) stated that the specifications called for a $3.00 per month premium and a composite closed panel/freedom of choice of plan, and alluded to a perceived ambiguity since five of intervenor's six proposals did not meet both requirements. Finally, a Board employee (Richard Thomas) pointed out that intervenor's proposal contained "six different bids" (proposals A-E) when in fact the RFP called for only one. To him, that "constituted...enough ambiguity to warrant" a recommendation that the contract be rebid. Petitioner had no difficulty in interpreting the specifications and offered a bid proposal which was responsive to the Board's request. Although five of intervenor's proposals were non-responsive, it did submit a composite plan at a $3.00 premium (proposal E) which was responsive to section 2.0 of the specifications. Indeed, Board and FBC representatives acknowledged at the February 18 meeting that proposal E was responsive to the RFP. Except for the submission of joint exhibits 1-19, there was no other evidence concerning the ambiguity or lack thereof in the specifications. Accordingly, no testimony was heard from the individuals who prepared the specifications, who made the recommendation that the bids be rejected, or who filled out the bid documents on behalf of petitioner and intervenor. There was also no evidence to support the charge that the decision was based on "politics" or that any other misconduct occurred during the bidding process.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered rejecting all bids on RFP 87-269A and that the contract be relet. DONE AND ORDERED this 21st day of April, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 21st day of April, 1987.
