Findings Of Fact On February 27, 1984, Respondent, Department of Transportation, (DOT), advertised for letters of submittals by pre-qualified surveying firms interested in bidding on the project in question. This project was for miscellaneous survey work in the amount of $100,000.00 to be performed at the will of the DOT District II Engineer throughout the District II area. The work was to be done as need for it arose rather than on projects already existing and specifically identified. It was to be primarily for overflow surveying work that could not be handled by regular state survey crews. DOT District II covers North Central Florida from the Georgia border on the North to a line extending from just south of Jacksonville on the East, toward the West below Gainesville, and ending just at Yankeetown on the West. The Western boundary is a line extending from Georgia to the Gulf of Mexico approximately twenty five miles East of Tallahassee. The District is headquartered in Lake City. Four letters of intent were received from prospective bidders of which one was disqualified immediately because it had not been pre-qualified. The remaining three bidders were: Petitioner (Hale) L. L. Lee & Associates (Lee), and Bennett R. Wattles & Associates (Wattles). Thereafter, these three prospective bidders were evaluated according to a selection process which is multi-stepped. The first step involves an evaluation of the submitted letters of intent to determine the prospect's capability to meet schedules and do the anticipated work. These evaluations, made at the District headquarters and received in Tallahassee on March 20, 1984 resulted in the following scores assessed: (1) Hale 33 (2) Lee 37 (3) Wattles 33. To those scores, numbers are added for work load and location by the Contractual Services Office on an objective basis which resulted in new scores of: (1) Hale 58 (2) Lee 62 (3) Wattles 56. Since at this point there were only three prospective bidders left, DOT requested proposals from all three. Proposals were submitted by all three concerns on or about June 18, 1984. When received, they were sent to District II central officer personnel for evaluation by a three man committee convened there and consisting of the Deputy District Engineer, the District Location Engineer, and the Assistant District Design Engineer. At this point, Lee withdrew from the competition due to outside considerations leaving only Hale and Wattles. These two firms were rated by the committee as follows: Technical Plan Management Plan Project Schedule Other Total Hale 35 25 18 8 86 Wattles 35 25 18 6 84 The two point edge awarded to Hale by the committee was due to the fact that its office was located in the center of the district at Lake City whereas Wattles' office being on the edge of the district in Jacksonville would be inconvenient. At this point, though fee schedules had been received, they were not viewed by the District Committee. The proposals once evaluated by the District Committee are then evaluated by the Technical Committee in Tallahassee which consists of the Chief of Pre-Construction and Design, the Bureau Chief of Aerial Photography (for survey work), and the District Design Engineer. When this evaluation was completed, the combined score of the District and Technical Committees averaged: Hale 75, and Wattles 82. At this point, the complete evaluation report is furnished to Mr. Berry and the preference for Wattles was based on the facts that over 50 percent of the projected work under the contract would exist in Duval County and there are already three DOT survey crews located permanently in Lake City. When this committee report was published, the committee did not know of the price proposals submitted by the parties. This information, in its pertinent particulars, shows that the average 5-man party rate proposed by Hale was $619.83 and by Wattles was $650.00. The analysis of price proposals submitted by all three original bidders, completed in July, 1984, reflected that Hale was low bidder in every category of crew and mileage criteria. When this analysis was furnished to the Technical Committee, it came back with a recommendation that the best cost value would be furnished by Petitioner, Hale. Thereafter, the proposal was submitted to the Selection Committee which consisted of the Secretary, the Assistant Secretary, and the Deputy Assistant Secretary, all of DOT, and Mr. Berry, for final selection. The selection is made considering all the evaluation committee work and the price quotation. The Selection Committee met on August 29, 1984. It considered the evaluation report sheet of the Technical Committee along with all other relevant information and the selection is made based on the answers to questions asked by the committee members. Here, Wattles was selected based on the conclusion that more than 50 percent of the prospective work under this contract was to be done in Duval County and that there were already three DOT survey teams located in Lake City. No DOT survey teams are located in Duval County. On this basis, Wattles would be under 30 miles for the majority of the trips and would charge $600.00 per day for a 5-man party. On the other hand, for more than 50 percent of the work, Hale would have to come from Lake City, a trip within the 51-75 mile range and his fee for a 5-man party for that distance is $661.00 per trip. Therefore, even though Hale's fees are uniformly lower for equivalent trips, because his trips would be longer for a majority of the work, his overall cost to the DOT would be greater. Utilizing the expected trip distances and numbers, a weighted average was computed to demonstrate the relative costs. These figures showed that for all work under the contract, Hale's price would be $630.12 and Wattles' would be $618.75 per trip. On the basis of this information and, inter alia, the fact that DOT survey teams have until now done most of the work outside of Duval County, the Selection Committee decided to award the contract to Wattles and the parties were so notified. The weighted cost figures were calculated by Mr. Berry on a hand-held calculator during the Selection Committee meeting at the request of the Secretary. All other calculations and analyses of costs were done by Mr. Alligood, a professional statistician. Information to the fact that in excess of 50 percent of the work would be done in the Duval County area was not communicated to the prospective bidders at the time the proposals were solicited. While the terms of the advertisement are not in evidence, it may be presumed that the advertisement either expressly or impliedly indicated the work was to be done throughout District II. No indication was given to the bidders that weighted consideration would be given to the historical information on prior activity as to the location of most of the work. This factor was inserted into the framework of the consideration only after the evaluation and selection process had progressed to the Selection Committee level, the last step in the process before award.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Human Development Center (HDC) is a nonprofit corporation dedicated to providing services to mildly and moderately mentally retarded clients received primarily through the respondent Department of Health and Rehabilitative Services (HRS). The services provided include transportation, education, and training for the development of daily living skills, recreation skills and work-related skills. A one-year written contract existed between HDC and HRS for the provision of and payment for the professional services of education, training and transportation for HRS clients. The termination date of this contract was September 30, 1900. As early as February of 1980, negotiations began as to the rates for a new written contract for the provision of these same services for the following year beginning on October 1, 1980. In August of 1980, petitioner was advised of the Grant Review Committee's recommendations concerning the rates which HRS would allow for the provision of services during the next contract year. A special audit review team conducted an analysis of petitioner's facility and found insufficient ground for awarding levels of funding in excess of those recommended by the Grant Review Committee. By letter dated September 22, 1980, petitioner's Executive Director was notified by respondent that respondent was in the process of preparing the contract for the following year and the contract amounts were stated. In a letter dated September 25, 1980, petitioner's Executive Director notified respondent that the proposed contract rates were unacceptable and advised respondent of the rates it would charge effective October 1, 1980. This letter stated: "Should you choose to have your HRS clients continue in the Sunrise Program beyond September 30th, 1980, you will be billed at these rates." Based upon petitioner's refusal to enter into a contract with respondent, respondent orally advised petitioner on September 29 or 30, 1980 that HRS clients would be removed from petitioner's facility. On September 30, 1980, respondent's District Program Supervisor for Developmental Services went to the petitioner's facility for the purpose of removing those clients in the custody of HRS and advising other clients of the status of the contract between petitioner and the respondent. Many clients expressed a desire to remain at the petitioner's facility. Alternative placement plans were pursued by respondent during the month of October, 1980. Petitioner's Executive Director was advised that payments for room and board, as well as for additional other services on a pre-authorized basis, would be provided for HRS clients remaining at the facility. This agreement was affirmed in writing by letter dated October 2, 1980, which stated: "To facilitate counselling clients as to their rights and plan for placement in other facilities, HRS will continue to provide Long Term Residential Care funds. These monies will provide for basic care and supervision. Any additional services will be purchased on an individual client basis and is to be pre-authorized by the social worker. (Example: transportation of employed clients to place of employment through reimbursement at 19 cents a mile.) Expiration of the 1979-80 Purchase of Services Contract prohibits any payment by HRS of services previously covered by that contract." Respondent did pay petitioner for its clients' room and board during October of 1980 in spite of the fact that no written contract existed. Although it never sought pre-authorization for the provision of additional services, petitioner continued to provide the additional services of education, training and transportation to HRS clients. Effective November 1, 1980, petitioner and respondent did enter into a new contract for the provision of such services for the following year. On or about November 3, 1980, petitioner submitted to respondent five invoices for the payment of services performed during October of 1980. Respondent refused payment by letter dated November 18, 1980, stating, in part: "Lack of a contract between HRS and the Human Development Center during the month of October prohibits payment of the purchase of service invoices submitted with your letter of November 3, 1980. . ." After various requests by petitioner for the payment of invoices for services provided in October, 1980, were denied by the respondent on the basis of lack of a written contract for that month, HDC petitioned for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The petition was referred to the Division of Administrative Hearings and that case was consolidated for hearing purposes with the instant case. Human Development Center v. Department of Health and Rehabilitative Services, DOAH Case No. 81- 2137, Recommended Order entered on March 10, 1982. In the course of discovery in DOAH Case No. 81-2137, respondent HRS denied the allegation in the petition that it had "no rules establishing how and under what circumstances emergencies will be declared in order to pay providers sums of money to which HRS claims that it would not otherwise be entitled." Respondent referred to two documents which "set out the criteria to be used for emergency certification of contracts pursuant to Sec. 287.057, F.S." The instant proceeding challenges these two documents as invalid rules.
The Issue The issue in this case is whether the Respondent, the Department of Insurance (the Department), has an unpromulgated agency rule not to reimburse routine defense fees at more than $85 per hour when providing for the defense of civil actions against state employees.
Findings Of Fact The Petitioner, Richard L. Windsor (Windsor), was an attorney employed by the Department of Environmental Regulation (DER, now called the Department of Environmental Protection, or DEP) when he and another DER employee were named along with the DER as defendants in a counterclaim filed in 1995 in a lawsuit (the Coxwell case) that had been brought by DER, through Windsor as its attorney of record, in state circuit court in Okaloosa County to remedy alleged intentional violations of state environmental laws and regulations. The "counterclaim" initially was not served on Windsor, and DER declined Windsor's request to defend him at that time. Instead, it was decided to ignore the "counterclaim" against Windsor until it was served on him. In 1996, after Windsor terminated his employment with DEP, the "counterclaim" was served on him. Windsor requested that DEP defend him, and DEP agreed to refer the matter to Risk Management. Risk Management agreed to defend Windsor and in September 1996 assigned the defense to an Okaloosa County attorney named Jim Barth, who agreed to an hourly rate of $75. Barth telephoned Windsor to discuss the case, and Windsor suggested that Barth investigate an out-of-state property rights organization Windsor said was sponsoring and financing the claim against him and the other DEP employee. Barth rejected Windsor's suggestion. Windsor was discomforted from Barth's decision but decided not to press the issue. In a subsequent meeting with Barth, Windsor suggested that Barth should assert the government employee defense of qualified immunity from suit. It seemed to Windsor that Barth accepted the idea. In May 1997, with trial set for July, Barth telephoned Windsor to tell him that trial was set for July 1997, and a court-ordered mediation conference was scheduled for June 1997. Windsor asked about the immunity defense and felt that Barth tried to avoid answering the question. At the mediation conference in June 1997, Barth and Risk Management made a nominal settlement offer, while DEP's lawyer refused to make any offer of settlement on the ground that the counterclaim was frivolous. Although Barth's settlement offer was rejected, Windsor became very concerned about the quality of Barth's representation. He also established through conversation during the course of the day that Barth had not asserted the immunity defense on his behalf. With trial set for July 1997, Windsor decided that he no longer could rely on Barth but would have to raise the defense on his own. Windsor consulted Davisson F. Dunlap, Jr., a Tallahassee attorney with the Carlton Fields law firm. Windsor knew Dunlap from Dunlap's representation of another DER employee who had been named along with DER as a defendant in a counterclaim filed in a previous lawsuit that had been brought by DER, through Windsor as its attorney of record (the Dockery case). Windsor was impressed with Dunlap's work on the Dockery case, including his filing of a motion for summary judgment on behalf of his client on the defense of qualified governmental immunity. Dunlap explained that his hourly rate at Carlton Fields was $175, and Windsor agreed to hire Dunlap at that rate to help get Windsor's defense where Windsor and Dunlap thought it should be. Based on this understanding, Dunlap immediately began preparing a motion for summary judgment. At Windsor's request, Dunlap presented his work product to Barth, who agreed to use it to file a motion for summary judgment. When Windsor learned that Barth missed the court's deadline for filing motions, Windsor became completely dissatisfied with Barth and eventually requested that Risk Management reassign his case from Barth to Dunlap. Risk Management agreed, contacted Dunlap, and entered into a Legal Services Contract with Dunlap's new law firm at the same $85 hourly rate in the Pennington law firm's contract. At some point (probably before Dunlap and the Carlton firm actually entered into the Legal Services Contract with Risk Management), Dunlap reported to Windsor that the contract would be for $85 an hour and that the Carlton firm would not allow Dunlap to undertake representation at that rate of pay. Windsor, who was happy just to have gotten Dunlap substituted for Barth, assured Dunlap that Dunlap would receive his full $175 an hour, as initially agreed between them, and that Windsor would pay Dunlap the difference of $90 an hour after payment of $85 an hour from Risk Management under the Legal Services Contract. Neither Dunlap nor Windsor advised Risk Management of the agreement for the payment of Dunlap's full $175-an-hour fee after Risk Management's Legal Services Contract with the Carlton firm at $85 an hour. However, Windsor had in mind that, at some point in the future, he would raise the issue and be able to persuade Risk Management to contribute more towards the payment of Dunlap's $175-an-hour fee. In October 1997, Windsor began an exchange of correspondence with Risk Management that went on for several months. While touching on a number of different topics, Windsor's primary initial concern in this correspondence was the payment of Dunlap's fees for work done on Windsor's case before Dunlap's Legal Services Contract with Risk Management. Risk Management agreed without much question (notwithstanding Windsor having retained Dunlap without notice to Risk Management), since Risk Management determined that Dunlap's work did not duplicate much of Barth's. When Risk Management indicated its intent to pay Dunlap for the work at the contract rate of $85 an hour, Windsor advised Risk Management for the first time that Windsor was obligated to pay Dunlap for the work at the rate of $175 an hour; Windsor requested that Risk Management "make him whole" by paying Dunlap's full fee of $175 an hour. However, Windsor did not make it clear to Risk Management in this correspondence that he also wanted Risk Management to pay Dunlap $175 an hour for work done after Dunlap's Legal Services Contract with Risk Management. Neither Windsor nor Dunlap made it clear to Risk Management either that Dunlap also had a contract with Windsor, in addition to the Legal Services Contract, for work done by Dunlap after Dunlap's Legal Services Contract with Risk Management, or that the additional contract was for $175 an hour, which obligated Windsor to pay Dunlap the difference of $90 an hour after payment of $85 an hour from Risk Management under the Legal Services Contract. By letter dated July 1, 1998, Risk Management's Director, R.J. Castellanos, advised Windsor that Risk Management would not pay Dunlap more than $85 an hour for the work done before the Legal Services Contract. The letter explained that review did not disclose support for Windsor's contention in correspondence that Risk Management was negligent, requiring Windsor to retain Dunlap at $175 an hour prior to the Legal Services Contract. It pointed out that Windsor retained Dunlap at the time without any notice to Risk Management and that Risk Management was "deprived of any opportunity to contract with a firm at a negotiated rate" for those services (as it was able to do for subsequent services when it entered into the Legal Services Contract with Dunlap's firm). For those reasons, the letter explained, Risk Management "reimbursed you at an $85.00 rate, which is the maximum amount we pay as routine defense fees." Windsor contends that the latter quotation is, or is evidence of, an unpromulgated Division rule. The intent of the statement in Castellanos' letter was to explain why, under the circumstances, Risk Management would not reimburse Windsor more than $85 an hour for the fees he incurred for work Dunlap did before the Legal Services Contract; it was not intended to even address Dunlap's fees after the Legal Services Contract. At the time the statement was made, Castellanos did not realize there was any issue as to payment of Dunlap's fees for work done after the Legal Services Contract. The statement in Castellanos' letter was not a statement of general applicability. Risk Management generally does not reimburse defense fees; rather, it negotiates contracts directly with lawyers to provide those services and pays the fees directly to the lawyer under contract. Rather, the statement in Castellanos' letter was intended to explain that, under the circumstances, Risk Management was not going to reimburse more than maximum amount it pays attorneys with whom Risk Management contracts directly. As a matter of fact, Risk Management has approximately 250 open-ended contracts for legal services with law firms all over Florida. (It is not clear from the evidence when these contracts were negotiated, or which are still in use.) The hourly rates for those contracts range from a low of $65 an hour to a high (in approximately five or six of the 250 contracts) of $85 an hour for routine defense cases. (Hourly rates for trademark and copyright specialties are $150 an hour.) These included the $85-an-hour legal services contracts with Dunlap, once as a member of the Pennington firm and again as a member of the Carlton Fields firm. The evidence also did not prove that Risk Management has an unpromulgated rule not to exceed a fee of $85 an hour in negotiating directly with attorneys for legal services contracts for routine defense cases. The evidence was that Risk Management considers itself to be bound by Section 287.059(7), Florida Statutes (1997), and Florida Administrative Code Rule Chapter 2- 37 when contracting with attorneys for legal services. The maximum fees allowed by the statute and those rules exceed $85 an hour for routine defense cases. In addition, the statute and rules allow agencies such as Risk Management to exceed the maximum standard fees under certain circumstances. See Conclusion of Law 21, infra. Risk Management interprets Section 287.059(7), Florida Statutes (1997), and Florida Administrative Code Rule Chapter 2- 37 to require it to negotiate fees below the maximum standard fees. Id. When negotiating with a lawyer or law firm, Risk Management attempts to utilize the leverage it enjoys from the ability to offer lawyers an open-ended contract with the possibility of volume business contract to negotiate for the lowest possible fee for quality services. To date, these legal services contracts have been for $85-an-hour or less for routine defense cases. But it was not proven that Risk Management has established an $85-an-hour maximum for routine defense in conflict with the maximum standard fees established in Rule Chapter 2-37. Windsor seems to make a vague argument that Section 111.07, Florida Statutes (1997), which requires an agency such as Risk Management to reimburse a prevailing employee a "reasonable" attorney fee when the agency declines to provide legal representation to defend the employee, and common law (which Windsor does not elaborate), requires Risk Management to reimburse him for Dunlap's services and that such reimbursement is not limited by Section 287.059(7), Florida Statutes (1997), and Florida Administrative Code Rule Chapter 2-37. Windsor seems to further argue that the statement in Castellanos' letter was generally applicable to establish the amount of reasonable attorney fees reimbursable under Windsor's legal arguments. But it was not apparent that Windsor was making these arguments until post-hearing submissions in this case. Clearly, Risk Management does not agree with Windsor's arguments (the merits of which are not subject to determination in this proceeding); more germane to this proceeding, Risk Management never understood or considered such arguments at the time of the statement in Castellanos' letter, and Castellanos clearly did not intend the statement in his letter to be generally applicable to establish the amount of reasonable attorney fees reimbursable under Windsor's legal arguments.
The Issue Whether various statements or policies attributed to the Department of Health (Department) and the Board of Medicine (Board) in connection with the assessment of costs related to the investigation and prosecution of disciplinary cases coming before the Board are unpromulgated rules in violation of Section 120.54(1)(a), Florida Statutes.1
Findings Of Fact Petitioner is a Florida licensed physician, who received his Florida medical license numbered ME 46054 in 1985. He currently practices medicine at 620 Eichenfeld Drive in Brandon, Florida. Petitioner is currently the subject of a pending disciplinary action initiated by the Department against his medical license. The disciplinary case is styled Department of Health vs. Mohamed I. Abdel-Aziz, Department of Health Case No. 2000-07849, DOAH Case No. 02-4429PL. On June 2, 2003, a Recommended Order was issued in DOAH Case No. 02-4429PL, finding that Petitioner violated Subsection 458.331(1)(t), Florida Statutes. Petitioner is subject to the assessment of the costs related to the investigation and prosecution of his case pursuant to Section 456.072(4), Florida Statutes, should the Board adopt the finding of a violation. Neither the Department nor the Board has promulgated a rule defining "costs related to the investigation and prosecution of the case." Petitioner has challenged the validity of the following statements, which he attributes to Respondents. Complaint Cost Summary. Costs of the investigation and prosecution that are incurred as a part of a license disciplinary case include the costs of the time (salary and benefits) spent by employees of the Department of Health Prosecution Services Unit. Costs of the investigation and prosecution that are incurred as a part of a license disciplinary case include the "overhead expense" of the Prosecution Services Unit. Costs of the investigation and prosecution that are incurred as a part of a license disciplinary case include the "OPS expense" attributable to the Prosecution Services Unit. Costs of the investigation and prosecution that are incurred as a part of a license disciplinary case include the salary and benefits paid by the Department of Health on behalf of employees who have no time keeping responsibility with respect to the time tracking maintenance system of the Department of Health. Costs of the investigation and prosecution that are incurred as a part of a license disciplinary case include the salary and benefits of the attorneys who have been assigned responsibility for and/or who have provided services in connection [sic] a license disciplinary case. Costs of the investigation and prosecution that are incurred as a part of a license disciplinary case include the "expense" of the individual components of the Prosecutions Services Unit. Time Tracking Report. Methodology for Calculating Rate for Billable Hours (pre-January 13, 2003) assessed as costs of the investigation and prosecution. The Department of Health, Board of Medicine procedure for the assessment of costs of the investigation and prosecution of a licenses [sic] found to have violated the disciplinary provisions of Chapters 456 and 458, Florida Statutes, as set forth in the Notice of Voluntary Dismissal of Paragraph (G) of the Prayer for Relief of the Administrative Complaint. Methodology for Calculating Rate for Billable Hours (effective January 24, 2003) assessed as costs of the investigation and prosecution. Notice Regarding Assessment of Costs which stated: Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 456.074(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to other discipline imposed. The Department and its predecessor agencies, the Agency for Health Care Administration and the Department of Business and Professional Regulation, have been keeping data of direct and indirect expenses incurred by the Department since at least 1988. Historically, the reason this cost data has been kept is for use in billing the various boards for the amount spent in investigating and prosecuting each board's cases. Section 456.025(8), Florida Statutes, and its predecessors Sections 455.220 and 455.587, Florida Statutes, require that the Department maintain an accounting, by profession, of the expenses incurred by the Department to regulate those professions. These expenses are then, to the maximum extent possible, charged back to the accounts of each regulated profession. Direct expenses include, but are not limited to, costs for investigations, examination, and legal services. For indirect expenses, the Department is to proportionally allocate to the boards the expenses incurred by the Department in the performance of its duties with respect to the regulation of each of the professions. The Department is required to maintain sufficient records to support its allocation of agency expenses and to provide each board an annual report of revenues and direct and allocated expenses related to the operation of that profession. The Department or its predecessors have been keeping data of the costs related to the investigation and prosecution of professional license disciplinary cases. The collection of data includes determining an hourly rate for those persons whose activities are directly attributable to individual and specific cases and an hourly overhead rate for administrative costs and indirect costs. The overhead rate includes salaries plus benefits of clerical staff, rent, office supplies, OPS expense, telephone services, utilities, copier maintenance fees, and other similar expenses. From 1994 until January 13, 2003, the methodology for calculating the overheard hourly rate, called "Methodology for Calculating Rate for Billable Hours," provided as follows: Determine the number of timekeepers and non-timekeepers. Determine the rate for non-timekeepers (annual rate plus + benefits [27.5%]) ? number of timekeepers ? 2080 hours = hourly rate. Determine the rate for expenses (budget expenses and OPS) from operating budget ? number of timekeepers ? 2080 = hourly rate. Add results of steps 2 & 3, for total hourly rate per timekeeper. All employees of the Department's Medical Quality Assurance (MQA) Enforcement Program, which consists of the Consumer Services Unit, the Investigative Services Unit, and the Prosecution Services Unit, are designated either as timekeepers or non-timekeepers. Timekeepers are those employees who perform activities directly related to specific cases. All other employees are considered to be non-timekeepers, and their salary and benefits are part of the costs that are apportioned within the overheard rate calculation. The hourly rate for a timekeeper is calculated by dividing that timekeeper's salary plus benefits by the total annual hours. Under the pre-January 13, 2003, methodology, the total number of hours used was 2080. Benefits were determined based on 27.5 percent of the timekeeper's annual salary. In October or November 2002, James D. Hentz, the Financial Manager for the trust fund of the MQA section of the Department saw this methodology for the first time. He believed that the use of 2080 hours in the methodology was flawed because it included holidays, annual leave, sick leave, and non-billable administrative time, thereby, precluding any possibility of recovering all the costs. Mr. Hentz believed that using 1720 hours better represented the number of hours available to be worked and billed to specific cases, and he proposed that the methodology be adjusted by using 1720 hours instead of 2080 hours. The adjusted methodology proposed by Mr. Hentz was disseminated to the enforcement program units of the Department by Charlene G. Willoughby to be effective January 13, 2003. The methodology, also entitled "Methodology for Calculating Rate for Billable Hours" provided as follows: Determine the number of timekeepers and non-timekeepers. There are 1720 billable hours per year (2080 possible hours worked minus average annual, sick and holiday leave). Determine the rate for non-timekeepers (annual rate + benefits [28%]) ? number of timekeepers ? 1720 hours = hourly rate). Determine the rate for expenses (budget expenses, including OPS) from operating budget ? number of timekeepers ? 1720 hours = hourly rate Add results of steps 3 & 4 for total hourly overhead rate per timekeeper. Add overhead rate to hourly salary + benefits of each timekeeper for individual timekeeper rate. This methodology proposed by Mr. Hentz differed from the previous methodology by the use of 1720 hours instead of 2080 hours and the use of 28 percent of the annual salary to calculate benefits rather than 27.5 percent. These changes resulted in an increase in both the overhead hourly rate and the timekeepers' hourly rate, thereby, increasing the total hourly rate per timekeeper, which is also known as staff rate. The methodology that was disseminated on January 13, 2003, was not implemented by the Investigative Services Unit or the Prosecution Services Unit at the Department. On January 24, 2003, Mr. Hentz sent out another methodology for use in computing overhead and timekeepers' hourly rates. He drafted the methodology in a narrative form, which Ms. Willoughby converted to a format similar to the previous formulas. The January 24, 2003, methodology provides as follows: Determine the number of timekeepers and the non-timekeepers. There are 1720 billable hours per year (2080 possible hours worked minus average annual, sick and holiday leave). Determine the rate for non-timekeepers (annual rate + benefits [as reflected in the COPES Report] ? number of timekeepers ? 1720 hours = hourly rate. Determine the rate for expenses (budget expenses, including OPS) from operating budget ? number of timekeepers ? 1720 hours = hourly rate. Add results of steps 3 & 4 for total hourly rate per timekeeper. Add overhead rate to hourly salary + benefits of each timekeeper for individual timekeeper rate. The salary plus benefits associated with each individual position number for each employee is reported on the COPES Report. In calculating the timekeepers' hourly rate and the overhead hourly rate, the January 24 methodology uses the actual salary plus benefits from the COPES Report instead of calculating benefits by using a percentage of salary as was done in previous methodologies. Timekeepers maintain and submit a daily activity report (DAR) which identifies the cases on which they worked, the activities they performed, and the amount of time they spent in six-minute increments. The DARs are entered into a data system called the Time Track System, where that data is kept by timekeeper identification number, case number, activity, and time spent on each activity. The total hourly rate is also entered into the Time Track System so that the rate can be applied to the time spent on a case by each timekeeper. The total hourly rate is updated at least annually when the new spending plan or budget is issued. It is also reviewed quarterly to make adjustments for salary or benefit changes. The compilations of data from the Time Track System at issue are the Time Tracking Report and the Complaint Cost Summary. The Time Tracking Report is a detailed time accounting report and has two components, the Itemized Cost by Complaint and the Itemized Expense by Complaint. The Itemized Cost by Complaint itemizes the specific activities that have been performed on a specific case by activity code and description, the date of those activities, the timekeeper who performed the activities, the amount of time spent on those activities, and a staff rate for each timekeeper who worked on a specific case. The Itemized Cost by Complaint contains a column that reports "Cost," which is the time spent by a timekeeper for a particular activity multiplied by the staff rate. The Itemized Cost by Complaint is subtotaled by each unit in the MQA Enforcement Program and is finally totaled for all the time spent on a particular case to the date that the report is printed. The Itemized Expense by Complaint itemizes the expenses directly attributable to the specific case. Typical direct expenses would include expert witness fees, travel, and court reporting services. These expenses are ones for which an invoice has been received and paid for a specific expense on a specific case. The Complaint Cost Summary is a summary of the accounting information contained in the Time Tracking Report. It summarizes the total hours spent on a case, by unit, the cost per unit, and the expenses. The total reflected in the Complaint Cost Summary corresponds to the individual subtotals by unit, plus the expenses, which are detailed in the Time Tracking Report. When a specific case goes before the Board for entry of a Final Order that will impose some discipline, various procedures have been used to bring the data concerning the costs related to the investigation and prosecution of that case before the Board. The procedures have varied over time and type of case. For example, when the Board considers defaults and informal hearing recommended orders, it may be informed about the costs in one of several ways, including by written motion, ore tenus motion, or simple statement of the costs. Consent agreements may be considered for assessments of costs in other ways because the amount of the costs would be included in the consent agreement. In the past, cost summaries have not been presented to the Board in cases involving recommended orders; however, more recently cost summaries are being provided to the Board and may include additional materials such as an affidavit from Ms. Willoughby. In some cases, there have been motions to assess costs filed and in others there were oral presentations made to the Board regarding the costs. In the last 13 months, there has been no consistent procedure used by the Department to request the assessment of costs related to the investigation and prosecution by the Board. However, the Department has consistently included its direct and indirect expenses, including an attorney's time in its requests for costs. In Petitioner's disciplinary case, the Department originally requested the assessment of the costs related to the investigation and prosecution in the prayer for relief in the Administrative Complaint, Paragraph (G). Prior to the final hearing, the Department filed a Notice of Dismissal of Paragraph of the Prayer for Relief of the Administrative Complaint, stating that it was dismissing the request concerning the assessment of the costs for the investigation and prosecution of the case. The Department further included the following in the motion: Should the Board enter a final order imposing discipline in this matter, the [Department] intends to request the Board of Medicine to assess costs in the following manner: Upon entry of Recommended Order by the Division of Administrative Hearing, an appropriate Motion to Assess Costs shall be filed with the Board to be considered immediately following Board consideration of said Recommended Order. The motion shall provide [Dr. Abdel-Aziz] an opportunity to file timely written objections to the amount of costs incurred by the Petitioner related to the investigation and prosecution of the case. If a timely written objection to the assessment of costs incurred by the Petitioner related to the investigation and prosecution of the case is filed by [Dr. Abdel-Aziz], the Department shall request the Board to conduct a hearing on the assessment of costs. That hearing shall be conducted either after consideration of the Recommended Order and prior to entry of the Final Order disposing of the case or [sic] a part of a separate bifurcated proceeding if it is appropriate to enter a Final Order before the hearing can be conducted. If a disputed issue of material fact arises, then the matter concerning such dispute shall be forwarded to the Division of Administrative Hearings for a formal hearing. The Department has filed similar notices in at least two other cases before the Division of Administrative Hearings. The Board has not used a specific procedure in the manner in which it addresses the issue of costs related to the investigation and prosecution. It has considered written motions, oral motions, and has, at least on one occasion, just asked the Department representative at the Board meeting what the amount of the costs were. The Board has been interpreting Section 456.072(4), Florida Statutes, to require the inclusion of the direct and indirect expenses of the Department, including those costs listed in subsections b, c, d, e, f, and g of paragraph 4 of this Final Order, when assessing the costs related to the investigation and prosecution of a case against a physician, who is before the Board as a result of a recommended order. In doing so, the Board has implicitly adopted those costs appearing in subsections b, c, d, e, f, and g of this Final Order as the costs it will assess related to the investigation and prosecution of a case.
The Issue Whether Respondent Florida Department of Health and Rehabilitative Services (HRS), acted illegally, dishonestly, fraudulently, arbitrarily or/and capriciously in determining to award the contract for RFP 95-142CM-FAP to Unisys Corporation (Unisys).
Findings Of Fact On November 14, 1994, HRS's Office of Information Systems distributed the RFP, entitled "FLORIDA System --Applications Programming Services." The RFP was designed to procure the programming services required by HRS to complete the software programming of, among other things, the state's federally mandated Child Support Enforcement System, and to maintain and enhance the system upon its completion. Upon selection of the winning proposal, HRS intended to enter into the contract for thirty-six months, renewable upon agreement of the parties for an additional 12 months. The cost proposal rates for the initial three-year term would be binding for any subsequent work on the project. HRS also reserved the right to acquire additional consulting services from the contractor for related activities for up to one year after the termination of the Contract. HRS began developing this RFP in the late spring or early summer of 1994 in anticipation of the expiration of the current contract with Deloitte for provision of applications programming services. Before release to prospective proposers, the RFP was approved by HRS' Office of Contract Services and the Information Technology Resources Procurement Advisory Commission (ITRPAC), a body consisting of various state officials including the head of the Division of Purchasing, which ensures that the RFP complies with state rules. In addition, various federal agencies approved the RFP before its release to prospective proposers. The RFP provided that 60 percent of the proposal scoring would be based on the technical proposals contained in the responses to the RFP, and that the remaining 40 percent of the score would be assigned to the costs as submitted in the proposals. After scoring and weighting of the scores, the weighted scores were to be combined to determine the winning proposal. The breakdown of scoring between technical and cost components is based upon HRS' standard practice and its experience with the format required by other state and federal agencies with whom HRS works. The division of the scores was also intended to ensure that an unqualified vendor did not secure the bid solely on the basis of low cost. The selection of the evaluation criteria and weighting of evaluation points for this RFP were subject to the discretion of the Department at the time the RFP was prepared. On December 12, 1994, HRS held a bidders' conference at which representatives of Deloitte and Unisys were in attendance. EVALUATION OF RESPONSES On January 6, 1995, Deloitte and Unisys submitted the only two proposals in response to the RFP. Both proposals were deemed responsive to the requirements of the RFP. HRS appointed a five member Evaluation Committee to review and evaluate the proposals. HRS provided training to the Evaluation Committee members specifically directed to the proper method for reviewing and scoring proposals submitted in response to the RFP. Each member of the Evaluation Committee was qualified by training, education and experience to review and evaluate the technical merits of each proposal. The RFP defined the criteria by which the proposals would be reviewed, scored and ranked by the Evaluation Committee, and the contract awarded. Included in the RFP were blank cost proposal forms which the proposers were to complete. Those forms did not include any blank spaces to be filled in referencing costs associated with any "renewal" periods or otherwise provide for including information about proposed costs for any renewal periods. The Evaluation Committee members each independently reviewed the technical proposals submitted in response to the RFP over a period of approximately two weeks. Committee members submitted the raw scores from their technical evaluations to Karin Morris, the HRS System Program Administrator. The cost proposals were opened and scored on January 20, 1995 by Ms. Morris. The RFP provided, in Section 6.0, that a comprehensive, fair, and impartial evaluation would be conducted of all proposals received. The RFP also provided for the grouping of evaluation criteria into six categories with points assigned as follows: - Mandatory Requirements 0 points - Management Summary 0 points - Corporate Capabilities 200 points - Project Staff 200 points - Technical Approach 100 points - Project Workplan 100 points - Cost 400 points Section 6.0 of the RFP also contained the following language: Selection of the successful proposer will be based on the proposal that is determined to be in the best interest of the department, taking into consideration cost and other criteria set forth in the RFP. Further, the RFP provided, in Section 6.1, that: An Evaluation Committee will be established to assist the department in selection of the winning contractor(s). All proposals not meeting the mandatory requirements will be rejected. The committee will evaluate the technical approach, corporate capabilities and project staff of all responsive proposals. The committee will rank proposers by the resulting scores and make a recommended award. The committee will summarize their findings and prepare an evaluation report to the Deputy Secretary for Administration. The report will then be presented to the Secretary of HRS. The Secretary will review the final report, pertinent supporting materials and make the determination of the final award, taking into consideration cost and other evaluation criteria set forth in the RFP. The Secretary reserves the right to take any additional administrative steps deemed necessary in determining the final award. (Emphasis added). Most importantly, Section 6.3(D) of the RFP dealing with the evaluation of the cost proposals stated: The points awarded for the three cost evaluation categories will be totaled and added to the points awarded for technical evaluation cate- gories 3 through 6 to determine the winning proposer. (Emphasis added). After reviewing and comparing the weighted scores of both proposals, the Evaluation Committee issued a "Final Report," with recommendations, on January 30, 1995. The weighted technical scores reflected in the Evaluation Committee's Final Report are as follows: DELOITTE UNISYS Corporate Capabilities 200 186.36 Project Staff 200 159.07 Technical Approach 100 76.62 Project Workplan 100 76.73 TOTAL 600 499 The weighted cost scores were: DELOITTE UNISYS Fixed Price Tasks 10.0 2.27 Monthly Price 357.90 380.0 Hourly Price 7.77 10.0 TOTAL 375.67 392.2 Totaling all categories as required by paragraph 6.3(D) of the RFP, the Department's Evaluation Committee arrived at the following final ranking: DELOITTE UNISYS Technical Proposal 600 499 Business Proposal 376 392 TOTAL 976 891 Based upon the Evaluation Committee's scores, Deloitte's demonstrated technical capability is 20 percent higher than that of Unisys. Under the terms of the RFP, there was no discretion involved in scoring the cost portion of the proposals, including the weight to be accorded costs in the final overall scoring to determine the winning bidder. Based upon HRS' inclusion of the specific criteria in the RFP, the cost portion scoring was merely a mechanical calculation. Both of the proposers' cost proposals fall within the agency's budgetary limits for the current year for accomplishing the work requested by the RFP. Four of the five members of the HRS Evaluation Committee recommended award of the contract to Deloitte, in the following language: Deloitte & Touche scored higher in all areas including recommendations. Deloitte and Touche is the incumbent contractor and therefore there are no risks associated with the transition. Deloitte understood the requirements of the RFP and addressed them more completely in their proposal. Therefore, it is our recommendation that the contract should be awarded to Deloitte & Touche. (Emphasis added). One member of the Evaluation Committee recommended the decision be left to the Secretary of HRS. None of the members of the HRS Evaluation Committee recommended award of the contract to Unisys. HRS SECRETARY'S DECISION TO AWARD TO UNISYS On January 27, 1995, prior to preparation of the recommendations contained in, or the issuance of, the Evaluation Committee's Final Report, HRS Secretary James Towey convened a meeting with Deputy Secretary Lowell Clary, John Holland, Bill Belleville and the department's legal counsel to discuss the contract award process, a draft of the Evaluation Committee's Final Report and other matters the Secretary felt relevant to HRS' ultimate decision on the RFP. At the meeting, Towey was informed by Bill Belleville that Deloitte's proposal was the "best." Towey was also informed by John Holland and Bill Belleville that both companies could perform under the contract. However, neither Holland's nor Belleville's assessments were based on responses to the RFP, but rather upon their own experience with the two vendors outside of this RFP process. Belleville conceded that he believed that a proposer was qualified to perform the contract by merely meeting the "mandatory" requirements of the RFP, a category that was accorded zero points in the scoring criteria. Informed that both companies could perform under the contract, Towey "zeroed in" on costs as the major consideration for the award of the contract. At the meeting, he considered a present-value calculation of the payments that the State would make over the course of a contract, if the contract had been for a 48 month term. The calculation had been prepared by Dean Modling, an HRS senior management analyst supervisor, although the RFP had been approved by the Department of Management Services without provision for such an analysis. The RFP not inform proposers that a present-value analysis would be performed and provision for the present-value of a contract was not included in the scoring criteria for the proposals. Present value calculation became an issue when it was raised and discussed at the January 27, 1995 meeting, and subsequently used in the Secretary's decision to award the contract to Unisys. Towey also considered, in deciding to award the contract to Unisys, a calculation of "raw costs," provided after the January 27, 1995 meeting. These "raw costs" were presented on two charts. Both added up the amounts submitted by each proposer for fixed price tasks and monthly costs, over 36 months. Although the RFP did not request, and neither proposer submitted costs for a 48 month contract, the two charts included a calculation for a hypothetical 48 month contract using the same monthly payments submitted for the 36 month contract. In addition, one of the two charts included a 5.8 percent factor for overtime, which was also not addressed by the RFP or by the proposals submitted in response to the RFP. There was no evaluation criteria contained in the RFP which dealt with the issue of "raw costs" over the term of the contract. Prior to the decision to award to Unisys, HRS never performed and Towey never considered a present value analysis for the 36 month contract period provided for in the RFP. Finally, as a result of concern expressed at the January 27, 1995 meeting regarding whether Unisys could handle the immediate tasks required by the contract, including requirements of the Child Support Enforcement and federal certification programs, Towey considered whether there would be any risk of transition if Unisys were unable to hire some of Deloitte's employees and subcontractors should he decide to award the contract to Unisys. Towey specifically requested Deputy Secretary Clary to research this issue. In order to obtain information, Clary had HRS personnel directly contact Deloitte's subcontractors. Clary responded to Towey three days later on January 30, 1995, the day before the decision by Towey to award the contract to Unisys, that Deloitte's subcontractors would not be prohibited from working for Unisys. Consideration of overtime and risk of transition were not criteria contained in the RFP, nor were these elements evaluated and scored by the HRS Evaluation Committee. By way of a January 31, 1995 memorandum to Clary announcing the award of the contract to Unisys, Towey stated: I have now had an opportunity to review the report of the evaluators of this RFP, the recommendations contained therein, the raw data submitted with the proposals, and the RFP. I understand the nature of the project and its importance to the agency. Based upon my review of the information presented to me and my understanding of similar projects in the past, my decision is to award the contract to Unisys as the proposal most advantageous to the state of Florida, taking into consideration the price and other criteria set forth in the RFP. Although I have considered the risk of transition to a new contractor, I find that I am unable to ignore the dollar savings which will result in awarding the contract to Unisys. Since you and your staff have assured me that both companies are technically competent to perform the work, I believe the monetary savings outweigh any risk that might exist in the transition of contractors. Therefore, I have determined that it is in the state's best interest to award the contract to Unisys. Please take whatever steps are necessary to implement this decision. (Emphasis added). By his actions, Towey exercised more than the prerogative conferred by the RFP to "take any additional administrative steps deemed necessary in determining the final award" and actually evaluated criteria other than that contained in the RFP in reaching his decision to award the contract to Unisys. Further, in awarding the contract to Unisys, Towey effectively altered the relative weight of the criteria as specified in the RFP. Towey relied upon the advice of Clary. Illustrative of Clary's perspective is his testimony at the final hearing that he believed the 60/40 weighting contained in the RFP to be inapplicable to decision making by the Secretary of HRS. Neither Bill Belleville nor John Holland reviewed, in detail, the proposals submitted in response to the RFP. Neither performed their own independent analysis of the responses. Further, Clary never reviewed the RFP nor the proposals submitted in response to the RFP. In the course of his decision making process with regard to award of the contract to Unisys, Towey relied on the advice of Clary, Belleville and Holland, referred to by Towey as his "top managers", despite their undisputed lack of familiarity with the Deloitte and Unisys proposals. While his memorandum dated January 31, 1995, states he reviewed the RFP, Towey admitted in his testimony at the final hearing that he had not personally reviewed the document. Further, he never reviewed or performed his own analysis of the two proposals submitted in response to the RFP. The members of the Evaluation Committee members were the only persons to fully and carefully evaluate the two proposals and score them under the criteria contained in the RFP. Since that time, no one else from HRS has attempted to reevaluate or re-score the proposals. Neither Towey nor anyone else involved in the January 27, 1995 meeting disagrees with the analysis and scoring of the proposals by the Evaluation Committee. PRESENT-VALUE ANALYSIS Section 1.2 of the RFP, states, in part: This RFP will result in a thirty-six month contract. Further, Section 4.12(C) of the RFP states, in part: Upon selection of the winning proposal, the department shall enter into a contract for thirty-six (36) months. Although the possibility of renewal of the contract for a maximum of a single, one year term is contained in the RFP, there is no provision in the RFP which requires that HRS renew the contract after 36 months or that the contractor accept a renewal after 36 months for any specific term. By the terms of the RFP, any renewal of the contract for a period beyond the 36 month term is subject to negotiation between the contractor and the department. While proposals submitted by Unisys and Deloitte commit to maintaining the same costs in the event of renewal, negotiation as to the length, price and staffing for any renewal period less than a year, is not excluded by the terms of the RFP. Neither HRS nor the contractor is bound, under the terms of the RFP, to any extension of the contract. HRS' own manual, HRSP 75-3, entitled "Developing a Request for Proposal," states, in the section on contract renewals: If Contract Renewals have been provided for in this RFP, include the following recommended language in the Special Provisions subsection of the RFP: This contract may be renewed on a yearly basis not to exceed two (2) years beyond the initial contract or for a period no longer than the term of the original contract whichever period is longer. Such renewals shall be contingent upon satisfactory performance evaluations as determined by the department and shall be subject to the availability of funds. As specified in the provider's response to the RFP/ITB, the total cost for the contract under the' first year renewal will not exceed $ and the second year renewal will not exceed $ . Each renewal shall be confirmed in writing and shall be subject to the same terms and conditions set forth in the initial contract. (Emphasis added). Another in-house document at HRS is HRS manual, HRSM 75-2 (May 1, 1994 update), entitled "Contract Management System for Contractual Services". Chapter 5 of that document, entitled "Contractual Procurement Requirements," states, in pertinent part: The dollar amount and the manner in which the costs for the . . . renewals will be calculated must be specified in the response to the RFP and in the resulting contract document. By contrast, the RFP contains none of the language specified in either HRS manual regarding renewal. Section 4.12(c) of the RFP merely states: This contract term shall be renewable for a max- imum of a one year term upon the mutual agreement in writing of the contractor and the department. (Emphasis added). Terms of the RFP did not invite proposers to submit a specific cost or any other information for a renewal period or explain how costs for a renewal period would be calculated. Neither did the RFP contain any language that renewals would be conditioned on satisfactory performance by the contractor. Proposers, on blank cost forms, were requested in the RFP to provide HRS with their proposed prices for fixed price items, monthly costs and hourly costs. The forms, contrary to the requirements of HRS manuals applicable in situations where information for a renewal term is requested, did not provide a place for proposers to indicate costs for any renewal term or to demonstrate how those costs were calculated. Both contractors understood that any renewal would be subject to negotiation. The "Standard Contract" contained in the RFP provides only for a term of 36 months and a cost for that specific contract term. Consistent with the terms of the RFP that the contract was for a 36 month term, HRS submitted, on more than one occasion, materials to ITRPAC. In those materials, HRS represented that the proposed budget amounts of $25 million and $28 million for the project were for a three year term contract. The Notice of Award which HRS issued stated that a three year contract was to be awarded. Although the RFP addressed staffing at a maximum of 107 persons, HRS was aware that 100 percent staffing might not always occur. Section 2.l(B)(5) of the RFP permits 90 percent of the maximum staffing level at a given time without the vendor incurring a penalty. At one point in the RFP preparation, a draft of the RFP required 95 percent staffing. Even that level was considered by HRS to be too restrictive and anti-competitive and was amended to 90 percent out of fear that a 95 percent staffing level would discourage submission of competitive proposals. The 90 percent figure was also used in the RFP to account, in part, for projected attrition of contractor employees that HRS had historically experienced on this project. From the standpoint of budgetary allowances by HRS for the project, it is realistic to believe that the job will be staffed at somewhere between 90 percent and 95 percent rather than at the maximum staffing level of 107 employees. Although Section 4.15(D)(5) of the RFP states that the State is not responsible for paying contractor's employees for leave or vacation time, the testimony of Petitioner's financial expert, Dr. Elton Scott, establishes that a reasonable assumption is to assume that each employee is entitled to, and would take, at least two weeks vacation. Such an assumption should also be included when performing a present value analysis, particularly when assuming 100 percent staffing. Depending on budget allocations for this project, it is possible that HRS would only require that the contractor provide as few as 46 employees. The present value calculation performed by HRS indicated that, over 48 months, at 100 percent staffing (107 employees), the monetary cost of awarding the contract to Unisys would be approximately $500,000 less than the cost of awarding the contract to Deloitte, a savings of approximately 1.5 percent over the term of the contract. As demonstrated by HRS' subsequent present value calculation performed at final hearing in this cause, for the 36 month actual contract period, at maximum staffing, HRS would realize a savings of no more than $39,802 by awarding the contract to Unisys, a savings of less than 2/10ths of 1 percent. None of HRS' present value calculations accounted for leave/vacation time or for any staffing levels under 100 percent for any other reasons. Based upon the terms of the RFP, the language of HRS' procurement manuals, and the expert testimony of Dr. Scott, any valid present-value analysis should have included a 36 month term contract. Any such analysis should also have taken into account varying levels of staffing, leave/vacation time, and overtime if staffed at the minimum required. A properly performed present-value analysis indicates that Deloitte's proposal is less expensive than the Unisys proposal in the following amounts over a 36 month contract term, at the staffing levels indicated: Employees Leave/Vacation Time Overtime Deloitte Savings 107 2 weeks none $12,791 96 none none $109,062 96 none 5.8 percent $ 18,327 46 none none $844,473 (Pet. Exh. 15) The only scenario in which the Unisys proposal is less costly than the Deloitte proposal, using the proper present value analysis, would be at 107 employees, with no accounting for leave time. This unlikely future scenario would result in a savings of no more than $47,378, or less than 2/10ths of l percent of the contract amount over 36 months. Because it requires an up-front payment of more than $1,600,000 (as compared to $78,000 for Deloitte), the Unisys proposal places the State of Florida at substantially more financial risk than the Deloitte proposal in the event of nonperformance by Unisys. On February 1, 1995, HRS posted its notice of intent to award the Contract to Unisys. Deloitte filed its timely notice of intent to protest on February 3, 1995, and filed its timely formal protest and request for hearing on February 13, 1995.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which declines the award to Unisys and takes into account the foregoing findings of fact and conclusions of law when deciding the future course of contracting for the services sought by the RFP. DONE and ENTERED this 12th day of May, 1995. DON W. DAVIS, 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 May, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made with regard to purposed findings of fact submitted by the parties. Intervenor's Proposed Findings: Adopted. Adopted as to 1st sentence. Remainder not relevant with exception of last sentence which is adopted. Rejected, subordinate to HO findings. Accepted. Rejected, subordinate to HO findings. 6.-7. Rejected, cumulative. 8. Accepted. 9.-10. Rejected, subordinate to HO findings. Accepted. Rejected, subordinate to HO findings. Accepted. Rejected, cumulative. 15.-17. Rejected, subordinate. 18.-20. Rejected, relevance. 21.-22. Accepted. 23. Rejected, subordinate to HO findings. 24.-25. Accepted. 26.-29. Rejected, subordinate to HO findings. 30. Accepted. 31.-36. Rejected, subordinate. Rejected, weight of the evidence. Rejected, opinion, weight of the evidence. 39.-41. Rejected, subordinate. Respondent's Proposed Findings: 1.-3. Adopted, not verbatim. 1.-6. Adopted by reference. 7. Rejected, relevance. 8.-9. Rejected, cumulative, unnecessary. 10.-12. Accepted. 13. Rejected, cumulative. 14.-16. Accepted. Rejected, weight of the evidence. Rejected, relevance. Rejected, weight of the evidence. 20.-21. Rejected, argument. 22.-23. Rejected, subordinate to HO findings. 24. Rejected, argument. 25.-27. Rejected, subordinate, weight of the evidence. 28.-29. Rejected, relevance. 30.-31. Rejected, subordinate. Rejected, weight of the evidence. Rejected, subordinate, weight of the evidence. Rejected, relevance. 35.-36. Rejected, cumulative. Rejected, weight of the evidence. Accepted. Rejected, argument, weight of the evidence. Rejected, relevance, argument. 41.-42. Rejected, argument. Rejected, subordinate. Rejected, 20 percent difference, improper characterization. Rejected, relevance, argument. Rejected, argument, subordinate. Rejected, redundant, subordinate. Rejected, legal conclusion. Rejected, relevance, argument, lack of credible evidence. Rejected, weight of the evidence. Rejected, subordinate. Rejected, weight of the evidence. Rejected, relevance. Rejected, argumentative, legal conclusion. Rejected, legal conclusion, argument. Rejected, legal conclusion. Petitioner's Proposed Findings Of Fact: 1.-43. Accepted, though not verbatim in some instances. 44. Subordinate to HO findings. 45.-48. Accepted. Subordinate. Accepted. Subordinate. 52.-70. Accepted. COPIES FURNISHED: William E. Williams, Esq. Red D. Ware, Esq. Huey, Guilday & Tucker, P.A. 106 E. College Ave., Ste. 900 Tallahassee, FL 32301 William A. Frieder, Esq. Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 W. Robert Vezina, III Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Dr. Tallahassee, FL 32302 Steven A. Blaske Unisys Corporation 4151 Ashford Dunwoody Rd. Atlanta, GA 30319 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Kim Tucker, Esq. Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner sat for the licensure examination for architects administered in June of 1994. The examination consisted of various divisions. Division A covered the subject of pre-design. The questions in this division of the examination were machine-graded, multiple choice questions. Petitioner received a failing score of 72 on Division A. Question 6 of Division A asked the examinee to identify the term used to describe the separate management units formed by ridge lines that divide the land and determine regional drainage patterns. These management units are called watersheds. Accordingly, the correct answer to Question 6 of Division A was "D." Petitioner selected "A," "swales," as his answer to the question. Swales, however, while they are used as drainage areas, are not, unlike watersheds, regional in character. Petitioner's answer to Question 6 of Division A therefore was clearly incorrect. Question 8 of Division A asked the examinee to identify which of the four drawings shown on the question sheet depicted a symmetric, hierarchal pattern of land use. The correct answer to the question was "B." Petitioner selected "C" as his answer to the question. "C," however, depicted an axial, rather than a hierarchal, pattern. Petitioner's answer to Question 8 of Division A therefore was clearly incorrect. Question 13 of Division A tested the examinee's knowledge of the impact the increase in the number of young, professional dual-income families has had on residential neighborhoods. The increase in the number of young, professional dual-income families has increased property values in older established neighborhoods, led to the building of large new suburban tracts, reduced the availability of residences that moderate income families can afford and accelerated the restoration of older neighborhoods. Accordingly, the correct answer to Question 13 of Division A was "D." Petitioner selected "B" as his answer to the question, which was clearly incorrect. Question 20 of Division A tested the examinee's knowledge of the possible components of a market study. A market study might include a windshield survey, data obtained from questionnaires and/or an analysis of competing projects. A detailed financial package, however, would not be part of a market study. Accordingly, the correct answer to Question 20 of Division A was "C." Petitioner selected "A" as his answer to the question, which was clearly incorrect. 1/ Question 28 of Division A tested the examinee's knowledge of the requirements of the national building code relating to multistory buildings. The code allows, in a multistory building, two fire exits on one corridor, fan coil units utilized in office space and a fire exit that intersects two corridors. A corridor utilized as a return-air plenum, however, is not permitted under the code. Accordingly, the correct answer to Question 28 of Division A was "C." Petitioner selected "D" as his answer to the question, which was clearly incorrect. Question 53 of Division A asked the examinee to identify the most dominant design feature of the structures depicted on the question sheet. The correct answer to Question 53 of Division A was "C," "facade rhythm." The structures depicted did not display vertical harmony inasmuch as their facades were different. Accordingly, the answer selected by Petitioner, "A," "vertical harmony," was clearly incorrect. Division E of the examination covered the subject of lateral forces. The questions in this division of the examination were machine-graded, multiple choice questions. Petitioner received a failing score of 73 on Division E. Question 14 of Division E tested the examinee's knowledge of the factors which determine the maximum lateral-load and shear capacity of a plywood roof diaphragm. These factors include nail size, nail penetration, plywood thickness and plywood species. Accordingly, the correct answer to Question 14 of Division E was "D," not "C," the answer Petitioner selected. 2/ Division H of the examination covered the subject of materials and methods. The questions in this division of the examination were machine-graded, multiple choice questions. Petitioner received a failing score of 74 on Division H. Question 21 of Division H tested the examinee's knowledge of the requirements of the model building code relating to the dimensions of a Class A interior stairway in a newly constructed multistory building serving an occupant load of 100. The correct answer to the question was "D," "60 inches." Petitioner selected "C," "48 inches," as his answer to the question. Although the Americans with Disabilities Act (ADA) requires that Class A interior stairways in multistory buildings have a minimum clear width of 48 inches between the handrails, question 21 of Division H was based upon the requirements of the model building code, not the requirements of the ADA. Accordingly, Petitioner's answer to the question was clearly incorrect. Questions 121 through 123 of Division H tested the examinee's knowledge of the components of an inverted (IRMA) roof system. There were two correct answers to Question 123, "F-9" ("membrane") and "K-7" ("vapor barrier"). Petitioner selected one of these answers, "F-9," and received credit for answering the question correctly. Each of the foregoing questions (Questions 6, 8, 13, 20, 28 and 53 of Division A, Question 14 of Division E, and Questions 21 and 123 of Division H) was clearly and unambiguously worded, provided sufficient information to select a correct response and required the application of knowledge that a qualified candidate for licensure as a registered architect should possess.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Architecture enter a final order rejecting Petitioner's challenge to the failing scores he received on Divisions A, E and H of the licensure examination for architects administered in June of 1994. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of April, 1995. STUART M. LERNER 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 19th day of April, 1995.
The Issue Whether Petitioners are entitled to attorneys' fees and costs.
Findings Of Fact The following facts are taken verbatim from the parties' Joint Pre-Hearing Stipulation (JPS): On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Vipul Patel's Petition for Variance from or Waiver of Rule 64B16-26.2031, F.A.C. (hereinafter Petition for Variance). On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Se Young Yoon's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Miriam L. Hernandez's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Mirley Aleman- Alejo's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied John H. Neamatalla's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Md. A. Samad Mridha's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Valliammai Natarajan's Petition for Variance. For convenience sake, the foregoing-named Petitioners are referred to as "Group 1." Petitioners' "Group 2" are identified in paragraphs 38 through 41 of the JPS: On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Saurin Modi's Petition for Variance. On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Deepakkumar Shah's Petition for Variance. On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Ravichandran Sokkan's Petition for Variance. On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Mijeong Chang's Petition for Variance. Respondent issued orders denying the Petitions for Variance for Group 1 Petitioners on or about May 9, 2008. Respondent issued orders denying the Petitions for Variance for Group 2 Petitioners on or about July 3, 2008. Subsequent to the entry of the orders denying their variances, each of Group 1 Petitioners retained counsel and filed petitions to challenge the denial of their variances. Subsequent to the entry of the orders denying their variances, each of Group 2 Petitioners retained counsel and filed petitions to challenge the denial of their variances. All petitions were filed within 21 days of the entry of the orders that denied the variance. Respondent did not dispute the timeliness of the petitions, but took no action on the petitions. Instead, on or about August 21, 2008, Respondent reconsidered the petitions for variance, and granted all of the Petitioners' requests. Respondent did not take action on the requests to challenge the original variance denials, did not refer the cases for formal proceedings, and did not re-visit Petitioners' claims until August 21, 2008. On or about September 5, 2008, Respondent entered orders granting Petitioners' variances. Group 1 Petitioners waited approximately five months to obtain approval of their variances. In the meanwhile, they had retained counsel and filed petitions to challenge the denials. Group 2 Petitioners waited approximately three months for their variances to be approved. They, too, retained counsel to protect their rights. In October 2008, Petitioners filed Petitions for Attorneys' Fees and Costs with Respondent. Respondent did not grant, deny, or refer those petitions to DOAH. On or about November 24, 2008, Petitioners filed a Verified Writ of Mandamus, in the Eighteenth Judicial Circuit Court, Seminole County, Florida, requesting that the court require Respondent to either grant or deny the petitions for attorneys' fees and costs. On or about December 2, 2008, Petitioners served on Rebecca Poston, executive director of the Board of Pharmacy, a summons with petition for writ of mandamus. On or about February 16, 2009, Petitioners filed a Motion for Entry of Clerk's Default for Failure of Respondent to file a Response to the writ. The case was transferred to the Second Judicial Circuit, Leon County, Florida. On or about June 4, 2010, the Second Judicial Circuit, Leon County, Florida, issued an Order to Show Cause on Respondent. Ultimately, the court denied the writ and dismissed the Order to Show Cause. Petitioners then filed Petitions for Attorneys' Fees and Costs with DOAH and the cases were consolidated for hearing. The parties agreed to bifurcate the issues and resolve the issue of whether Petitioners are entitled to attorneys' fees and costs, before addressing the remaining question of the amount of fees and costs, if appropriate to award them. Petitioners were the prevailing parties in the underlying matter, since the variances were granted. On August 1, 2008, Respondent issued a Notice of Proposed Rule Development for Florida Administrative Code Rule 64B16-26.2031. On August 1, 2008, A Notice of Proposed Rule for rule 64B16-26.2031 was published in the Florida Administrative Weekly. On August 13, 2008, approximately eight days before the variances were approved, Respondent decided to amend rule 64B16-26.2031. Implicit in this amendment, is the concession that the former version of the rule exceeded Respondent's statutory authority. Respondent approved the amended rule 64B16-26.2031, on or about June 10, 2009. Petitioners maintain that Respondent acted with an improper purpose when it denied Petitioners' initial applications and subsequent petitions for variance. Petitioners assert that Respondent caused undue delay, by failing to timely grant or deny Petitioners' petitions to challenge the variance denials, and that Respondent's failure to grant, deny, or forward the petitions to DOAH, was an abuse of the agency's discretion. Further, Petitioners claim that Respondent should have acted on the petitions for attorneys' fees and costs, or referred them to DOAH. Respondent maintains it acted appropriately and in good faith, because its actions were substantially justified and in accordance with law.
Conclusions For Petitioners: George F. Indest, III Justin C. Patrou The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714 For Respondent: Allison Dudley Assistant Attorney General Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050
Other Judicial Opinions A party who is adversely affected by this Partial Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with the Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
