The Issue Should the Department of Transportation (Department) grant Petitioner Ronnie Forrest's connection application number C-13-021-93 for a permit to construct a driveway and acceleration/deceleration lanes, to provide access to U S 19 (S R 45 and 55) for Petitioner's proposed development of parcel identified in plans as Site B? Should the Department grant Petitioner's connection application number C-13.022-93 for a permit to construct two driveways to provide separate ingress and egress to U S 19 (S R 45 and 55) and U S 41 (S R 55) for Petitioner's proposed development of parcel identified in the plans as Site A?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department was the state agency responsible for regulating vehicular access and connections to or from the State Highway System in accordance with Sections 335.18 through 335.188, Florida Statutes, known as the State Highway System Access Management Act. Petitioner proposes to develop two parcels of land located in the functional area of the interchange of S R 45 and 55 (U S 19/41/301) in Manatee County, Florida. The parcels of land are designated on the site plans as Site A and Site B. The functional area of the interchange is the area within which a driver is expected to react to and make decisions concerning traffic. Site A comprises approximately seven acres. Petitioner proposes to construct a four thousand square foot convenience store, restaurant with gas pumps, truck diesel pumps, a car wash and accompanying parking for cars and trucks. Petitioner's Connection Application for permit number C-13-022-93 seeks authorization from the Department to construct two driveways for Site A which are to serve as separate ingress and egress points for vehicles entering and leaving Petitioner's proposed development. The ingress to Site A is proposed to be located on the east side of the parcel where northbound U S 19 diverges from northbound U S 41. The egress from Site A is proposed to be located on the west side of the parcel where southbound U S 19 and U S 41 merge. Site B comprises approximately four acres. Petitioner proposes to construct a six thousand square foot convenience store, restaurant, gas station, truck fuel pumps, car wash and accompanying parking for cars and trucks. Petitioner's Connection Application for permit number C-13-021-93 seeks authorization from the Department to construct one driveway and acceleration/deceleration lanes for ingress/egress for Site B. The proposed driveway location is at southbound U S 19 approximately across from 43rd Street Boulevard, West. There is at least one motel within close proximity of the proposed developments for Site A and B which presently offers room accommodations and parking for truckers. The proposed developments for Site A and B are neither as large as, nor offer as many amenities as, the traditional truck stop. However, the proposed developments for Sites A and B provide amenities such as restaurants, truck diesel fueling and truck parking areas. Therefore, due to the available amenities, the traffic composition - which includes large truck traffic - on U S 19, 41 and 301 and the motel accommodations, large trucks will be attracted to, and will use, the facilities proposed for Sites A and B. The proposed location of Site A's ingress or entrance driveway is limited by: (a) the existence of a limited access right of way line south of the existing driveway; (b) the existence of separate property to the north; and (c) grade separation of approximately 20 feet which occurs to the north at the departure of U S 41 into U S 19 overpass. The proposed location of Site A's egress or exiting driveway is limited by: (a) the existence of limited access right of way line approximately 30 feet to the south; (b) wetlands encroachment to the north; and (c) less available sight distance further north of the proposed egress location. The reason for less available sight distance at this location is due to: (a) the curvature of Site A; (a) the speed limit; and (c) the merger of U S 41 and U S 19 southbound traffic. Given the current configuration and traffic geometry, the proposed ingress and egress to parcel A are located in the most desirable positions possible from a traffic operational standpoint. The proposed location of Site B's ingress/egress is a driveway approximately across from 43rd Street Boulevard, West, on southbound U S 19 before it merges with southbound U S 41. A left in, left out driveway is proposed at this location. The operation of the two sites as proposed, individually or combined, will result in the generation of increased automobile traffic and large heavy truck traffic. The increased automobile and large heavy truck traffic entering and exiting the sites will create traffic hazards within the functional area of the interchange. Through traffic in the travel lanes within the functional area of the interchange travels at speeds of 55 to 60 miles per hour. Automobile and truck traffic accelerating and decelerating to enter or exit the sites will create significant speed differentials within the functional area of the interchange. For example, large heavy trucks will not have sufficient acceleration lane distance as they exit Site A or Site B to achieve the same speed as the through traffic which will create high speed differentials within the functional area of the interchange. The speed differentials in the functional area of the interchange will increase the accident rate within the functional area of the interchange, particularly truck/through traffic accidents. Traffic will be required to enter and exit the sites at points along the roadways within the functional area of the interchange where traffic is already required to execute a significant amount of weaving. As proposed, the sites will increase the area and number of conflicts within the functional area of the interchange. This in turn, will increase traffic weaving. Increase in the conflict points within the functional area of the interchange degrade the safe operation of the interchange. The sites as proposed, will increase U-turn volume at the median opening south of Site A. Large heavy trucks attempting this U-turn maneuver will encroach into the northbound travel lanes of U S 41. Additionally, since this U-turn maneuver requires a significant gap in through traffic, trucks will delay btheir U-turn maneuver causing queuing in the southbound left turn lane south of Site A. This U-turn maneuver will significantly reduce the available weave/merge/acceleration/deceleration distance between Site A and the U-turn location increasing the potential for truck/through traffic accidents. Operation of Site B as proposed has the potential to increase U-turns at the first median opening north of Site B on northbound US 19. Since the median width at this location is insufficient to accommodate large trucks, queuing will occur in the left turn lane at this location and present a potential safety and operational problem on the roadway. Sight distance at the Site A proposed egress is insufficient. Without sufficient sight distance, a driver's expectancy on the roadway is adversely affected in that there is insufficient time for the driver to react to another driver's intentions. The existing geometry of the interchange, the existing traffic flow, traffic volume and vehicle classifications on the roadways comprising the interchange, require certain levels of driver expectancy regarding operation of the functional area of the interchange. Since the safety hazards and operational problems described above occur within the functional area of the interchange, driver expectancy will be violated in the interchange by operation of the sites as proposed, adversely impacting the safety and operational characteristics of the roadways that comprise the interchange. The access connections for the sites as proposed would jeopardize the safety of the public, and would have a negative impact upon the operational characteristics of the highways comprising this interchange. There was insufficient evidence to show that there were other reasonable access connections available for the sites as proposed that would not jeopardize the safety of the public or would not have a negative impact upon the operational characteristics of the highways comprising this interchange.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying Petitioner's Connection Application for permit numbers C-13-021-93 and C-13-022- 93. RECOMMENDED this 16th day of August, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4356 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 in this case. Petitioner's Proposed Findings of Fact. 1. Proposed findings of fact 1 through 1 are adopted in substance as modified in Findings of Fact 1 through 25. Department's Proposed Findings of Fact. 1. Proposed finding of fact 1 through 21 are adopted in substance as modified in Findings of Fact 1 through 25. COPIES FURNISHED: Charles F. Johnson, Esquire Blalock, Landers, Walters, and Vogler, P.A. Post Office Box 469 Bradenton, Florida 34206 Francine M. Ffolkes, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Thornton J. Williams General Counsel Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450
The Issue The issue is whether the Department of Transportation's (the "Department") intended award of RFP-DOT-04/05-6063DS to Anchor Towing, Inc. ("Anchor Towing"), after the re-evaluation of the proposals pursuant to the Department's Final Order on Motion to Remand is contrary to the agency's governing statutes, rules, or policies, or the bid or proposal specifications.
Findings Of Fact On December 18, 2003, the Department's District Six, advertised Request for Proposal RFP-DOT-04/05-6063DS, for emergency service patrol "Road Ranger" services under the SunGuide Intelligent Transportation System. The RFP solicited responses from qualified companies to provide towing and emergency roadside services for disabled vehicles on State Roads 112, 836, 874, 878, and 924. Proposals for RFP-DOT-04/05-6063DS were due February 5, 2004. The RFP was created by Nancy Kay Lyons, the Department's District Contract Administrator using the "boilerplate" language common to most Department RFPs. The advertisement or "Notice for the RFP" is a summary of the RFP and identifies some of the specific requirements of the RFP. It is intended to give potential proposers enough information to decide whether they want to order the entire package. The "boilerplate" language and the language found throughout the RFP was approved by the Department's office in Tallahassee, and underwent review by the Department's lawyers. The RFP requested "written proposals from qualified Proposers." The RFP states that the Department "intends to award the contract to the responsive and responsible Proposer whose proposal is determined to be the most advantageous to the Department." The RFP provides that the Department shall review a proposal for responsiveness. Section 11.2 of the RFP defined a "responsive proposal" as follows: A responsive proposal is an offer to perform the scope of services called for in the Request for Proposal in accordance with all the requirements of the Request for Proposal and receiving seventy (70) points or more on the Technical Proposal. Proposals found to be non-responsive shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A proposal may be found to be irregular or non-responsive by reasons that include, but are not limited to, failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, improper and/or undated signatures. The RFP did not contain a definition of responsibility, or provide any explanation of how it is determined by the Department. Both the RFP and the Notice of the RFP contained the following requirement: QUALIFICATIONS OF THE PROPOSER: Prospective proposers must be able to meet or exceed the qualifications and proposer requirements in accordance with proposal documents. IN ADDITION TO THE ABOVE THE PRIME PROPOSER SHALL BE REQUIRED TO SUBMIT PROOF OF THE FOLLOWING ALONG WITH THE SEALED PROPOSAL: . . . The proposer shall provide proof that the firm not the individual is authorized and licensed to do business in the state of Florida and has been providing the type of services required for a minimum of five (5) years in good corporate standing. . . . FAILURE TO ADHERE TO THIS DIRECTIVE SHALL RESULT IN THE SUCCESSFUL PROPOSER'S PROPOSAL BEING DECLARED NON-RESPONSIVE. The requirement that "[t]he proposer shall provide proof that the firm not the individual is authorized and licensed to do business in the state of Florida and has been providing the type of services required for a minimum of five (5) years in good corporate standing" is also found in Section 20.2.1.iii of the RFP. The RFP contained a notice that only the RFP or addenda thereto contained the operative terms of the RFP. One addendum was issued by the Department concerning the RFP. A second document containing questions of proposers and the Department's response was also issued prior to the submission deadline. The questions and answers did not address any matter related to the issues in this protest. One mandatory pre-proposal conference was held at the Department's Miami-Dade County office on January 8, 2004, concerning the RFP. Both Anchor Towing and Sunshine Towing attended the January 8, 2004, conference. Ms. Lyons conducted the meeting and addressed the issue of qualifications of the proposers by stating: "You're going to be required proof that the firm, not the individual, is licensed, is authorized and licensed to do business in the state of Florida, and has been providing the type of services required for the minimum of five years in good corporate standing." She suggested that, to meet this requirement, proposers submit their corporate charters. Ms. Lyons stated at the pre-proposal conference that the decision on which firm would be awarded the contract would be based solely on the contents of the proposal. The RFP, at Sections 20.2 and 21.3, set forth the specific evaluation criteria upon which all proposers would be judged. Section 20.2 of the RFP identified six categories to be addressed by each proposer: Administration and Management, Identification of Key Personnel, Business History/Experience of the Contractor, Technical Approach, Facility and Equipment Capabilities, and Insurance. Section 20.2 of the RFP also identified various components of the six categories that each proposer "may," "should," or "shall" include in its written responses, including Section 20.2 1.iii.)g) of the RFP which states: The proposer shall indicate if their company or any of their principal officers, employees or owners have been involved with any lawsuits or judgments against the individual or the firm. They shall include a list of all outstanding judgments (if any) relating to towing or storage activities. This section, which appeared in prior Road Ranger RFPs, was amended to add the second sentence, after the Department entered its contract for RFP-DOT-03/04-0653DS with Anchor Towing. This second sentence was added for the first time to this RFP to ensure that the Department did not contract with a company that was conducting illegal activity related to towing or storage, because the Department hoped to avoid negative feedback for its Road Ranger program. Section 21.3 of the RFP established the point system for scoring the six categories of information provided by each proposer to the Department as follows: Administration and Management 20 points, Identification of Key Personnel 15 points, Business History/Experience of the Contractor 20 points, Technical Approach 20 points, Facility and Equipment Capabilities 20 points, and Insurance 5 points. The RFP did not mention that the six categories might be further divided into sub-subcategories. The RFP contained numerous provisions prescribed by agency rules or governing statutes. These provisions relate to Department conduct with respect to review of the proposals. Section 6 of the RFP stated: RFP QUESTIONS & ANSWERS Any technical questions arising from this Request for Proposals must be forwarded, in writing, to the procurement agent identified below. In order for technical questions to be answered in a timely fashion, technical questions must be received no later than January 15, 2004 at 5:00 p.m. local time. There is no deadline for contract or administrative questions. The Department’s written response to the written inquiries submitted timely by potential Proposers will be posted on the Florida Vendor Bid System at www.myflorida.com (click on 'BUSINESS,' click on 'Doing Business with the State,' under 'Everything for Vendors and Customers,' click on 'Vendor Bid System (VBS),' then click on 'Search Advertisements'), under this proposal number. It is the responsibility of all potential Proposers to monitor this site for any changing information prior to submitting their proposal. Only written inquires from potential Proposers, which are signed by persons authorized to contractually bind the Proposers, will be recognized by the Department as duly authorized expressions on behalf of potential Proposers. WRITTEN TECHNICAL QUESTIONS should be submitted to: Nancy Kay LyonsDistrict Contracts Administrator Florida Department of Transportation, Procurement Services Office1000 Northwest 111th Avenue, Room #6252Miami, Florida 33172Telephone Number: (305) 470-5404Fax Number (305) 470-5717 E-mail Address:d6.contracts@dot.state.fl.us (Emphasis in original.) Section 7 of the RFP stated: ORAL INSTRUCTIONS/CHANGES TO REQUEST FOR PRPOSALS (ADDENDA) No negotiations, decisions, or actions will be initiated or executed by a potential Proposer as a result of any oral discussions with a State employee. Only those communications which are in writing from the Department will be considered as a duly authorized expression on behalf of the Department. Notice of changes (addenda) will be posted on the Florida Vendor Bid System at www.myflorida.com (click on 'BUSINESS,' click on 'Doing Business with the State,' under 'Everything for Vendors and Customers,' click on 'Vendor Bid System (VBS),' then click on 'Search Advertisements'), under this proposal number. It is the responsibility of all potential Proposers to monitor this site for any changing information prior to submitting their proposal. All addenda will be acknowledged by signature and subsequent submission of addenda with the technical proposal when so stated in the addenda. (Emphasis in original.) Section 8 of the RFP stated, in relevant part: MANDATORY PRE-PROPOSAL MEETING A MANDATORY pre-proposal meeting is scheduled for January 8, 2004 at 10:00 a.m. The meeting will be held at the Florida Department of Transportation District Six 'Auditorium.' 1000 Northwest 111th Avenue, Miami, Florida 33172. The purpose of this meeting is to provide an open forum for the Department to review the Scope of Services and respond to questions from the RFP recipients on: Scope of Service, RFP requirements, contractual requirements, methods of compensation and other appropriate attachments to the RFP. Any changes and/or resulting addenda to the RFP will be the sole prerogative of the Department. (Emphasis in original.) Section 9 of the RFP stated, in relevant part: PROTEST OF REQUEST FOR PROPOSAL SPECIFICATIONS Any person who is adversely affected by the specifications contained in a Request For Proposal must file the following with the Department of Transportation, Clerk of Agency Proceedings, Office of General Counsel, 605 Suwannee Street, Tallahassee, Florida 32399- 0450. A written notice of protest within seventy-two (72) hours after the posting of the solicitation, and A formal written protest in compliance with Section 120.57(3), Florida Statutes, within ten (10) days after the date on which the written notice of protest is filed. Failure to file a notice of protest or failure to file a written protest within the time prescribed in Section 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. (Emphasis in original.) Section 11.2 of the RFP required all proposals to be typed or printed in ink. Additionally, proposals were required to be timely submitted, and receive a technical score of 70 or more in order to be deemed responsive and to be considered for the contract award. Section 11.5 of the RFP provides as follows: The department may waive minor informalities or irregularities in proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other Proposers. Minor irregularities are defined as those that will not have an adverse effect on the Department’s interest and will not affect the price of the Proposal by giving a Proposer an advantage or benefit not enjoyed by other Proposers. The Department expressly reserved the right to accept or reject any and all proposals. The RFP provides that the Department expects all technical proposals to follow the prescribed format, and that a failure to do so may result in rejection of the proposal. Section 7 of the RFP's Scope of Services sets forth the Service Patrol Vehicle Operator Requirements. Section 7.3.1 specifically states that "[i]ndividuals with criminal records shall not be hired." Section 20.2.1.ii.)a) provides in part: The Proposer shall provide the description, location and availability of all the Proposer’s facilities, staff and equipment as they currently exist and as they will be employed for the purpose of this contract. This shall include the following: . . . Any employees and services that are being provided by the sub-consultants/sub- contractor should be identified by the name of the sub-consultant/sub-contractor, their address, telephone number and contact name. Proposers shall include some form of agreement/acknowledgment from the subcontractor/sub-consultant showing that they will be providing these services as applicable. Section 20.2.1.iii.)e) also requires all proposers to include a Certificate of Occupancy in their proposals. Six companies submitted technical proposals in response to the RFP. None of the responding companies were disqualified in the original posting of the award. The original Selection Committee members chosen to evaluate the proposals were Aurelio Carmanates, Arnaldo Fernandez, Omar Meitin, and Angel Reanos, all of whom had prior experience as selection Committee members on previous RFP solicitations. The Department recommended that the contract be awarded to Sunshine Towing. Anchor Towing filed a timely protest of the intended award. The protest was referred to DOAH and a hearing was held on July 20, 21, and August 10, 2004, in Miami, Florida. In the course of testimony in the final hearing, two of the evaluators, Aurelio Carmenates and Angel Reanos denied having socialized with Alexis Ramos, a principal of Sunshine Towing. Following the hearing, the undersigned entered an Order recommending that the Department's decision to award the contract to Sunshine Towing be sustained. Anchor Towing filed exceptions to the Recommended Order. The Department rejected the exceptions, adopted the Recommended Order, and entered into a contract with Sunshine Towing on January 12, 2005. Subsequent to the award, Anchor Towing complained to the Department's Inspector General that Mr. Ramos and the two named evaluators had lied under oath. As a result of the investigation, Mr. Carmenates and Mr. Reanos admitted they had socialized with Mr. Ramos at the Pink Pony, an adult entertainment club in Hialeah, Florida, during the same month the Department issued the RFP. Mr. Reanos admitted to giving false testimony on the stand at the previous hearing on the bid protest. After obtaining a copy of the Inspector General's report, Anchor Towing moved for a remand of the case back to DOAH. On April 15, 2005, the Department issued its Final Order on Remand, in which it ordered that a new evaluation committee be empanelled. In its Final Order on Remand, the Department stated that: Based upon an analysis of the law, and a review of the record in its entirety, it is concluded that the DEPARTMENT has the authority to alter its final order dated November 29, 2004. The law and the record also establish that an admission of lying by a member of a technical review committee is, indeed, an extraordinary circumstance. It is also an extraordinary circumstance to have the integrity of a second member of a technical review committee investigated and challenged regarding the same social gathering that included one of the bidders. As such, the DEPARTMENT has concluded that it should exercise its authority and authorize the DEPARTMENT’S District VI to select a minimum of three other individuals with the background, experience, and/or professional credentials in the service areas relevant to the subject RFP, to newly evaluate the submissions responsive to the subject RFP. The DEPARTMENT’S District VI should then proceed to determine the lowest responsible bidder and issue its notice of intent to award the subject contract to the successful bidder. Sunshine Towing moved for a clarification of the Final Order on Remand. The Department issued a subsequent Order requiring that the members of the new evaluation committee be made aware of the following findings of fact and accept them as true: Sunshine Towing’s response to the RFP did not follow the organizational format or numbering of the Technical Proposal Format set forth in the RFP. Sunshine Towing’s response to the RFP did not disclose the litigation history of the firm or its owners. Anchor Towing’s Response to the RFP did not follow the organizational format of the Technical Proposal Format set forth in the RFP in that it was not sequentially numbered and was not indexed as set forth in Section 20.4 of the 'Special Conditions' to the RFP. Anchor Towing’s response to the RFP did not contain a copy of the firm’s Certificate of Occupancy for business premises from which to conduct the services solicited by the RFP as set forth in Section 20.2(1)(iii)(c) [sic] of the RFP. Petitioner failed to disclose two litigation matters involving Monica Savits, president of Anchor Towing, which were dismissed prior to a judgment or verdict having been rendered. Petitioner failed to disclose a small claims court matter filed against Anchor Towing on May 3, 2002. Petitioner did not disclose the felony conviction of Christopher Savits dated August 5, 2003, relating to towing or storage activities involving one of Anchor Towing’s tow trucks and Mr. Savits. Other facts made known to the re-evaluation committee were: Sunshine Towing's response to the RFP did not disclose the litigation history of the firm or its owners. Petitioner failed to disclose a small claims court matter filed against Anchor Towing of May 3, 2002. The Department's Clarification Order specifically stated, "The DEPARTMENT recognizes that the administrative law judge made certain findings of fact concerning proposals submitted by SUNSHINE TOWING and ANCHOR TOWING. Because those findings have gone unchallenged, they are final and binding on the parties." The Clarification Order noted that it was final agency action that could be appealed pursuant to Section 120.68, Florida Statutes. Neither the Department, Anchor Towing, nor Sunshine Towing took an appeal from the Order. The new five-member technical review committee consisted of Matthew O'Brien, Operations Analyst; Sergio Bravo, ITS Systems Manager; Alfred Nolton, Traffic Operations Analyst; Keith Sheffler, Miami-Dade Expressway Authority Tolls System Manager; and Paul Clark, Statewide Traffic Incident Management & Road Ranger Project Manager. A meeting of the evaluators was held on December 12, 2005, at the Department's District Six offices in Miami, Florida. Each of the evaluators was present at the meeting, except for Mr. Clark, who appeared by telephone. The Department provided each of the evaluators with instructions for grading the proposals received. Each of the evaluators received a package containing the RFP, the five technical proposals to be evaluated (one of the original Proposers had gone out of business), and the Findings of Fact, which they were instructed to accept as true. At the December 12 meeting, the evaluators and Ms. Lyons discussed how to grade the proposals, including assigning a specific maximum number of points to the sub- subcategories. A mandatory pre-proposal meeting was held at the Department's Miami-Dade County office on January 8, 2004. This was a joint pre-proposal meeting for RFP-DOT-04/05-6063DS and RFP-DOT-04/05-6062DS. Both Sunshine Towing and Anchor Towing attended the meeting. Nancy Kay Lyons conducted both meetings for the Department. Ms. Lyons informed those present that the decision on which Proposer would be awarded the contract would be based solely on the contents of the proposals. Ms. Lyons reviewed the scoring process at the meeting and confirmed the category and sub-category scoring would be as follows: The administration management plan will consist of up to a total of 55 points divided into: 20 for administration management, 15 for identification of key personnel, 20 for business history experience of the contractor. The proposal’s technical plan is up to 45 points, technical approach is 20, facilitating equipment capabilities is 20 and insurance is up to 5. At the pre-proposal meeting, Ms. Lyons gave an explanation of the five years of corporate experience requirement called for in Section 20.2.1.iii)b): We would use your experience, OK. We would go ahead and use your experience since it is the same officers for both companies that are forming another company so we would use your experience for that. OK. We would take that into account, but we cannot contract with more than one entity. DOT cannot contract with Midtown Towing and Downtown Towing on the same contract. So either you are going to be the prime, or they are going to be the prime and you will be the sub, or what you have to do is turn around and form another corporation. Whoever is the prime, however, is the one that the insurance certificates, etc. are going to be in. That sub, you are going to notify us as to who the sub is, and we will look at their qualifications as a sub, but we will not take their qualifications in consideration as a prime. Ms. Lyons did not believe that this oral statement made at the pre-proposal conference changed the terms of the RFP. Her position was that only a written addendum or modification of the RFP could change its terms. Ms. Lyons interpreted the five years of corporate existence requirement to allow a firm that was in business at least five years, even if not incorporated the entire five years, to qualify as a Proposer so long as the firm was in business under the same name prior to being incorporated. Ms. Lyons would count the years of existence prior to incorporation only if the owners of the business were the same for the entire time the company had been in business. Her concern was that both the firm and the individual had been in the business of management of the company for the five-year period. Paul Clark, Sergio Bravo, and Alfred Nolton, evaluated the proposals on the bases of their content, the Findings of Fact, and the RFP. Matthew O'Brien evaluated the proposals on the bases of the proposals' content, the Findings of Fact, and the RFP. However, Mr. O'Brien also verified information contained in the proposals submitted by all the Proposers by checking various websites on the Internet. No evidence was submitted as to how Mr. Sheffler evaluated the proposals. Evaluators Bravo, Nolton, and O'Brien further divided the six subcategories into 24 sub-subcategories for evaluation purposes. These individual evaluators assigned differing maximum points to the sub-subcategories based upon their personal experiences. Evaluators Clark, Bravo, Nolton, and O'Brien scored the proposals independently from one another and outside influence and assigned point values. None of the four evaluators who testified at hearing, Bravo, Clark, Nolton, or O'Brien, were influenced by bias against Sunshine Towing or favoritism towards Anchor Towing in their scoring of either company's proposals. Petitioner presented evidence that Mr. O'Brien might be biased because he was in the middle of an issue with Sunshine Towing concerning the slow payment of invoices submitted to him by Ms. Ramos. Petitioner argued that Mr. O'Brien's attitude towards Ms. Ramos became more businesslike when she complained to his supervisors that payment of her invoices was slow in coming. The Evaluation Committee reviewed each proposal independently, awarding Anchor Towing 101.267 points (88.20 technical and 12.857 price) and Sunshine Towing 96.257 points (83.40 technical and 12.857 price). Anchor Towing Downtown Towing Midtown Towing Molina Towing Sunshine Towing Paul Clark 90 70 86 69 88 Sergio Bravo 84 76 85 74 80 Alfred Nolton 89 80 88 83 76 Matthew O’Brien 97 73 83 56 80 Keith Sheffler 81 68 69 60 93 Total 441 367 411 342 417 Average of 5 88.2 73.4 82.2 68.4 83.4 The scoring breakdown by the members of the Evaluation Committee was as follows: Since Sunshine Towing and Anchor Towing submitted identical price proposals, they received identical price proposal scores. Anchor Towing received the most points from the five- person Evaluation Committee and was recommended by the Department to receive the subject contract through its Notice of Intent to Award posted on June 1, 2006. Sunshine Towing, Inc., is a domestic, for-profit corporation authorized to do business in Florida since June 20, 2000. At the time it submitted its proposal, Sunshine Towing had been incorporated less than five years. This information was confirmed by Sunshine's proposal which contained a copy of its corporate charter. At the time of the submittal of its proposal in February 2004, Sunshine Towing's officers were Alexis Ramos, president, and Ann Margaret Ramos, vice president. Sunshine Towing currently provides service patrol highway assistance services to motorists with disabled vehicles under contract with the Department. On June 3, 1994, Alexis Ramos registered the fictitious name "Sunshine Towing" with the Florida Department of State. The registration lists only Alexis Ramos as the owner of the fictitious name. The registration form, which is verified as though under oath, was prepared by Ann Margaret Ramos for her husband's signature. On November 11, 1999, Mr. Ramos renewed his registration of the fictitious name "Sunshine Towing" with the Florida Department of State. The renewal listed only Alexis Ramos as the owner of the fictitious name. The renewal form contained the following certification: I (we) the undersigned, being the sole (all the) party(ies) owning an interest in the above fictitious name, certify that the information indicated on this form is true and accurate. I (we) understand that the signature(s) below shall have the same legal effect as if made under oath. I further certify that the names of individuals listed on this form do not qualify for an exemption under section 119.07(3)(i), F.S. (At least one signature required). Only Mr. Ramos signed the fictitious name renewal form. From the time of its incorporation, Ann Margaret Ramos has been the majority shareholder of Sunshine Towing, while Alexis Ramos has been a minority shareholder. Sunshine Towing's proposal did not contain any proof of Mr. Ramos' fictitious name registration. The two joint tax returns filed by Mr. and Ms. Ramos for 1998 and 1999 included a Schedule C listing income and expenses related to the operation of Sunshine Towing prior to its incorporation. Schedule C lists both Mr. and Ms. Ramos as the taxpayer, but used only Mr. Ramos' Social Security Number. Schedule C is designated for use by a "Sole Proprietor." Sunshine Towing submitted the resumes of Alexis Ramos and Ann Margaret Ramos with its proposal. Mr. Ramos' resume stated that from 1992 through the submittal of Sunshine Towing's proposal, he had been "President" of Sunshine Towing, Inc. The notation is incorrect since Sunshine Towing was not incorporated until June 2000, and even the fictitious name registration was not made until 1994. Ms. Ramos admitted during her testimony that the notation was incorrect since Sunshine Towing was not incorporated until 2000. Ms. Ramos' resume stated that from 1996 through the time of the submittal of Sunshine Towing's proposal, she had been "Vice President" of Sunshine Towing, Inc. Ms. Ramos admitted during her testimony that this was incorrect since Sunshine Towing had not been incorporated until June 2000. Ms. Ramos holds the majority interest in the corporation. If Mr. and Ms. Ramos both owned the entity "Sunshine Towing," they would both be required to be listed on the fictitious name registration. The owner of the fictitious entity "Sunshine Towing" is different from the owners of the shares of "Sunshine Towing, Inc." Sunshine Towing's proposal did not disclose the litigation history of the firm or its owners. Sunshine Towing's proposal did not disclose Alexis Ramos' criminal history in that when he was 16 or 17 he was arrested for driving with a suspended license, was taken into custody, fingerprinted, and photographed. Sunshine Towing's proposal did not disclose that Alexis Ramos had been served with a Violation Notice from Miami- Dade County for operating a business without an occupational license. Sunshine Towing's proposal did not disclose that Nardia Sutherland filed a lawsuit against it in 2002. Sunshine Towing's proposal did not disclose that Jose Fadul filed a lawsuit against it in 2002. Anchor Towing, Inc., was incorporated on July 3, 1995. Brian Savits, Monica Savits' brother-in-law, was initially the sole officer and shareholder of the corporation. At the time of incorporation, Ms. Savits, and her husband, Christopher Savits, worked with Brian Savits in the business. Anchor Towing's proposal did not contain a copy of the company's Certificate of Occupancy for the business premises from which to conduct the services described in the RFP. Christopher Savits is the husband of Monica Savits, the president of Anchor Towing. They had been married almost 12 years at the time of the prior bid protest hearing. Christopher Savits was never an officer or director of Anchor Towing. Christopher Savits was no longer an employee of Anchor Towing after 2000. Christopher Savits was never a shareholder in Anchor Towing. On numerous occasions, Christopher Savits attended Department-sponsored meetings related to service patrol highway services, also known as the "Road Ranger" program. After 2000, Christopher Savits continued to be listed as an authorized driver on Anchor Towing's corporate automobile insurance policy. Mr. Savits performed duties for Anchor Towing from 2000 through 2004, including participation in safety meetings, working on company trucks, appearing at accidents, and giving direction to drivers. On one occasion after 2000, Mr. Savits went on his wife's behalf to deliver a tow truck to an Anchor Towing employee in the middle of the night. On occasion, after 2000, Mr. Savits helped clean the yard at Anchor Towing without pay. Mr. and Ms. Savits attended tow shows together after 2000. Mr. Savits assisted Ms. Savits with the acquisition of tow trucks after 2000. Mr. Savits attended meetings related to the "Road Ranger" program between 2000 and the time Anchor Towing submitted its proposal. Mr. and Ms. Savits attended a meeting with the Department on February 14, 2003, to address an accident that occurred that night. In its proposal, Anchor Towing included letters of reference in which companies doing business with Anchor Towing refer to Christopher Savits as an owner or co-owner of Anchor Towing. In 2004, Christopher Savits took a diversity training course given by Anchor Towing at its office. In 2004, Mr. Savits received $70,000 in a series of checks from Anchor Towing that he used to purchase a boat titled in his name alone. Mr. and Ms. Savits' joint federal income tax return for 2003, listed Mr. Savits' occupation as "towing." On July 11, 2003, a felony conviction was entered against Mr. Savits in the case styled State of Florida v. Christopher Lee Savits, Case No. FO3-015107. The felony conviction arose out of a guilty plea entered by Mr. Savits to a violation of Section 319.30(2)(b), Florida Statutes, which involved an Anchor Towing truck. At least some officials with the Department believed Mr. Savits to be an owner of Anchor Towing after 2000. At the time that Anchor Towing submitted its proposal in February 2004, Christopher Savits was not an employee of Anchor Towing. Monica Savits' resume, included with Anchor Towing's proposal, states that from 1995 to the time of submittal, she was the "Owner/Operator" of Anchor Towing. Anchor Towing uses an employee leasing firm to process its payroll and pay its employees. All decisions concerning the hiring and firing of employees, as well as the ability to direct and control employees acts related to conducting Anchor Towing's business rest with Ms. Savits. Although using an employee leasing firm, Ms. Savits has not relinquished her power to run the business, to hire employees she wants to hire, or to control what tasks employees perform, when they perform them, and how they perform them. Anchor Towing did not disclose in its proposal that a tax lien for unpaid unemployment taxes totaling $325.49 was outstanding at one time, but had been satisfied prior to submittal of the proposal. In its proposal, Anchor Towing disclosed that it proposed to operate the contract contemplated by the RFP from 7444 Northwest 8th Street, Miami, Florida. Anchor Towing had not bought or leased this location at the time it submitted its proposal. Anchor Towing also listed the location of its current property in its proposal. Petitioner did not produce evidence at hearing to demonstrate that the Department determined in the prior proceeding that Anchor Towing's proposal was non-responsive for failure to disclose Christopher Savits' felony conviction related to towing and storage services. Petitioner introduced a document relating to a forfeiture proceeding against Monica Savits. The Circuit Court in and for Dade County, Florida, issued a "no action" on June 11, 2003, and the matter was dismissed. Petitioner introduced another RFP, RFP-DOT-03/04- 6053DS. This RFP was to provide Road Ranger services on State Road 826 and I-75. That RFP included an addendum which provided: 9) THE FOLLOWING REQUIREMENT IS CLARIFIED AS FOLLOWS: REQUIREMENT ON ADVERTISEMENT: The Proposer shall provide proof that the firm not the individual has been providing the type of services required for a minimum of five(5) years in good corporate standing. CLARIFICATION: If the firm was in business under the same name prior to being incorporated, the Department shall accept that experience as part of the five (5) years. i.e. ABC firm was in business for ten (10) years, and then became a corporation and is now named ABC, Inc. PLEASE NOTE: OWNERS MUST BE THE SAME Sunshine Towing did not seek a clarification from the Department related to the subject RFP, which may have allowed the Department to accept its pre-incorporation existence.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED as follows: That the RFP solicitation process was conducted in accordance with Chapter 287.057, Florida Statutes; Florida Administrative Code Rules 60A-1.002(9) and (10) and 60A- 1.001(17); and the text of RFP-DOT-04/05-6063DS; That Petitioner's Formal Written Protest be dismissed as it relates to the issue of Intervenor's failure to disclose the felony conviction of Christopher Savits; and That the Department enter a Final Order adopting the above recommendations and executing a contract for RFP-DOT- 04/05-6063DS with Sunshine Towing, Inc. DONE AND ENTERED this 27th day of November, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 2006. COPIES FURNISHED: C. Denise Johnson, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Miguel A. De Grandy, Esquire Stephen M. Cody, Esquire Miguel De Grandy, P.A. 800 Douglas Road, Suite 850 Coral Gables, Florida 33134 John C. Shawde, Esquire Kelly A. O'Keefe, Esquire Berger Singerman, P.A. 200 South Biscayne Boulevard, Suite 1000 Miami, Florida 33131-2398 James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Denver Stutler, Secretary Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact Gordy is the owner of Tracers. He holds an R Recovery Agency license for Tracers, #R91-00031, and an E Recovery Agent license, #E91-00027. On the afternoon of August 20, 1992, in Duval County, Florida, Gordy and Jessica Clark repossessed a 1989 Hyundai Excel from Lisa Clouse based on an Order to Repossess from Sport Acceptance Corporation. The car was parked under the carport attached to the house where Clouse resided with her parents, Russell and Grace Bonitatibus, and her children. The various witnesses related radically different versions of what transpired in the course of this repossession. Having considered the demeanor of the witnesses and the consistency or inconsistency of their stories, it is found that the versions told by Clouse and her parents are contradictory, implausible, and unworthy of belief. The findings set forth below represent the version of the events which is most credible. On August 20, 1992, at around 3:30 p.m., Gordy and Clark located the vehicle for which an Order to Repossess had been issued. They backed the tow truck into the driveway and chained and lifted the car. The car was parked in the carport facing forward such that the car was lifted from its rear and would be towed backwards. Clouse came out and tried to persuade Gordy not to take the car so that she could make a payment by 5:00 p.m. Gordy insisted that he was taking the vehicle. Clouse asked him to come in the house while she called Bob Burnes at Sport Acceptance Corporation. Clouse was cussing at Burnes before and during the telephone call. After speaking with Burnes, Clouse handed the keys to Gordy and said "you can take the damn car, but I want my shit," meaning that she wanted her possessions from inside the car. Gordy told her that would be no problem. Gordy and Clouse went outside to the car. Gordy unlocked it using Clouse's keys. Clouse removed some personal items from the rear hatch. She then opened the driver's door and removed some other items. Clark went to the cab of the truck to get a garbage bag into which Clouse could place her belongings. Meanwhile, Clouse partially closed the driver's door and asked Gordy for a screwdriver to remove her license plate. Gordy went to the driver's door of the truck to get a screwdriver. Clouse was swearing loudly and frequently at the car and Sport Acceptance Corporation, but she seemed to be cooperating in the repossession. While Gordy was in the cab of the truck at the driver's side, Clouse was standing near the rear of the truck and the car, on the opposite side. Clark was coming back from the passenger side of the truck toward the driver's side of the car when Clouse, without warning, picked up a five foot length of chain with a wrecker hook attached from the back of the truck. Clouse swung the hook at Clark. Clark heard the "woosh" of the chain swinging just in time to look up and then duck. Gordy heard the chain rattling and looked back just as Clark ducked the first swing. Clouse gathered herself to swing again and Clark backed up to the open truck door. Gordy yelled at Clouse to stop and he grabbed a 200,000 volt stun gun from inside the truck. While standing by the truck's driver's door and with Clouse on the opposite side of the truck near its rear bumper, Gordy held the stun gun in the air and fired it up into the air. The loud zapping sound from the stun gun got Clouse's attention, she dropped the chain and just stood there. Gordy yelled at Clark to get in the truck and he immediately drove out of the driveway towing the car. Because he had not had an opportunity to release the emergency brake in the car, the car's front tires were dragging. The windows of the truck were open and both Gordy and Clark heard Clouse's father yelling at her to stop and to let go. They looked back and saw Clouse running along and trying to get into the car. The car door on the driver's side was open. Her father was chasing her. Neither Gordy nor Clark had any idea that Clouse was trying to get into or had gotten into the car until they heard her father yelling. As soon as Clouse was away from the car, they stopped and Clark ran back to close the open car door because it was on her side of the truck. Clouse claims that she was in the car and that somehow she was thrown clear. However, a neighbor who witnessed the incident, Gordy and Clark all say that Clouse was standing by the side of the street. Clouse also says she was beinging dragged with one foot out of the car, yet no one, including Clouse, noticed any scrapes or blood on her feet. Clouse's parents describe these events quite differently from Clouse. She also claims that Gordy pressed the stun gun against her stomach when he fired it. However, she was not rendered unconscious and she did not notice any burn or bruise on her stomach. A 200,000 volt stun gun is only effective if in direct contact with the body and it renders the victim unconscious and causes extensive bruising and burning.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Banking, enter a Final Order dismissing the Administrative Complaint against David Gordy individually and as owner of Tracers. DONE and ENTERED this 13th day of July, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 13th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-0011 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of State, Division of Licensing Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(2) and 2(3). Proposed findings of fact 3-5 and 8-12 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 6 and 7 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 13 is irrelevant. COPIES FURNISHED: Henri C. Cawthon Assistant General Counsel Department of State, Division of Licensing The Capitol, MS #4 Tallahassee, FL 32399-0250 David B. Gordy c/o Tracers 7135 Beach Boulevard Jacksonville, FL 32216 Honorable Jim Smith Secretary of State The Capitol Tallahassee, FL 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL-02 Tallahassee, FL 32399-0250
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Transportation, (Department), was the state agency regulating the utilization of the state highway system by commercial vehicles. The Petitioner, Consolidated Freightways, (Consolidated), is a long haul interstate carrier operating in forty-eight states, including Florida. It has a freight terminal in Brooksville, Florida, a city approximately 11 miles west of I-75 which it has used since December 1, 1986. On October 24, 1990, Andrew J. Gay, Jr., Petitioner's Southern Area Safety Supervisor, requested tandem trailer access to its terminal facilities in Brooksville, via a route over State Road 50 from its intersection with I-75 to the old Dade City highway, then over that road to the terminal. The application indicated the proposed route would be used for on the average of 10 round trips per 7 day week, during the approximate hours of from 2:00 AM to Noon. Upon receipt at the Department, the file was forwarded to the District Operating Engineer in the Department's District VII office in Tampa, that office responsible for supervision of operations in the pertinent area, where it was given to Kevin Dunn, an assistant civil engineer, for evaluation. This was the first evaluation such as this that Mr. Dunn had made. In accomplishing the evaluation, he relied upon a department directive, TOPIC NO. 750-010-050-C; effective November 21, 1990, good to May 21, 1991, entitled, EVALUATION OF PROPOSED TANDEM TRAILER TRUCK ROUTES, in which, at PROCEDURE; (4)(B) 1 & 2, rejection criteria, including vehicular safety and highway safety considerations, are listed. Section (4) of the Directive deals with Terminal Access Route Evaluation Standards, and provides that when an operator of a terminal facility located more than 5 miles from the tandem trailer truck highway network submits a request for access routing, it shall be for the shortest route available, and shall be evaluated utilizing the rejection criteria outlined which indicate that a request may be rejected when one of the criteria for rejection are met, but shall be rejected when two or more are met. Mr. Dunn considered that one of the vehicular safety considerations was met as was one of the highway safety considerations. The former, he felt, authorizes rejection when: The total combined length of high accident locations exceeds 15% of the total length of the proposed route. In analyzing the stretch of highway involved, Mr. Dunn compared it with similar highway sections throughout the state for its accident frequency record. He found that each year there was a segment along the proposed route which appeared as a high accident segment area. He added these up to get the total length of high accident highway and got a figure that was 13% of the total route. Though the directive considered a minimum of 15% as disqualifying, Mr. Dunn concluded that 13% was close enough to qualify. The figure arrived at was not the required 15%, however. Mr. Dunn also considered that Highway safety consideration which read: d. The route does not provide a minimum passing sight distance of one-half mile at a maximum of three mile intervals. To qualify as a safe segment, there must be passing areas with a 1/2 mile sight distance, within 3 miles of each other. This road does not comply with that criterion. Mr. Dunn made field measurements of the route in question and found that heading westbound, the first passing zone started at mile 1.3 and ended at mile 1.8; the second started at mile 2.4 and ended at mile 2.5; and the third started at mile 4.1 and ended at mile 4.8. After that, westbound, there were no more 1/2 mile passing zones within the 3 mile maximum separation. Evaluating that stretch, while the 1.3 - 1.8 segment is 1/2 mile in length, it is not within 3 miles of the next qualifying passing segment. The same can be said for zone 4.1 - 4.8. Passing segment 2.4 - 2.5 is no good because it is not 1/2 mile in length. Looking at the eastbound route, there is one qualifying passing zone, between mile .4 and mile 1.0 and one between mile 3.8 and mile 4.3, but there are no more 1/2 mile passing zones within 3 miles of each other, so, in his opinion, the eastbound route does not qualify, either. Sometime later, Mr. Dunn measured the highway again based on information presented to him that the route had been re-striped. His second evaluation indicated the situation is now worse that it was before since fewer areas are now striped for passing. A 1989 report of the Transportation Research Board of the National Research Council, supports the method of evaluation Mr. Dunn used here. It increases the minimum passing distance to 3040 feet, a distance much greater than the 2640 feet, (1/2 mile) utilized in the Department's criteria. In addition, the Manual on Uniform Traffic Control Devices, published by the Federal Highway Administration, supports a 900 foot passing distance for passenger cars passing passenger cars. That's a much shorter distance than is needed for cars passing large trucks. Mr. Dunn concluded that taken alone, the passing distance rejection criteria would have been enough to disqualify the Petitioner's application, and when it was considered along with the close issue of the high accident percentage, he was satisfied that rejection was clearly appropriate. However, he did not make any recommendation to his supervisor as to what should be done with this application. He merely reported his findings to his supervisor, Mr. Buser, who made the decision to deny approval. Mr. Buser has serious doubts was to whether the intersection of State Road 50 and I-75 is a trouble spot. The high number of accidents utilized by Mr. Dunn in his analysis all took place at or near the intersection, a point argued by Mr. Gay. Mr. Buser is of the opinion that even if that intersection is not a trouble spot, the Department could prohibit tandem trailer trucks from exiting the interstate there in any case. This has not been done, however. According to Petitioner's representative, Mr. Gay, the requirement to break down the tandem rigs and tow them individually over the route to the terminal creates additional traffic and a resultant increased risk of accident. It also requires increased fuel usage, utilizes increased mileage, and results in increased environmental pollutions. Costs increase, wear to the equipment increases and the result is a loss in productivity. Allowing tandems to traverse the route to the terminal intact would, he claims, reduce traffic and avoid the other undesirable consequences he cited. No doubt it would. On May 13, 1991, Mr. Gay covered the route from I-75 to the terminal. He got behind a truck at I-75 and by the time they got to the first passing zone, the truck was doing 55 mph in a 55 mph zone. After that, there was no reason to pass, since 55 mph is the maximum speed permitted. This presupposes that all drivers observe the speed limit. Travel on the highways of this state show this to be an unjustified presumption. On May 20, 1991, he repeated the experiment and followed a truck to the first passing zone, by which time he was going 49 mph. These two experiments do not have major evidentiary value. Mr. Gay also noted some other pertinent facts regarding permitted activities on State Road 50, which went uncontradicted by the Department. Mobile homes up to 85 feet in length may be towed by a tractor; trailers up to 57.6 feet in length with a 12 month permit, (when the tractor is added, the total length is 68.6 feet); large boat haulers are allowed; and tandem trailers for household movers are allowed anywhere. Only tandem long haulers are not allowed on highway 50. These tandems trailers are 28 feet long each, with a 4 foot dolly between them. When a tractor is added, the total length is 71 feet, which is 2 1/2 feet longer than a large tractor and trailer. In light of the above, Mr. Gay contends that since all these other units are allowed, his should be allowed as well. He admits, however, that mobile homes and other oversize loads generally have escort vehicles preceding and following. He also recognizes that the handling characteristics of the tandem rig are different than those of the single unit trailer. Nonetheless, based on his research, he contends there are sufficient passing zones all along the route to make it safe. State guidelines, however, indicate to the contrary. Nothing above is intended to indicate that Petitioner is operating other than in a satisfactory manner. In its most recent rating by the United States Department of Transportation, the company was awarded a satisfactory evaluation. In addition, there is no doubt that numerous commercial enterprises served by the Petitioner would consider the opportunity to carry more cargo beneficial to their operations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that if such action is consistent with then existing legislation, the Petition by Consolidated Freightways, for a tandem trailer route over State Road 50 from I-75 to its terminal near Brooksville, Florida be denied. RECOMMENDED this 11th day of July, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1991. Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, MS - 58 Tallahassee, Florida 32399-0450 Andrew J. Gay, Jr. Safety Supervisor Consolidated Freightways 5625 Carden Road Orlando, Florida 32810 Ben G. Watts Secretary Department of Transportation Hayden Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel D.O.T. 605 Suwannee Street Tallahassee, Florida 32399-458
Findings Of Fact In 1984 and for many years prior Petitioner held a Certificate of Qualification to bid on and be awarded contracts let by the Department. On April 10, 1984, Petitioner entered into a voluntary plea, and was convicted of a one-count criminal violation of Title 15, USC, Section 1, which is commonly known as "The Sherman Antitrust Act." The charge involved a public contract with the Florida Department of Transportation in which Petitioner received a complimentary bid from another contractor who was bidding on the same project which was awarded to Petitioner. This practice is commonly known as "bid rigging." The conviction took place in the U. S. Northern District Court of Florida. Petitioner would have submitted the same bid on this project without the benefit of the complimentary bid. 33 C.F.R, Part 16, provides for a maximum debarment on first conviction of 36 months by a federal agency. Petitioner was debarred by the Federal Highway Administration for only six (6) months based upon a review and determination of culpability of the Petitioner in the crime of which Petitioner was convicted. Immediately subsequent to December 17, 1984, Petitioner was declared acceptable for employment on highway projects which required approval or concurrence of the Federal Highway Administration. On June 18, 1984, Respondent revoked the Petitioner's Certificate of Qualification for a period of 36 months pursuant to Florida Statutes 337.165(2)(a). The only reason given for the revocation was the aforementioned conviction. With the exception of Petitioner, who has never had a decision rendered on a Petition for Reinstatement by Respondent, every contractor who has been debarred and/or had its Certificate of Qualification revoked by Respondent pursuant to Section 337.165, Florida Statutes, who has petitioned for reinstatement, has been reinstated by Respondent. Exhibit "A" hereto is a list of contractors who were debarred by Respondent and were reinstated. It was in the public interest to reinstate each of these contractors. It is in the public interest and the interest of the Respondent to build roads, build them at a good price, and have a competitive bidding system with integrity. Petitioner has promptly and voluntarily continued to pay its fine of $65,000 to the Federal Court. No payment of damages has ever been requested by the State as a result of the Petitioner's violation of state or federal antitrust laws. The Petitioner notified the Respondent within thirty (30) days after his conviction of the contract crime. Petitioner has the manpower, equipment, financial resources, and contracting experience to meet the Respondent's requirements in those areas for the purpose of a Certificate of Qualification. Howard H. Hewitt became affiliated with Square D Contracting Company in 1967 when he acquired a minority interest in the company. He subsequently increased that interest to 50 percent. In 1980 he acquired the remainder of the stock and changed the name of the company to Hewitt Contracting Co., Inc. In 1980 the Florida Attorney General's Office commenced an investigation of bid rigging by road contractors. In February 1983 the Attorney General's Office subpoenaed Hewitt to appear under their Civil Investigative Demand procedures and give evidence about his knowledge of bid rigging in Florida. He appeared and, on the advice of counsel, refused to give testimony claiming protection under the Fifth Amendment. By Court Order, Exhibit 8, dated June 24, 1983, Hewitt was directed to give testimony to the Florida Attorney General under grant of immunity from criminal prosecution and from any civil penalty as provided in s. 542.21(1), Florida Statutes (1981), as to those transactions about which he testifies. In compliance with that order he submitted documents and testified before assistant attorneys general three times. A grant of immunity by the Florida Attorney General's Office would not shield Hewitt from federal prosecution. Following the filing of charges by the Federal District Attorney, Hewitt provided testimony to federal officials several times regarding his knowledge of contract crimes, dropped his membership in the Florida Road Builders Association, started using a different hotel during his appearances in Tallahassee, and limited his contacts with fellow contractors to those necessary to conduct business. In a subsequent damage trial brought by the Attorney General's Office against Ezelle Construction Company, Hewitt advised both parties that he would testify for neither and, upon advice of counsel, would claim the Fifth Amendment if subpoenaed. Neither side subpoenaed Hewitt. The jury found Ezelle not liable for damages as claimed by the Attorney General. The only witness called by Respondent, Assistant Attorney General Bayard W. Heath, testified that the critical part of the bid rigging investigation in which he was involved occurred in 1983 at which time Hewitt asserted the Fifth Amendment privilege and caused a change in the investigation plans of the antitrust division. When Hewitt's counsel in January 1985 advised Heath that Hewitt would take the Fifth Amendment if subpoenaed to testify in the civil damages suit brought against Frank Ezelle, et al., he released Hewitt from the subpoena and did not attempt to enforce the subpoena. Petitioner presented one rebuttal witness, the attorney who represented Hewitt during the civil investigative demand procedures by the antitrust division of the Attorney General's Office. He testified that he was never advised by Heath or any other attorney from the Florida Antitrust Division that there was a critical period during which Hewitt's testimony was wanted, or that they were in any manner dissatisfied with the cooperation given by Hewitt after the grant of immunity. This witness also testified that an offer by Hewitt to settle any charges against him by an offer to pay damages to the state was flatly rejected by the antitrust division and that he was told that if Hewitt cooperated with the antitrust division they would decide after the fact what action they would take against petitioner. Prior to the revocation of its Certificate of Qualification in 1984, Square D and subsequently Hewitt Contracting Co., Inc., enjoyed a reputation as a competitive bidder who completed projects in a timely and professional manner. Two witnesses employed by Respondent in the area of Petitioner's headquarters opined that reinstatement of Petitioner's Certificate of Qualification would enhance the road building and construction work in Florida by the addition of Petitioner as an active participant in the bidding process. Subsequent to the conviction in the Federal Court Petitioner prepared a Code of Conduct for Employees of Hewitt Contracting Company (Exhibit 4) and distributed this to all personnel involved in preparing bids for Petitioner. Additionally, Howard H. Hewitt personally approves all bids submitted by Petitioner and supervises those preparing these bids. Howard H. Hewitt expressed remorse about the company's prior activity leading to the conviction and is committed to ensuring that it never occurs again.
The Issue Whether the Petitioner, Willis Phillips, may challenge the specifications of the invitation to bid at issue in this proceeding? Whether the Petitioner has standing to challenge the Department of Health and Rehabilitative Services' proposed award of lease number 590:2166 to the Intervenor, Rutherford Rentals, Inc.?
Findings Of Fact The Department issued an Invitation to Bid for Existing Facilities, lease number 590:2166 (hereinafter referred to as the "ITB"), seeking to rent office space in Madison, Florida. Responses to the ITB were to be filed with the Department by 2:00 p.m., March 6, 1990. Included as part of the ITB was a map of the City of Madison (hereinafter referred to as the "Map"). Joint Exhibit 1. On page 1, paragraph 3, of the Bid Submittal Form which was included as part of the ITB it was indicated that "[s]pace to be located in Madison, Florida within boundaries depicted in the attached map (Attachment B.) Bidder to mark location of site on map Attachment B." The ITB referred to the Map as a "Map showing bid zone boundaries." See page 4 of the ITB. The Map was labeled as "Attachment B" and included the following language at the bottom of the Map: "WITHIN CITY LIMITS WITH EXCEPTIONS OF UNDESIRABLE LOCATIONS AS INDICATED." The Map included two areas within the City of Madison which were cross- hatched. At the bottom of the Map the word "UNDESIRABLE" had been written in black. This word only appears below the larger of the two cross-hatched areas. The Department intended to exclude any office space located within both of the cross-hatched areas on the Map. The Petitioner spoke by telephone with Robert Smith, a Facilities Services Managers Assistant for the Department, prior to submitting a response to the ITB. The Petitioner initiated the conversation. Based upon this conversation, the Petitioner was aware that property located within either of the cross-hatched areas on the Map was excluded from consideration under the ITB. The property which the Petitioner intended to offer to the Department in response to the ITB is located in the smallest of the two cross-hatched areas on the Map. The Petitioner was informed by Mr. Smith that the property located within the smaller cross-hatched area was excluded as undesirable. Mr. Smith informed the Petitioner that he could not submit a response to the ITB offering to rent property located in the small cross-hatched area. The exclusion from consideration of property located in the areas within the City of Madison which were located in the two cross-hatched areas of the Map could have been more clearly designated. The Department's designation of the excluded areas, however, was not ambiguous. It was clear that the Petitioner's property was located in an excluded portion of the City of Madison and that the Petitioner was aware of the exclusion of his property. Despite the Petitioner's knowledged that his property was located within an excluded area, the Petitioner submitted a response dated March 6, 1990, to the ITB proposing property located in the smaller cross-hatched area. In the Petitioner's response to the ITB he did not indicate the location of his property on the Map. Instead, the Petitioner submitted a different map of a portion of the City of Madison which included his property. Rules 10-13.006 and 10-13.007, Florida Administrative Code, require that protests of the bid specifications of the Department must be filed within 72 hours of receipt of notice of the bid specifications. The ITB did not indicate that persons adversely affected by the ITB could challenge the specifications of the ITB or that any such challenge had to be filed within 72 hours of receipt of notice of the ITB. The following statement appears of the last page of the Bid Submittal Form included with the ITB and submitted by the Petitioner: I hereby certify as owner, officer, or authorized agent that I have read the Invitation to Bid Package and all its attachments, and agree to abide by all requirements and conditions contained therein. . . . This certification was signed by the Petitioner. The Department decided to award the lease to the Intervenor. The Department determined that the Petitioner's bid should be rejected because the proposed property was located in an excluded area. The Petitioner filed a Formal Protest and Petition for Formal Administrative Hearing on April 23, 1990, with the Department. The Petitioner challenged the Department's proposed award of the lease to the Intervenor and asserted that he was the lowest and best bidder. The Petitioner did not challenge the specifications of the ITB. The Department filed a Motion to Dismiss on Mazy 4, 1990. The Petitioner filed a Motion for Leave to File Amended Petition and an Amended Formal Protest and Petition for Formal Administrative Hearing on May 14, 1990. For the first time, the Petitioner challenged the specifications of the ITB.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order granting the Department's Motion to Dismiss and dismissing with prejudice the Formal Protest and Petition for Formal Administrative Hearing filed by the Petitioner. DONE and ENTERED this 12th day of July, 1990, in Tallahassee, Florida. LARRY J. SARTIN 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 12th day of July, 1990. APPENDIX The Petitioner and the Department have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1-2 See 9. 3-5 Not supported by the weight of the evidence. 6 6-7. 7 and 11 Not relevant. 8-10 and 12-15 These proposed findings are consistent with Ms. Goodman's testimony. Ms. Goodman's opinions, however, are not supported by the weight of the evidence. Although this proposed finding of fact is generally true, the weight of the evidence failed to prove that the Petitioner was not aware that both cross-hatched areas were excluded areas. See 9. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2 and hereby accepted. 3 5-8. 4 7. 5 6. 6 12. 7 9. 8 13 and 17. 9 4. 10 12. 11 17. 12 15. 13 16. 14 18 and hereby accepted. 15 20. 21 and hereby accepted. 22 and hereby accepted. Hereby accepted. Cumulative. Hereby accepted. Copies Furnished To: John C. Pelham, Esquire Gary Walker, Esquire Post Office Box 13527 Tallahassee, Florida 32317-3527 John L. Pearce, Esquire District Legal Counsel Department of Health and Rehabilitative Services 2639 North Monroe Street Tallahassee, Florida 32303-2949 Clay A. Schnitker, Esquire Post Office Drawer 652 Madison, Florida 32340 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0500
