Findings Of Fact The Respondent holds Florida teaching certificate 190841, covering the areas of elementary education and reading, which is valid through June 30, 1993. The Respondent has applied for renewal of her teaching certificate, and her renewal application is being held pending a resolution of this matter. At all times pertinent hereto, the Respondent was employed as a teacher at Seminole Middle School in the Pinellas County School District. On or about August 19, 1979, the Respondent was arrested in Sylva, North Carolina, and charged with driving while intoxicated. On or about December 20, 1979, the Respondent was convicted and her driver license was revoked for 12 months. The Respondent submitted an Application for Teacher's Certificate to the Department of Education, signed and notarized on September 7, 1982. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979. The Respondent submitted an Application for Name Change and/or Duplicate Certificate to the Department of Education, signed and notarized on March 2, 1983. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979. The Respondent submitted an Application for Extension of Certificate to the Department of Education, signed and notarized on March 1, 1984. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had convicted of driving while intoxicated in 1979. On or about February 26, 1985, a Madeira Beach Police officer observed the Respondent driving her vehicle in an erratic manner. The Respondent failed several roadside sobriety tests and refused to submit to a breathalyzer test. The Respondent was arrested and charged with driving while intoxicated. On or about April 29, 1985, the Respondent entered a plea of nolo contendere in the Pinellas County Court to the charge of driving under the influence. The court adjudicated the Respondent guilty and sentenced her to serve 12 months probation. The court further ordered the Respondent to pay a $500.00 fine, enroll in a DUI school, and revoked the Respondent's driver license for six months. On or about October 30, 1986, a Madeira Beach Police officer observed the Respondent driving her vehicle in an erratic manner. The Respondent failed several roadside sobriety tests. The Respondent's blood alcohol level was found to be in excess of the legal limit. The Respondent was arrested and charged with driving under the influence. On or about March 6, 1987, the Respondent entered a plea of guilty in the Pinellas County Court to the charge of driving under the influence. The court adjudicated the Respondent guilty and sentenced her to serve 10 days in the jail, to be served in the "Weekend/Daywatch Program", to be followed by one year of probation. The court further ordered the Respondent to enroll in DUI school, attend Alcoholics Anonymous meetings, and revoked the Respondent's driver license for 10 years. The Respondent submitted an Application for Extension of Certificate and Application for Addition and/or Upgrade to the Department of Education, signed and notarized on June 23, 1987. The applications each included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations? In her sworn response to each question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. The Respondent submitted an Application for Educator's Certificate to the Department of Education, signed and notarized on June 13, 1988. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. The Respondent submitted an Application for Name Change and/or Duplicate Certificate to the Department of Education, signed and notarized on February 24, 1989. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. On or about January 5, 1993, the Respondent was observed driving a vehicle in Pinellas County, Florida while her driver license was revoked. The Respondent was arrested and charged with driving with a revoked license. On or about February 24, 1993, the Respondent entered a plead of guilty to the charge of driving with a revoked license in Pinellas County Court. The court adjudicated her guilty and ordered her to pay $500.00 in fines and court costs. The Respondent has been an effective classroom teacher for 36 years, mostly teaching sixth grade. The Respondent's evidence was that she resorted to alcohol in response to three successive traumatic events in her life: (1) the death of her husband in 1976, which required her to become independent and the sole parent of her son and four daughters and to return to graduate school to enable her to become the sole support for her family; (2) the murder of her son in 1982; and (3) the cancer death of her mother in 1986. Despite her alcohol problem, the Respondent was able to be an effective school teacher through the years and did not allow her personal problems to seriously adversely affect her work. Her last alcohol-related incident was in October, 1986. The Respondent's principal from approximately 1987 through 1992, a man named Bill Mock, had a well-deserved reputation for administering the Respondent's school through intimidation and threat of punishment. Since applications for teacher certificates routinely were processed through the school administration offices, the Respondent was afraid that the principal would learn of her DUI arrests and convictions from reading the Respondent's teacher certificate applications and that he would fire her or impose conditions on her continued employment at the school that would be intolerable for her. In order to protect her job and livelihood, and ultimately her family, the Respondent rationalized to herself that it was not necessary to disclose those arrests and convictions on her teacher certificate applications. When Mock retired at the end of the 1992/1993 school year, the Respondent reported her violations to her new school principal, and on or about March 31, 1993, received a written reprimand, but no suspension or dismissal, for her failure to acknowledge her arrests to the Department of Education. The Respondent has continued to be an effective middle school teacher. The Respondent's arrest and conviction for driving with a revoked driver license may have been "set up." Her ride to school cancelled at the last minute, leaving the Respondent without enough time to walk. She drove herself straight to school, and there was a policeman waiting for her in the school parking lot at the end of the school day. Otherwise, she did not drive with a revoked driver license. The Respondent's driver license is revoked until March, 1997, but she is eligible for a work permit upon completion of a driver education class.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Education Practices Commission enter a final order finding the Respondent guilty as charged and suspending her teacher certificate for one year, to be served beginning at the end of the current school year. RECOMMENDED this 17th day of August, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 17th day of August, 1994. COPIES FURNISHED: Robert J. Boyd, Esquire 2121 Killarney Way Suite G Tallahassee, Florida 32308 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640-3625 (Copies furnished, continued) Karen B. Wilde Executive Director The Florida Education Center, Room 301 Tallahassee, Florida 32399 Jerry Moore, Administrator Professional Practices Services 352 Fla. Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Barbara J. Staros General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent's intended award of a contract to Intervenor, pursuant to Invitation to Negotiate 024-12 (ITN), is contrary to Respondent's governing statutes, Respondent's rules and policies, or the specifications of the ITN?
Findings Of Fact Petitioner is a state agency authorized to enter into contracts for commodities and services subject to the procurement requirements of section 287.057, Florida Statutes [2011].1/ On April 17, 2012, the Department released the ITN which sought proposals to provide an ADLTS. The Department received and evaluated responses to the ITN from three vendors, including MorphoTrust and STS. On May 15, 2012, the Department issued Addendum 1 to the ITN, which answered questions vendors submitted regarding the ITN and replaced pages 31, 39, and 40 of the ITN. After completion of the first stage of [the] process of contractor selection where the Department evaluated the Statement of Qualification and Services Offered (SQSO) submitted by the vendors, the Department released the results of the initial evaluation process and proceeded to enter into negotiations with MorphoTrust and STS. The Department conducted ITN negotiation meetings with the representatives of MorphoTrust on July 10, 2012, and the representatives of STS on July 12, 2012. On July 18, 2012, the Department issued Addendum 2 to the ITN, which replaced pages 16, 23, 40, and 42. On July 26, 2012, the Department issued further instructions to MorphoTrust and STS, including a request for their [BAFO]. At this time, the Department issued Addendum 3 to the ITN, which replaced pages 15, 40 and 42. On July 31, [2012], the Department issued Addendum 4 to the ITN, which replaced page 16 of the ITN. MorphoTrust did not protest the terms, conditions, and specifications contained in the ITN, including any provisions governing the methods for ranking bids, proposals, or replies, awarding contracts, reserving rights of further negotiation, or modifying or amending any contract within 72 hours of the issuance of the ITN or any addendums thereto. On August 10, 2012, the evaluation team held a public meeting to evaluate the BAFOs submitted by MorphoTrust and STS. On August 13, 2012, the Department issued its intent to award the ADLTS contract to STS pursuant to the ITN. On August 16, 2012, MorphoTrust submitted its notice of intent to protest the intent to award the ADLTS contract to STS. On August 27, 2012, MorphoTrust filed its Formal Written Protest and Petition for Administrative Hearing. Section 1.1 of the ITN provides as follows: The Department of Highway Safety and Motor Vehicles, hereinafter called the Department, requests written proposals be submitted for an [ADLTS], which is to be provided at no cost to the Department. The [DHSMV] manages Florida's driver licensing program. Florida law requires a first-time driver to pass knowledge and skills exams prior to issuance of a driver license. The Department seeks to improve the integrity and efficiency of its licensing system by selecting a Contractor to provide a Driver License Testing System for use in State Driver License Offices, Tax Collector Offices and by Third-Party Test Administrators. Section 3.1 of the ITN provides as follows: The [DHSMV] manages Florida's driver licensing program. Florida law requires a first-time driver to pass knowledge and skills exams prior to issuance of a driver license. The knowledge and skills exams are designed to protect the public from hazards posed by unqualified motor vehicle operators. There are two (2) basic types of licenses--operator (Class E) and commercial (Classes A, B, and C). In Florida, Class E driver licenses are issued to drivers operating vehicles less than 26,001 pounds. Applicants must pass two (2) knowledge exams--road signs and road rules in order to obtain a learner's permit and must pass a driving skills exam to become fully licensed. The Department uses an aging web-based automated testing system for the administration of both Class E and commercial driver license knowledge exams in its fifty four (54) State Driver License Offices. In addition, one hundred and fifty six (156) county Tax Collector Offices in fifty two (52) counties also use the Department's automated testing system. Skills exams administered by State and Tax Collector Examiners are documented by hand, with pass/fail scores manually determined and entered into the driver license issuance system. In addition, six (6) Third-Party Contractors administer Class E knowledge exams online. The Department maintains the test databank and has established procedures for Third-Party Administrators to retrieve randomly generated test questions per applicant via web service. Currently, all operator skills exams are administered through State or Tax Collector Offices, with the exception of any teenager who completes a driver education program through their local high school. Driver education graduates are not required to complete additional skills exams. Driver education is currently offered in approximately fifty (50) of the sixty seven (67) school districts and a few private high schools. The majority of Commercial Driver License (CDL) skills exams are administered by third-parties, with less than ten percent (10%) of CDL skills exams administered by State Examiners. Over the next several years, we anticipate the following changes to our business environment. By 2015, all but three (3) of the sixty seven (67) counties will receive driver license services via the Tax Collectors. The Department will maintain driver license offices only in Broward, Miami-Dade, and Volusia counties; approximately twenty-six percent (26%) of all driver license transactions are conducted in these three (3) counties. More third-parties will offer Class E knowledge exams online. DHSMV started this program in July 2011. Seven (7) providers offer exams online now, but several others have applied. Some third-parties will offer Class E knowledge exams in a proctored setting. This option has been on the table since July 2011 and one vendor currently offers proctored exams. DHSMV will provide an opportunity for third-parties to administer Class E driving skills exams. The Department has delayed implementation of this opportunity until the conclusion of this ITN. DHSMV will expect third-parties administering Class E driving skills exams to use the system sought here, at their own expense. The Department will encourage Third- party administrators of CDL driving skills exams to use the system sought here, at their own expense. While we do not expect to mandate the use of this system for existing CDL Third-party administrations, there is a possibility that federal mandates may eventually recommend and/or require it. Section 3.2 of the ITN provides as follows: The Department seeks to improve the integrity and efficiency of its licensing system by selecting a Contractor to provide a NO-COST SOLUTION to the Department for a driver license testing system for use in State Driver License Offices, Tax Collector Offices and by Third-Party Test Administrators. This would include the system, web application and system maintenance, at no-cost to the Department. Third Party Administrators must be provided a consistent methodology for accessing and consuming the web-based tests questions and answers from the Awarded Contractor. The system must consist of: A web-based application for the administration of Class A, B, C, and E driver license knowledge exams in driver license and Tax Collector Offices. The Prospective Contractor must agree to provide this at no cost to the Department. A web-based application for the administration of Class E driver license road signs and road rules exams by third-parties. This system must also be accessible by Driver Education Licensing and Assistance Program (DELAP) administrators at no cost to the School Districts or the Department. A knowledge bank of at least five-hundred (500) questions for Class E road signs and road rules, plus CDL knowledge exam questions meeting American Association of Motor Vehicle Administrators (AAMVA) specifications. This must be provided at no-cost to the Department. A tablet-based solution for the administration of Class E driver license skills exams. Bonus points will be given to Prospective Contractors who provide this solution at no cost to the State for use by State and Tax Collector Offices. All Third-Party Administrators of Class E driver license skills exams will be required to adopt this solution. Third-Party Administrators can be charged for this solution. A tablet-based solution for the administration of Class A, B and C driver license skills exams. Third-party CDL skills exam administrators will not be mandated to adopt this solution at this time, but will be encouraged to do so. Section 3.3 of the ITN provides as follows: [ADLTS] is a centrally administered testing system that supports testing centers in State and Tax Collector Driver License Offices located throughout Florida. The purpose of the system is to perform driver license testing and other testing in a user-friendly Intranet and Extranet environment. The test information is stored centrally in Tallahassee offices of [DHSMV]. The system is a web-based system that is used to display and control all driver license testing, Administrative, Supervisor, Examiner and Extranet functions. The administrators of the ADLTS system control user accounts, testing office information, creating new exam categories, creating new questions, retiring questions and printing reports. In July 2011, the Department implemented a new third-party test administration program for Class E knowledge exams. The Department maintains the test databank and has established procedures for Third-Party Test Administrators to retrieve randomly generated test questions per applicant via web service. Any student who fails an exam is given the opportunity to retest with the Third Party Administrator two (2) additional times for each exam type (road rules and road signs). The Third Party Administrator is required to collect a statutory fee of ten dollars ($10.00) for each retest that is remitted to DHSMV electronically. Each exam is assigned a unique identifying number for tracking and auditing purposes. As part of this program, the opportunity exists for third-parties to administer the driver license knowledge exams in-person in a proctored setting. The Department does not currently provide a user interface application for third-party testers who administer exams on-line or in a proctored setting. Anyone wishing to offer these services must develop their own application to access the Department's web services. We have delayed implementation of this portion of the program until completion of this ITN, as we anticipate mandating that third-party administrators of Class E driving skills exams use the tablet testing system sought herein, at their own expense. All contractual language and current business rules for the Third Party Administration of Class E knowledge exams are available at http://www.flhsmv.gov/ddl/tpdlts.html. Approximately fifty (50) of the sixty seven (67) Florida school districts and several private high schools conduct both Class E knowledge and road tests for their enrolled driver education students through the Driver Education Licensing and Assistance Program (DELAP). The tests administered are the same as the Class E licensing tests given in driver license offices by Department and Tax Collector DL examiners. However, DELAP testers give the knowledge tests on paper forms generated by ADLTS, as they do not have direct access to the Department's electronic testing system. Commercial driver licensing (CDL) in-vehicle skills tests are conducted primarily by about two-hundred and thirty (230) third party businesses and agencies that have the necessary resources. Testing authority is granted by the Department through contracts. Some charge a fee for their services while others test only their own employees and do not. Test procedures are prescribed by federal regulation, following the AAMVA 2005 Model CDL Testing System. Section 4.1 of the ITN provides as follows: The Awarded Contractor will provide a web-based driver license testing system that will be used by Driver License Examiners in offices operated by the Department and Tax Collector Offices at no cost to the Department or County Tax Collectors. In addition, the Awarded Contractor must make available the same web-based solution for purchase by Third-Party Test Administrators. The testing system will include administrative and reporting functions. The awarded Contractor must also provide an option for purchase of a mobile tablet-based hardware/software solution for the administration of driving skills exams that will update the central testing database. The mobile solution will incorporate Global Positioning System (GPS) tracking technology for driving exam routes and time. The commercial driving skills exams must be generated in accordance with Federal Motor Carrier Safety Administration regulations and provide for subsequent updates upon release by AAMVA. Bonus points will be given to Prospective Contractors that offer this solution at no-cost to the Department. The Awarded Contractor will provide a minimum five-hundred (500) question databank of road signs and road rules Class E exam questions, plus CDL knowledge exam questions meeting American Association of Motor Vehicle Administrators (AAMVA) specifications that comports with Florida traffic and licensing laws. The Awarded Contractor may use the Department's existing bank of questions as the basis for the new databank. Currently, road signs and road rules exams are administered as two (2), twenty (20) question tests, but the Department will consider proposals to modify this testing model. For example, the Department would consider proposals for one (1) Class E knowledge exam that including both road rules and road signs questions and increases the total number of questions asked. Currently, approximately ninety five percent (95%) of applicants pass the road signs exam on their first attempt. Approximately forty eight percent (48%) of applicants pass the road rules exam on their first attempt. Please refer to the attached AAMVA Guidelines (Attachment VII) for knowledge and Skill Test Development. The Awarded Contractor is responsible for project planning, coordination, implementation, installation and maintenance, as applicable and must provide the name and qualification of the proposed project manager as part of the bid response. Any changes to the project manager after the ITN is awarded must be requested through the Department in writing. The Department will designate a project manager that will be the primary contact for the ITN. The Awarded Contractor will have access to personal identification data protected by the Florida and federal laws, including the Driver's Privacy Protection Act. The Prospective Contractor must describe in the bid response the security protocols related to employee background checks, training and monitoring. Section 4.2.8 of the ITN provides, in part, that "[a]t implementation, the system must provide replacements for the current test types which include[:] Class E General Knowledge, Road Signs . . . [and] Class E skill [testing]. " Section 4.2.13 of the ITN provides, in part, as follows: With the [BAFO], the Prospective Contractor must submit a price schedule to include a description of each item available for purchase and a purchase or use price. The pricing model may be per item, per license, or per use. While this will be a no-cost contract to the Department and Tax Collectors, price to third-parties will be considered during the evaluation process. An advertising plan must also be submitted by Prospective Contractors. (emphasis added). Section 8.1 of the ITN provides as follows: The Department will appoint an Evaluation Committee. The committee shall complete the evaluation of all valid proposals, in accordance with the criteria set forth in this section. Award will be to the highest scoring proposal, considering the technical proposal scoring and all costs for the five- year contract period, evaluated as described in Section 8.19 of this solicitation. (emphasis added). The reference in section 8.1 of the ITN to "Section 8.19" should be to "Section 8.9." The ITN does not contain a section 8.19. Section 8.9 of the ITN provides as follows: Price will be evaluated by the present value methodology required by Section 287.0572, Florida Statutes, and Rule 60A-1.063, Florida Administrative Code, to determine the lowest cost proposal. The lowest cost proposal will be awarded 15 points. Lowest total cost (LC) divided by proposal being considered (PC) times maximum points score (15) equals points awarded. Formula: LC/PC x 15=score. Section 1.5 of the ITN provides as follows, The Department has established certain mandatory requirements which must be included as part of any proposal. The use of the terms "shall," "must," or "will" (except to indicate simple futurity) in this solicitation indicates a mandatory requirement or condition. The words "should" or "may" in this solicitation indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature will not itself cause rejection of a proposal. Exception: This is a negotiation process. The DHSMV reserves the right to accept alternative means of accomplishing mandatory requirements, with reasonable assurance of satisfactory results, without addendum to this ITN. Such alternative(s) should be clearly identified by the Respondent firm in its proposal. The evaluation criteria set forth herein, and their relative weights, are also subject to modification in the negotiation process. Section 1.9 of the ITN provides, in part, that "[a]ny addenda or written answers supplied by the Department Procurement Officer to participating proposer's written questions become part of this solicitation." Section 1.34 of the ITN provides as follows: The contract resulting from this solicitation process shall consist solely of the purchase order issued by the Department to the successful proposer, this solicitation and any addenda thereto, and the proposal, including any license/use agreement submitted by the successful proposer as part of its proposal except to the extent of any conflict with Florida law or terms and conditions of the proposal. In the event of a conflict among any of the documents referenced herein, the following priority shall apply, with the language of each listed document governing the documents listed below it: The purchase order Any addenda to the solicitation The solicitation The awarded proposal including any agreements. Any agreements which include, but are not limited to installation, licensing, maintenance, software, etc. must be submitted with the proposal and agreed to by the Department during negotiations. Attachment I to the ITN is "State of Florida PUR 1000, General Contract Conditions (PUR 1000)." PUR 1000 is incorporated into the ITN by reference. PUR 1000, paragraph 4.(e), is entitled "Equitable Adjustment." This paragraph provides as follows: The Customer may, in its sole discretion, make an equitable adjustment in the Contract terms or pricing if pricing or availability of supply is affected by extreme and unforeseen volatility in the marketplace, that is, by circumstances that satisfy all the following criteria: (1) the volatility is due to causes wholly beyond the Contractor's control, (2) the volatility affects the marketplace or industry, not just the particular Contract source of supply, (3) the effect on pricing or availability of supply is substantial, and (4) the volatility so affects the Contractor that continued performance of the Contract would result in a substantial loss. Paragraph 1.(b) of PUR 1000 defines "Customer" to mean: [T]he State agency or other entity identified in a contract as the party to receive commodities or contractual services pursuant to a contract or that orders commodities or contractual services via purchase order or other contractual instrument from the Contractor under the Contract. The "Customer" may also be the "Buyer" as defined in the PUR 1001 if it meets the definition of both terms. Question 19, Addendum 1, and the answer related thereto read as follows: Question 19: "Bonus points will be given to Prospective Contractors that offer this solution at no-cost to the Department." Please define if "the Department" includes the Tax Collectors. If not, may the mobile skills test solution be sold to the Tax Collectors as well as the Third-Party Administrators? Answer to Question 19: Bonus points may be given up to a maximum amount of fifteen (15) points. The maximum amount of bonus points will be given if the mobile skills test solution is provided to both the Department and its Tax Collector agents at no cost. A lesser amount of points will be given if the solution is provided to the Department at no cost, and no bonus points will be given if the solution is not provided at no-cost. Question 37 from Addendum 1, and the response thereto, provide as follows: Question 37: Where is the Supplemental Cost Sheet shown in the ITN? Answer to Question 37: Please ignore the Supplemental Cost Sheet. There is only a Price Proposal Form (Section 9.0). Please utilize additional space in a Word, Excel or PDF format for pricing structure, if needed. Please seem amended pages 39 and 40 attached to this addendum. Question 39 from Addendum 1, and the response thereto, provide as follows: Question 39: May the awarded contractor charge a standard user/license fee to each third party administrator for the knowledge test and perhaps the eventual tablet skills test? Answer to Question 39: Yes, the Awarded Contractor may charge a standard user/license fee to each Third Party Administrator. Question 82 from Addendum 1, and the response thereto, provide as follows: Question 82: In regards to the Pricing Proposal Form on page 42 of the ITN, can this form be modified to better present our pricing strategy to the State of Florida? Answer to Question 82: Yes, this form can be modified utilizing Word, Excel or PDF to format a proposed pricing structure. Addendum 2 added to Section 3.2, subsection 4, the underlined language as noted: A tablet-based solution for the administration of Class E driver license skills exams. Bonus points will be given to Prospective Contractors who provide this solution at no cost to the State for use by State and Tax Collector Offices. If the tablet-based solution has a cost to the State and Tax Collector Offices associated with it, the price from Section 9.0 "Price Proposal" shall be utilized. All Third-Party Administrators of Class E driver license skills exams will be required to adopt this solution. Third-Party Administrators can be charged for this solution. Addendum 2 amended Section 9.0, which sets forth the Price Proposal Form to read as follows: Tablet Cost, Per Tablet For Third Party Administrator A $ Annual Cost to Access System for Third Party Administrator, Per Administrator B $ Total Cost A+B=C $ Note: Price Proposal Scoring is only calculated from a per-unit cost. The quantities will vary, based on need. Addendum 3 established the final Price Proposal Form as follows: Initial Term Tablet Cost, Per Tablet for Third Party Administrator A $ Cost To Access System for Third Party Administrator B $ Additional Features C $ Initial Term Total Cost A+B+C=D $ Renewal Term Tablet Cost, Per Tablet for Third Party Administrator E $ Cost To Access System for Third Party Administrator, Per Test F $ Additional Features G $ Renewal Term Total Cost E+F+G=H $ Total Cost D+H=I $ Note: The quantities will vary based on need. Additional Features can include any startup fees, maintenance or system enhancements. Please use additional space, if needed, to expand on Additional Features. Addendum 4 removed from the ITN the requirement that the successful proposer supply a damages bond. Deletion of Damages Bond Requirement Section 2.5 of the ITN, labeled "DAMAGES BOND," as originally set forth provided as follows: The proposer shall supply to the Department with the performance bond a bond for the payment of any liquidated damages as may become due and payable to the Department arising hereunder, in the face amount of 5% of the total cost for the project. The bond must be renewed annually no later than fourteen (14) business days prior to the beginning of the next contract or renewal period (if renewed). For the second and subsequent contract and renewal periods, the renewal bond amount must equal or exceed five percent (5%) of the total price amount proposed for the corresponding contract or renewal period in the proposer's proposal. Soon after issuance of the ITN, companies that were considering submitting a proposal were given the opportunity to tender questions regarding the ITN to the Department. One of the questions submitted by MorphoTrust in response to the ITN states that "[g]iven the unique model that the state has requested in the ITN, would the state be willing to negotiate [an] alternative liquidated damage clause to better reflect the proposed solution?" The Department's response to the inquiry stated that this issue could "be discussed during the negotiation phase of the ITN process." Intervenor STS, in response to the ITN, also posed a question to the Department regarding the bond requirements. STS's question and the Department's response thereto provide as follows: Question: In regards to the bonds, what value/cost is the bond supposed to represent? Is this value the price that the State of Florida is required to pay to the contractor for the five year contract period? Or, is the value the total expense that the contractor has invested in the contract for the five year period? Response: The bonds must be in the amount [of] five percent (5%) of the total pricing structure proposed by the Prospective Contractor. As previously indicated, the Department, during the period July 9 through 12, 2012, met with representatives from MorphoTrust and STS to negotiate the proposal and view demonstrations. During the negotiation and demonstration sessions, representatives from MorphoTrust and STS informed the Department of their concerns about the apparent redundancy of the ITN requirement to have both a performance bond and a damages bond. According to MorphoTrust, the Department agreed to review the performance and damages bonding requirements. Addendum 2 was issued by the Department and this addendum, among other things, changed section 2.5, Damages Bond, of the ITN to read as follows: The proposer shall supply to the Department with the performance bond a bond for the payment of any liquidated damages as may become due and payable to the Department arising hereunder, in the face amount of five hundred thousand dollars ($500,000.00). The bond must be renewed annually, no later than fourteen (14) business days prior to the beginning of the next contract or renewal period (if renewed). For the second and subsequent contract and renewal periods, the renewal bond amount must equal five hundred thousand dollars ($500,000.00). On July 24, 2012, Jim Sodero, on behalf of STS, sent an email to Jon Kosberg to reiterate his concerns about the bonding requirements. The email provides as follows: Hi Jon, Thank you very much for the opportunity to bid and demonstrate our product. We have reviewed your request for a BAFO, and are currently exploring our options. Unfortunately, as we had mentioned during our demonstration, it is very likely your bond requirements prevent us from proceeding further. We are once again looking for a bond company that will cover this 'no cost' proposal, but are having great difficulty. At the meeting you thought you might be able to offer the names of some companies that have done this in the past. We would very much appreciate any information you can provide. Again, the bonding company's main concerns are that the State is not accepting a risk correspondent to the value of the bond. There is some risk no question, but it is STS that will assume the greater risk of investing over 2 million dollars in equipment and manpower with the hope of financial recovery over a long term contract. They feel, and we have to agree, that the hardware investment itself should guarantee that this is a contract that we will not walk away from and will service to the best of our abilities. Another way of looking at this is to remember that STS proposed a "free off-the-shelf" system with a proven track record that has provided millions and millions of exams in many jurisdictions over a period of 18 years. Again, I don't wish to minimize that the State has some risk, but asking for a bond on a proven product with an impeccable record would be like telling Microsoft that you wish a multi-million dollar bond to cover any potential risk of losing information in Microsoft Word, after they have given you the product at no cost. Solutions Thru Software is extremely interested in this contract and at the prospect of working with the State of Florida, however at present we have a better chance than not of being forced to withdraw. This would be a terrible situation as Solutions Thru Software is the leading vendor in solutions such as this and has been doing so longer than any other company in the market. One possible compromise may be to add Florida as a named beneficiary on our insurance policy as an alternative to a Bond. Solutions Thru Software carries 2 million dollars in Liability, and we have had other customers accept this as a means of protecting their risk in the past. Any assistance you can provide would be greatly appreciated. Of course time is of the essence. If we cannot find a bonding company by your August 1st deadline, then STS will be forced to submit a No-Bid in response to the BAFO. Sincerely, Jim The following day, on July 25, 2012, Mr. Sodero sent Mr. Kosberg another email regarding the bonding requirement. This email provides, in part, as follows: The performance bond and damages bond continue to be issues. The companies that we are dealing with still believe this is a highly irregular request. To provide a quote from their latest email, "I'm not sure the Damages Bond will be something they'll want to consider. It's an odd request." We are proceeding with the application at any rate, and if you can provide other companies, we will proceed with the paper work for them as well. Addendum 3 issued by the Department, among other things, modified the Calendar of Events section of the ITN. The original ITN provided that "best and final offers" were due no later than 2:30 p.m. (EST), on August 1, 2012. Addendum 3 changed the due date for "best and final offers" to August 3, 2012. On July 27, 2012, STS sent additional emails to the Department regarding the bonding requirements. The first email was sent at 8:15 a.m. (CST), by Jim Sodero to Jon Kosberg. The email states as follows: Hi Jon, I just thought I would let you know that I am currently writing up a formal request to have the bond request eliminated or modified as per section 2.7. . . If there are any requirements which restrict competition, the respondent may request, in writing, to the Procurement Officer identified in Section 1.3 that the specifications be changed . . . The matter is not as to whether we can get a bond as it is looking like we will be able to. The problem is that we only have slightly over one week from the time the bond value was set, until the a [sic] guarantee of such bond must be provided with the BAFO. We have also had our lawyers review section 5.6 5.6 WITHDRAWAL OF SQSO: Withdrawal of SQSO's may be requested within 72 hours (excluding State holidays, Saturdays, and Sundays) after the opening time and date. Requests received in accordance with this provision may be granted by the Department upon proof of the impossibility to perform based upon an obvious error. They identified two problems with this section. The first is that it is not clear as to whether the 72 hours if [sic] from the opening of the original bid, or the BAFO. The second is that they do not believe there is sufficient guarantee that an obvious error can be demonstrated given that we have been discussing this bond limitation since the onset of preparing this bid. Please give me a call if you wish to discuss this prior to me sending out our formal request. Jim A few hours later, Jim Sodero, at 11:14 a.m.(CST), sent a second email to Jon Kosberg which states as follows: Mr. Kosberg, Re: Request for removal of Conditions that Restrict Competition As per section 2.7, Solutions Thru Software wishes to identify a requirement which restricts our ability to compete in this RFP process. This is a concern that was identified when submitting our submission for the original RFP. Some clarification was provided by the State through the BAFO request, but unfortunately, as it stands, this concern still prevents Florida from receiving a full complement of competitive bids for this RFP. The issue specifically concerns the bond requirements stated in sections 2.3 Proposal Bond, 2.4 Performance Bond, and 2.5 Damages Bond. Although bond requirements are common in many government contracts, they are not common in the industry of knowledge testing. This is due to the relatively low inherent risk assumed by the State. As the longest standing company in the business, Solutions Thru Software has not been required to obtain any bonds in our 18 years of impeccable service to the industry. As a "zero cost bid," the risk to the State of Florida is even less than is typical for the industry. For Florida, it is Solutions Thru Software who will finance and install literally millions of dollars in hardware and software for the purpose of knowledge testing for the State. The only risk to Florida is the potential of delay of service due to infrastructure failure, but no actual loss of service would exist as history has shown that the designed redundant system recovery is both seldom used and results in very short outages. Our request for a RFP/BAFO modification is based on: With 18 years of bond free service, it cannot be expected that STS would have a 'standing' bond in place or a history of successful bond completion. As the total value of the bonds was not known until the release of the BAFO, it was impossible to be pre-approved for the bonds in question, leaving only 9 days to apply and be approved. The bonding companies we have spoken with have said that this timeline for a new bond is not possible. The bonding companies have indicated that there is insufficient information on the surrender requirements for the bonds. In particular, they are confused as to the differences between the performance bond and the damages bond and why both must be renewed annually for the duration of the contract. In their opinion, the performance bond should cover the period between the onset of the contract and the final sign off by the state that Solutions Thru Software has installed an operational system that satisfies the terms of the contract. At this point, the performance bond should be released and the damages bond put in place and renewed annually to protect the State for potential losses during operation of the system. If both bonds must remain in place, then they believe the State must clearly identify the types of problems that will result in the surrendering of each bond. Although verbal assurance has been given that Solutions Thru Software 'should' have no difficulty in obtaining the performance bond, the bonding companies are more hesitant regarding the damages bond without further clarification being provided by the State. Given this situation Solutions Thru Software is very concerned with the risk of submitting the bid bond without receiving written assurance that the bid bond will be returned if the bonding companies are unwilling to accept the surrender conditions of the State. The State has recommend[ed] that we continue with the bid process with plans of using the "72 hour" clause to pull our bid if necessary, but upon review of this clause, it is still unclear if failure to secure a bond can be demonstrated as an obvious error given that we have already pointed out this shortcoming through the RFP and BAFO process. It is also very unlikely that 72 hours will make the difference on the bond approval, as the first thing that they need is clarification from the State. It is our opinion that the above points demonstrate an uneven playing field. Bonds have not been a standard requirement in this industry in the past and it cannot be expected that all companies will have 'standing' bonds in place. The only companies that will be able to respond to this RFP/BAFO will be companies that have other services that have required bonding, or possibly may have a track record that has warranted a need for bonding. Solutions Thru Software respectfully request that the State of Florida takes one of the following actions: Remove the bonding requirements Modify the requirements to state that the performance bond will ensure an operational system meeting requirements and that it will be returned upon State sign- off. And, modify the requirement of the damages bond to be annually renewable bonds to cover the period of operation. And, extend the requirement date for submission of the performance bond and damages bond and provide in writing that failure to obtain these bonds will not result in forfeiture of the bid bond. Thank you very much for your consideration of this request. Jim At approximately 11:30 a.m. (CST), on July 27, 2012, Jon Kosberg sent an email alerting prospective bidders to the fact that Addendum 3 had been posted the previous day. Mr. Sodero, in response to Mr. Kosberg's email, sent his third email of the day to Mr. Kosberg at 2:56 p.m. (CST), and stated therein the following: Thanks Jon, I appreciate you forwarding Addendum 3 to us. However, our request for re-evaluation of the bond requirements still stands on the grounds that it creates an uneven playing field. It does not address the concerns that our bonding companies have expressed to us. As well, it only allows companies that have other products that typically require bonds to be able to make the proposed deadline. That is, companies that have a precedent for this type of request or, they have substantial financial backing (i.e. millions if not billions of dollars) making their request to a bonding company much more palatable. Jim On Tuesday, July 31, 2012, at 3:19 p.m. (EST), Mr. Kosberg sent an email to MorphoTrust and STS advising that Addendum 4 had been posted. This addendum deleted the requirement for a damages bond as previously required by section 2.5 of the ITN. Less than an hour and a half after the posting of Addendum 4, Ms. Openshaw, vice-president of State and Local Sales for MorphoTrust, was speculating that the Department deleted the damages bonding requirement to assist STS. Specifically, Ms. Openshaw stated, "I wonder if this addendum is because STS said they needed relief on some of the 'bondage' or they would not bid." On Wednesday, August 1, 2012, Mr. Sodero emailed Mr. Kosberg regarding Addendum 4 and stated therein the following: Hi Jon, we are still at the office getting this proposal out the door, but I wanted to send you the latest from our bonding company, as we will have to remain diligent on this to meet the time line. We appreciate the changes you have made, however, they are still not meeting the main concerns of the bonding company. In explaining why the Department decided to delete the requirement for a damages bond, Mr. Kosberg indicated that the Department "decided to look [at] what would be in the best interests of the Department," and through this process determined that, [B]ecause of the unique model of this no cost solution and both vendors telling us that, you know, bonding may be redundant, we realized that we can achieve what we need in our requirement for bonding by holding strong to the performance bond and the proposal bond, while at the same point . . . remov[ing] the damages bond because of the redundancy, and we realized by removing that damages bond, we may ultimately realize better pricing for the third party administrator, because ultimately every requirement that we put in this ITN gets pawned off, you know, the price, to whoever may be paying for this particular type of service or item. (Transcript pg. 797) Petitioner suggested that section 2.7 of the ITN precluded the Department from considering and acting upon STS's request to change the bonding requirements. Section 2.7 of the ITN provides, in part, that if a proposer believes that there are requirements in the ITN that restrict competition, the proposer may request in writing that the requirements be changed by the Department and that any "requests for changes to the solicitation, must be received in writing by the Issuing Officer no later than the date and time specified in the Calendar of Events (May 1, 2012, at 4:00 p.m. Eastern Time)." Section 2.7 also states that "[a] respondent's failure to request changes by the date described above, shall be considered to constitute respondent's acceptance of Department's specifications." As an initial matter, it is important to note that both STS and MorphoTrust voiced concerns about the ITN's bonding requirements well after May 1, 2012. While it is true that section 2.7 of the ITN directs that requests for changes to the solicitation must be received by the Department by some date certain, the requirements of section 2.7 must be read in conjunction with the other provisions of the ITN. Section 1.3 of the ITN provides, in part, that "[t]he Procurement Officer, acting on behalf of the Department, is the sole point of contact outside of official conferences and meetings with the agency's team, with regard to all procurement matters relating to this solicitation, from the date of release of the solicitation until the Department's Notice of Intended Award or Decision is posted." Also, Addendum 1 to the ITN makes it clear that the Department reserves the right to post addendums to the ITN as necessary. In reading these provisions together, it is clear that the ITN process is one where proposers are allowed to voice concerns about "all procurement matters" relating to the solicitation during the window of time between the date of release of the solicitation and the posting of the Department's Notice of Intended Award or Decision. The Department, in accordance with section 2.7, is always free to inform a respondent, as appropriate, that their failure to adhere to the established timeline constitutes "acceptance of the Department's specifications." It cannot, however, be said that section 2.7 precludes, as a matter of law, the Department from deleting provisions of an ITN subsequent to the date by which proposers are to submit questions and recommended changes. Generally, the Department is free to make changes to the provisions of an ITN prior to the submission of BAFOs as long as the changes do not favor, or create the opportunity for favoritism of, one bidder over another. See generally City of Miami Beach v. Klinger, 179 So. 2d 864 (Fla. 3d DCA 1965). The Department credibly explained its rationale for deleting the damages bond requirement, and there was no contrary credible evidence offered by MorphoTrust demonstrating that the Department's stated reasons are pretextural. Petitioner's argument that the Department impermissibly favored STS by deleting from the ITN the damages bond requirement is not supported by credible competent evidence. The Relevant ITN Specifications are not Ambiguous Petitioner alleges that "the Department's proposed award is contrary to the statutory requirements for a competitive solicitation" and is "contrary to the bid documents" because "[t]he only two vendors who submitted BAFOs interpreted the required Price Proposal Form completely differently." In furtherance of the allegation, Petitioner contends that the proposers were confused throughout the procurement process about how they were going to "recoup the costs associated with the no cost contract" and that this confusion resulted in the proposers developing divergent assumptions and proposals that prevented the Department from being able to conduct "a comparable analysis of the proposals." Petitioner's allegations are without merit. As an initial matter, Petitioner's assertion, that its proposal was "completely different" from that of STS because of confusion about the specifications of the ITN, is a challenge to the specifications of the ITN. This challenge to the allegedly ambiguities in the specifications is untimely given that Petitioner failed to initiate a written protest to the alleged ambiguous specifications within 72 hours of posting of the solicitation. § 120.57(3)(b), Fla. Stat.; Capeletti Bros., Inc. v. Dep't. of Transp., 499 So. 2d 855 (Fla. 1st DCA 1986). Nevertheless, even if the merits of Petitioner's argument are considered, the plain language of the bid specifications do not reasonably support Petitioner's claim of ambiguity. It is well established that bid specifications "must be sufficiently specific to permit bidders to bid upon the same product, and factors thereof which are of such importance as to be given special consideration in determining the successful bidder should be so covered in the specifications as to detail to all bidders the standards anticipated, the tests the product must meet, and all factors upon which the product will be judged and the award made." Robinson's, Inc. v. Short, 146 So. 2d 108, 113 (Fla. 1st DCA 1962). In a competitive bid process, one of the main objectives is to be able to "make an exact comparison of bids." Clark v. Melson, 82 Fla. 230, 89 So. 495 (1921). In support of its contention that the bid specifications were confusing, Petitioner cites to the Price Proposal Form as reflected in Addendum 3. According to Petitioner, the portion of the Price Proposal Form that addresses the "cost to access system" reasonably caused Petitioner to believe that "the system" to which the form referred was the "knowledge testing solution" only, and thus, resulted in Petitioner not including in its proposal a fee for skills testing. This conclusion by Petitioner is not reasonable given that throughout the ITN, the Department made it clear that "the system" included the hardware, software, and other issues associated with the administration of driving skills exams. Section 1.1 of the ITN indicates that the Department is looking "for an [ADLTS], which is to be provided at no cost to the Department." In section 3.1 of the ITN, the Department provides "background" information about the current test administration system in Florida for both knowledge and skills examinations for Class E operators. Specifically, as to skills examinations, section 3.1 notes that applicants must pass both a knowledge and skills exam, that skills examinations currently "administered by State and Tax Collector Examiners are documented by hand, with pass/fail scores manually determined and entered into the driver license issuance system." Section 3.1 also notes that "currently, all operator skills exams are administered through State or Tax Collector Offices, with the exception of any teenager who completes a driver education program through their local high school." Section 3.1 of the ITN further notes that over the next several years, the Department "will provide an opportunity for third- parties to administer Class E driving skills exams" and that the Department "will expect third-parties administering Class E driving skills exams to use the [ADLTS] system sought [by the ITN] at their own expense." Section 3.1 clearly communicates a desire by the Department to include within the scope of the ITN issues related to skills testing. This conclusion is further supported by other provisions of the ITN. Section 3.2 of the ITN provides that the Department seeks a testing system that must include among other things "[a] tablet-based solution for the administration of Class E driver license skills exams." Section 3.3 of the ITN provides that the Department anticipates "mandating that third-party administrators of Class E driving skills exams use the tablet system sought [by the ITN]." Section 4.1 of the ITN provides that "the awarded Contractor must also provide an option for purchase of a mobile tablet-based hardware/software solution for the administration of driving skills exams that will update the central testing database." Section 4.2.8 of the ITN makes it clear that when implemented, "the system" must provide "replacements for the current test types, including Class E skills testing." While it may be true that Petitioner was confused, it cannot reasonably be said that the source of Petitioner's confusion was the specifications of the ITN. Contrary to Petitioner's allegation, the evidence establishes that STS's interpretation of the Price Proposal Form was consistent with the specifications of the ITN and that the specifications of the ITN were sufficiently clear so as to allow MorphoTrust and STS to bid on the same product. A more likely source of Petitioner's confusion about the scope of the ITN can be found in Petitioner's general unfamiliarity with the concept of combining knowledge and skill testing as part of a single solution. According to Petitioner, "[n]o jurisdiction in the United States has previously issued a competitive procurement requiring a solution combining knowledge tests and skills tests as part of a no cost solution." Whether this is a true statement or not, it is evident that the lens through which Petitioner viewed the ITN was one that focused on knowledge testing as being the only source for generating revenue from test fees. By contrast, STS, through its operations in Canada, has merged knowledge and skill testing as part of a no cost solution and saw the opportunity to do so in Florida based on the unambiguous specifications of the ITN. Petitioner's next basis for challenging the proposed award is that "the Department's proposed contract award is not based on a reasonable comparison of the anticipated overall cost of the two vendors' proposals and the proposed contract award fails to reflect a determination of best value to the state." Section 8.1 of the ITN provides that the "[a]ward will be to the highest scoring proposal, considering the technical proposal scoring and all costs for the five-year contract period." Section 8.9 of the ITN references the methodology for evaluation of costs for the five-year contract period and provides that the lowest cost proposal would be awarded 15 points. Based on the formula, Petitioner was awarded 2.5 cost proposal points, and STS was awarded 15 cost proposal points. When totaling all scoring categories, MorphoTrust received 168.1 points, and STS received 191.6 points. The Department's consideration of the technical and cost aspects of the respective proposals resulted in the proper determination of the "best value" to the State as required by section 287.012(4). As for the issue that the proposed contract award is not based on a reasonable comparison of the anticipated overall cost of the two vendors' proposals, Petitioner specifically alleges that the cost scoring system was flawed because the Department "did not recognize or incorporate the very significant pricing assumptions and cost differences of the vendors in evaluating the ITN responses." This allegation is not supported by credible competent evidence. Any pricing assumptions made by the proposers to the ITN should have as its foundation the information found in the ITN. Sections 3.1, 3.2, 3.3, and 3.6 of the ITN are particularly instructive to proposers when developing their "assumptions" for purposes of creating a cost proposal. These sections of the ITN describe the Department's current state of affairs and where the Department desires to be in the future with respect to driver license testing. In particular, Section 3.6 provides very specific information about the number of driver license examinations administered by type and how test volumes are likely to be impacted by future events. MorphoTrust's written price proposal details an $8,000.00 per entity, one-time tablet set-up fee, if there is a "minimum of 40 entities." In evaluating this assumption, it was noted by the Department that MorphoTrust's proposal is silent regarding what the fee would be if there are less than 40 entities. By comparison, STS's proposal reflects a per tablet cost of $2,219.50 regardless of the number of entities purchasing tablets. A MorphoTrust tablet costs nearly four times as much as a tablet offered by STS. MorphoTrust in its price proposal identified "knowledge testing tiers" where the price would be $10.00 per test for testing volumes between 100,000 to 149,999; $7.50 per test for testing volumes between 150,000 to 199,999; and $4.95 per test for testing volumes in excess of 200,000. By comparison, STS charges $4.42 per test for knowledge and skills tests respectively, with the price for each test decreasing if annual testing volumes exceed 500,000 tests per fiscal year. Each of these assumptions, as well as others, was considered by the Department when evaluating the respective price proposals. MorphoTrust argues that the Department's evaluation of STS's proposal failed to consider the fact that STS intends to charge $4.42 for each of the two portions of the knowledge test as opposed to a single charge of $4.42 for the entire knowledge test. In calculating the total cost of STS's proposal, the Department determined the cost to be $6,447.84 using a single knowledge test fee of $4.42. If STS's knowledge test fee is doubled to $8.84 to reflect the cost for charging for both portions of the knowledge test, then the total cost of the proposal, using the department's formula, increases to $6,452.00 dollars. The amount of $6,452.00, when compared to MorphoTrust's total cost of $38,659.90, is still the better value for the Department, third-party administrators, tax collectors, and ultimately the public. To the extent that MorphoTrust suggests that its pricing structure would have been different had it known that the ITN allowed for a per test fee for skills testing, this suggestion is without merit as explained elsewhere herein. Petitioner did not Prove STS's Proposal is Non-Responsive MorphoTrust alleges that STS's proposal should be rejected as non-responsive for three reasons. First, MorphoTrust contends that STS's BAFO proposal does not meet the mandatory performance bond requirements of the ITN. Section 2.4 of the ITN provides, in part, that "[t]he successful proposer shall supply no later than '14 calendar days of award,' a Performance Bond issued by an insurance company licensed by the State of Florida Department of Insurance." Because section 2.4 of the ITN uses the word "shall" in setting forth the performance bond requirement, this requirement is considered a mandatory provision of the ITN, and the proposal must provide an explanation of how the requirement will be satisfied. Section 1.5 of the ITN provides that the Department "reserves the right to accept alternative means of accomplishing mandatory requirements, with reasonable assurance of satisfactory results, without addendum to this ITN." STS proposed two options in its BAFO to satisfy the performance bond requirement. The two options provide as follows: Performance Bond Costs Option 1. Bonding companies have given us an estimate of the expected yearly cost of the bond, however we would like to have additional conversations with the State on surrender conditions. Solutions Thru Software will only charge the exact cost of the bond, without markup or handling fees. The following would be a one-time fee for the five year contract. $TBD (estimated at 3%) Performance Bond Costs Option 2. If the state prefers, the bond cost can be added onto the per test fee for an estimated additional. $TBD (estimated at 3%) On August 10, 2012, after submission of BAFOs by the proposers, Mr. Kosberg sent an email to Mr. Sodero at STS and stated therein the following: Jim, Per our discussion I am clarifying the following: The option related to the Performance Bond that will be suitable for the State would be to add the cost onto the per test fee, which you identified as an additional 3%, which totals $0.13 per test, bringing the per test fee from $4.29 to $4.42 per test. Mr. Sodero, in response to the inquiry from Mr. Kosberg, confirmed that the "13 cents per test is a firm price to cover all bond costs . . . [and that STS] will honor the 13 cents per test cost and assume any financial risk should cost go beyond this point." In considering STS's proffer with respect to the performance bond requirement, it is clear that in its BAFO response, and its clarifying statement related thereto, that STS affirmatively represented that it was prepared to comply with the performance bond requirement. Simply stated, STS's proposal as to the performance bond requirement is responsive. As the second ground for rejection of STS's BAFO as being non-responsive, MorphoTrust contends that STS impermissibly submitted a "post-scoring amendment" to its pricing proposal in violation of the specifications of the ITN. The alleged "post scoring amendment" occurred when STS clarified the extent to which the three-percent bond premium would impact its cost proposal. Section 1.48 of the ITN provides that "[t]he Department reserves the right to contact any and all proposers for the clarification of responses to th[e] solicitation in accordance with the attached Form PUR 1001, Paragraph 15." Form PUR 1001, paragraph 15, provides that "[b]efore award, the [Department] reserves the right to seek clarifications or request any information deemed necessary for proper evaluation of submissions from all respondents deemed eligible for Contract award." Contrary to the allegations, STS did not amend its BAFO in an improper manner as suggested by Petitioner, but, instead, merely clarified its BAFO in response to an inquiry from the Department as authorized by the ITN. In its third ground for rejection of STS's BAFO as being non-responsive, MorphoTrust contends that "[t]he STS proposal should . . . be rejected because it modified the required Price Proposal Form to include a per test cost to be charged for 'skills testing.'" This ground, like the others, is also without merit. Section 1.44 of the ITN provides, in part, as follows: "The proposal forms furnished must be submitted with your proposal. Forms to be filled out in pen or ink or typewritten with no alterations, changes or amendments made within." (emphasis added). As previously noted, section 1.5 of the ITN provides that "[t]he use of the terms 'shall,' 'must,' or 'will' (except to indicate simple futurity) in this solicitation indicates a mandatory requirement or condition." Consistent with section 1.5, the only relevant portion of section 1.44 that is mandatory is the requirement that "proposal forms must be submitted with [the] proposal" because this is the only portion of section 1.44 that uses the mandatory term "must." As for the portion of section 1.44 that deals with the substance of the form, it is only noted therein that the pricing forms are "to be" filled out a certain way. "To be" is not identified in the ITN as imposing a mandatory requirement or condition. Additionally, even if the original ITN can be read as requiring that the pricing form not be altered, changed, or amended, the Department, in the answers to questions 37 and 82 in Addendum 1 to the ITN, authorized changes, amendments, and alterations to the pricing forms. In response to question 37, the Department stated that "[t]here is only a Price Proposal Form [so] [p]lease utilize additional space in a Word, Excel or PDF format for pricing structure, if needed." Question 82 asks, "[i]n regards to the Pricing Proposal Form on page 42 of the ITN, can this form be modified to better present our pricing strategy to the State of Florida?" The Department, in reply to Question 82, responded "[y]es, this form can be modified utilizing Word, Excel or PDF to format a proposed pricing structure." Petitioner failed to present credible evidence demonstrating that STS altered the Price Proposal Form in a manner inconsistent with the requirements of the ITN.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Highway Safety and Motor Vehicles, enter a final order adopting the Findings of Fact and Conclusions of Law set forth herein and dismissing MorphoTrust's protest as untimely, as indicated, and otherwise unsubstantiated.3/ DONE AND ENTERED this 7th day of December, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2012.
The Issue Whether Respondent committed the violations alleged in the Notice of Specific Charges and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida (including, among others, Miami Palmetto Senior High School (Palmetto) and the Miami Lakes Education Center (MLEC)) and for otherwise providing public instruction to school-aged children in the county. At all times material to the instant case, Palmetto was the site from where William McCoogle, Ph.D., a School Board instructional employee, operated his own continuing education enterprise, Move on Towards Education and Training (M.O.T.E.T.), which offered courses, including driver education courses, for which teachers could receive college credit. MLEC opened in August 2000. It offers, among other things, classroom instruction in driver education, but, unlike Palmetto, it does not have a driving range (for practical instruction in driver education). James Parker is now, and has been for approximately the past three years, the principal of MLEC. From August 2000 until the end of the summer of 2006, James Willenborg was the "head" of the "driver's ed/health and physical education department" at MLEC, responsible for "lead[ing]" and "mentor[ing]" the teachers in the department. As part of his duties, he fielded questions from these teachers regarding a variety of matters, including certification/ endorsement requirements. When a question arose concerning driver education that he needed help answering, he consulted with the School Board's supervisor of driver education. Mr. Willenborg was certified in physical education (grades six through 12) and middle school mathematics. He did not have an endorsement in driver education. From 1996 until 2003, David Reams, Ph.D., was the School Board's supervisor of driver education. Among Dr. Reams' responsibilities as the supervisor of driver education was to make sure that the School Board's driver education teachers had a driver education endorsement or received an appropriate waiver of the endorsement requirement. Respondent graduated from Florida International University in 1992 with a Bachelor of Science degree in physical education (grades six through 12). In 2001, he received a Masters of Arts degree in religion from Trinity International University. Respondent has been employed by the School Board as a teacher since August 2000, when he was hired to teach the "theory [or] academic portion" of driver education at MLEC. Respondent remained at MLEC until his suspension, teaching driver education, as well as serving as the school's activities director and as a reading teacher. He was a dedicated, resourceful, and effective member of the school's instructional staff. As a School Board employee, Respondent is expected to conduct himself in accordance with School Board rules, including School Board Rules 6Gx13-4A-1.21 and 6Gx13-1.213. At all times material to the instant case, School Board Rule 6Gx13-4A-1.21I has provided as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. At all times material to the instant case, School Board Rule 6Gx13-4A-1.213 has provided, in pertinent part, as follows: Permanent Personnel CODE OF ETHICS INTRODUCCTION All . . . teachers . . ., because of their dual roles as public servants and educators are to be bound by the following Code of Ethics. Adherence to the Code of Ethics will create an environment of honesty and integrity and will aid in achieving the common mission of providing a safe and high quality education to all Miami-Dade County Public School students. As stated in the Code of Ethics of the Education Profession in Florida (State Board of Education Rule 6B-1.001): The educator values . . . the pursuit of truth . . . . . . . . The educator . . . will seek to exercise the best professional judgment and integrity. Aware of the importance of maintaining the respect and confidence of one's colleagues, students, parents, and other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. * * * APPLICATION This Code of Ethics applies to all . . . teachers . . . . Employees are subject to various other laws, rules, and regulations, including but not limited to "The Code of Ethics for the Education Profession in Florida and the Principles of Professional Conduct of the Education Profession in Florida," Chapter 6B-1.001 and 1.006, F.A.C., . . . which are incorporated herein by reference and this Code of Ethics should be viewed as additive to these laws, rules and regulations. . . . FUNDAMENTAL PRINCIPLES The fundamental principles upon which this Code of Ethics is predicated are as follows: * * * Honesty – Dealing truthfully with people, being sincere, not deceiving them nor stealing from them, not cheating nor lying. Integrity – Standing up for your beliefs about what is right and what is wrong and resisting social pressure to do wrong. * * * Responsibility – Thinking before you act and being accountable for your actions . . . . Each employee agrees and pledges: To abide by this Code of Ethics, making the well-being of the students and the honest performance of professional duties core guiding principles. To obey local, state and national laws, codes and regulations. * * * 5. To take responsibility and be accountable for his or her actions. * * * As an instructional employee of the School Board, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD (UTD Contract). Article V of the UTD Contract addresses the subject of "[e]mployer [r]ights." Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate bargaining unit employees "for just cause." Article XXI of the UTD Contract addresses the subject of "[e]mployee [r]ights and [d]ue [p]rocess." Section 1A of Article XXI provides, in part, as follows: Conferences-for-the-Record- Disciplinary Action and Reprimand The Board and Union recognize the principle of progressive discipline. The parties agree that disciplinary action may be consistent with the concept of progressive discipline when the Board deems it appropriate, and that the degree of discipline shall be reasonably related to the seriousness of the offense. 1. Any employee summoned to the office of a principal or immediate supervisor, where there exists no supervisor, ACCESS Superintendent, or the Senior Executive Director for Professional Standards, or their designees for a Conference-for-the- Record which may lead to disciplinary action or reprimand, shall have the right to request Union representation and shall be informed of this right. If Union representation is provided, the employee shall have the right to be accompanied at the Conference-for-the-Record by up to two representatives of the Union and shall be informed of this right. * * * A Conference-for-the-Record which may lead to disciplinary action or reprimand not held in accordance with these conditions, shall not be considered a part of the employee's personnel file of record, and neither the fact of the conference nor any statements made at the conference may be used in any subsequent proceedings or reprimand involving the employee. Where Union representation is provided herein, the employee shall be represented by the bargaining agent. The bargaining agent shall have the right to refuse representation in accordance with its own internal, nondiscriminatory rules. An employee may not be represented by an attorney in a conference-for-the-record. * * * Section 2 of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida Statutes, including the Administrative Procedures Act (APA) " At the time of his hire by the School Board in August 2000, although he held a teaching certificate in physical education (grades six through 12), Respondent did not have an endorsement in driver education; however, he was able to teach driver education at MLEC pursuant to, what was described to Respondent as, a "three-year waiver." In the latter part of his third year of teaching driver education at MLEC, Respondent inquired as to what he needed to do to obtain an endorsement in driver education. He first asked the head of his department at MLEC, Mr. Willenborg, who advised him that taking coursework through Dr. McCoogle's continuing education enterprise, M.O.T.E.T., at Palmetto was an acceptable means of obtaining such an endorsement.4 Respondent then contacted the School Board's supervisor of driver education, Dr. Reams, to verify the accuracy of the information Mr. Willenborg had provided him. Dr. Reams told Respondent, consistent with what Mr. Willenborg had said, that it was "acceptable for [Respondent] to go pursue [his] endorsement through attending the M.O.T.E.T. program." Dr. Reams mentioned only one other alternative: "go[ing] to the University of Florida in Gainesville . . . for the summer . . . and tak[ing] courses up there." Respondent reasonably relied on this advice that the "M.O.T.E.T. [program] was an acceptable option available to [him]." After speaking with Dr. Reams, Respondent telephoned Dr. McCoogle (using the telephone number Mr. Willenborg had given him) to express his interest in taking the coursework he needed to obtain an endorsement in driver education. Dr. McCoogle invited Respondent to meet him at Palmetto to further discuss the matter. Respondent met with Dr. McCoogle at Palmetto on or about April 12, 2003, at which time Respondent registered for three three-credit courses (Driver Education I, Driver Education II, and Organization and Administration of Driver Traffic Safety Education) offered by Eastern Oklahoma State College through M.O.T.E.T. During the registration process, he gave Dr. McCoogle a check in the amount of $1,442.00, representing almost half of the $2,885.00 he had to pay to take these three courses. Respondent subsequently (on May 17, 2003) paid Dr. McCoogle (by check) the remaining $1,443.00 he owed. Dr. McCoogle was Respondent's instructor for all three courses. He promised Respondent syllabi for these courses, but never delivered on his promise. For each of the three courses, Dr. McCoogle directed Respondent to go to the Palmetto driving range on three Saturdays when students were being taught and stay for two hours each visit (for a total of six hours) to observe the instruction taking place and "see how a driver's range was conducted." Respondent did as he was told by Dr. McCoogle. On three Saturdays in April and May, he spent a total of six hours (two hours each day) conducting observations at the Palmetto driving range. He spoke with the instructors who were teaching there on these days and observed them interact with their students (albeit not "inside the cars"). The only instruction he was able to observe was "what was taking place near the stand where the students sat." From his observations, he learned how the driving range was "managed." In making these observations, Respondent had a "driver's ed textbook that [he] referred to." Following his initial meeting with Dr. McCoogle on or about April 12, 2003, Respondent met with Dr. McCoogle on two subsequent occasions.5 Dr. McCoogle gave Respondent a grade of "A" in each of the three courses. To get these grades Respondent simply "did the observations that Dr. McCoogle required." Respondent was not required to attend any classroom lectures, to take any examinations or quizzes, to write any research papers, or to turn in any notes he took of the observations he made. Respondent received a transcript from Eastern Oklahoma State College reflecting the grades he had received in the three courses he had taken through M.O.T.E.T. He submitted a copy of his transcript, along with an application for endorsement in driver education, to the School Board's certification office (for transmission to the state Department of Education). Given what he had been told by Mr. Willenborg and Dr. Reams, he believed that, based on the coursework he had taken through M.O.T.E.T., he was eligible to receive the endorsement for which he was applying. Respondent ultimately obtained this endorsement from the state Department of Education. A criminal investigation of Dr. McCoogle and his M.O.T.E.T. program led the School Board police to investigate the allegation that Respondent had violated School Board Rule 6Gx13-4A-1.21 by engaging in the following conduct: Mr. Abner Reyes, Driver Education teacher, fraudulently obtained credit(s) from Eastern Oklahoma State College through the intricate and unlawful enterprise of Moving on Toward Education and Training, Inc. (MOTET), under the auspices of Mr. McCoogle. In essence, Mr. Reyes paid to obtain academic credit(s) for the purpose of certification, re- certification, and/or endorsements without availing himself of actual academic class time, work, or effort. This allegation was "substantiated" by the School Board police. The matter was then referred to the School Board's Office of Professional Standards. On February 24, 2006, Lucy Iturrey of the School Board's Office of Professional Standards, along with two other School Board administrators, conducted a conference-for-the- record with Respondent to address the allegation against him that had been "substantiated" by the School Board police. Respondent, who appeared without any legal or union representation, provided a statement to Ms. Iturrey describing what he had done to obtain his endorsement in driver education.6 The School Board's Superintendent of Schools, consistent with the recommendation made to his office by the School Board Attorney, recommended to the School Board that it suspend Respondent and initiate dismissal proceedings against him "based on the allegation that he fraudulently obtained and utilized credit(s) from Eastern Oklahoma State College through Moving On Toward Education and Training, Inc. (MOTET)." The School Board took such action at its March 15, 2006, meeting. After his suspension, Respondent was "basically unemployed for a little bit of time," doing some "odd jobs . . . for funds," until he became the executive director of Kidz Excel (which offers summer and after school programs for children), a position he presently holds.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order reinstating Respondent with back pay and dismissing the charges against him. DONE AND ENTERED this 13th day of February, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2007.
The Issue This case concerns a Petition for the Revocation of Teacher's Certificate brought by the State of Florida, Department of Education, through Lynnl Guettler, Chairman of the Executive Committee of the Professional Practices Council, against Stephan P. Lee, Respondent, who holds a Florida teaching certificate number 339018, Special Post Graduate, Rank IA, valid through June 30, 1987, covering the areas of social studies and junior college. The allegations of the Administrative Complaint accuse the Respondent with writing one or more notes to Alice Ann Lee during the fall of the school year 1978-79 at a time when Alice Ann Lee was a thirteen-year old student at Ft. Caroline Junior High School, Duval County, Florida. The allegations further assert that Ms. Lee is not a family relation of the Respondent. It is contended through the complaint that in one of the notes the Respondent indicated his apartment address and invited Alice Ann Lee to visit him at that apartment. It is alleged that on one evening during the first nine weeks of the 1978-79 school year, Alice Ann Lee and one Laura Edenfield went to the Respondent's apartment, where he served alcoholic beverages to the two named individuals, at a time, when these individuals were students and had not reached their majority. In connection with events of that evening, the Petitioner asserts that the Respondent smoked a "joint", viz. marijuana, which the students had brought to his apartment. Finally, it is alleged that the Respondent, through one of the notes written to Alice Ann Lee, invited her to go to St. Augustine, Florida, with him for a "day on the beach and in the shops" and to go "to a nice restaurant for dinner and drinks". For these acts, the Respondent purportedly has violated Section 231.28, Florida Statutes, in that the conduct alluded to constitutes gross immorality and personal conduct which reduces the effectiveness of the Respondent as an educator. The Respondent is also charged with the violation of Subsection 231.09(2), Florida Statutes, for not setting a proper example for students. The Respondent is further charged with a violation of Rule 6H-1.02(c), Florida Administrative Code, for failing to protect students from conditions harmful to learning, health and safety and with a violation of Rule 6B-1.02(d), Florida Administrative Cede, for conducting professional business in a way that exposed students to unnecessary embarrassment and disparagement.
Findings Of Fact This cause comes on for consideration based upon the Petitioner, State of Florida, Department of Education, Professional Practices Council's petition for the revocation of teaching certificate of Stephen P. Lee, Respondent. The exact details of that petition are related in the issues statement of this Recommended Order and that account in the issues statement is made a part of the Findings of Fact herein. The Respondent has answered the petition and requested a formal hearing under the provisions of subsection 120.57(1), Florida Statutes. The facts reveal that the Respondent was employed as a school teacher during the year 1978-79 in a position at Ft. Caroline Junior High School, Duval County, Florida. Two of the students who were being taught by the Respondent were Alice Ann Lee and Laura Edenfield. These individuals were students of the Respondent in separate classes. In the fall of 1978, Alice Ann Lee was thirteen years of age and Laura Edenfield was sixteen years of age. Both of the students were attending the ninth grade. The students in question in the academic year 1978-79 had made a poor academic showing and their attendance record was not satisfactory. In the first nine weeks of the school year, Alice Ann Lee wrote a note to the Respondent indicating that she felt that the Respondent was a nice teacher and she would like to be his friend. The Respondent replied to that note by a letter, a copy of which may be found as Petitioner's Exhibit #1 admitted in evidence. Beyond that point of the first reply there ensued a series of notes from the student Lee, two or three in number, and three additional notes or letters from the Respondent. Copies of the additional notes or letters written by the Respondent may be found as the Petitioner's Exhibits #2 through #4, admitted into evidence. In the Respondent's correspondence, Petitioner's Exhibit #2, he mentions his home address and tells Alice Ann Lee that she may call him by telephone when she feels so compelled. That correspondence also tells Alice Ann Lee that she is "welcome to drop by. . ." the Respondent's apartment if she would so desire. The student, Laura Edenfield, was a friend of Alice Ann Lee, and Edenfield had also been extended an invitation to visit the Respondent at his apartment. To assist the students in finding his home, the Respondent had drawn a diagram map directing them to his apartment and a copy of that diagram may be found as Petitioner's Exhibit #5 admitted into evidence. The students acted on Respondent Lee's invitation and called him one Friday night during the fall term of 1978-79. The call was made while the Respondent was at home in his apartment and the Respondent indicated that it would be acceptable if Alice Ann Lee and Laura Edenfield came to visit him on that evening. The students arrived at the Respondent's apartment between eight and nine p.m. on the night referred to above. The visit lasted until approximately midnight. While the students were in the apartment, the Respondent asked them if they would like to have a drink and among the choices offered were alcoholic beverages, to include beer and bourbon. Respondent recognized that the students were minors and not entitled to consume alcoholic, notwithstanding the fact that both students had previous experiences with alcoholic beverages before this occasion. The conversation between the Respondent and the students was social in nature as opposed to tutoring for school work or counseling. At one point during the visit, the Respondent put his arm around the shoulders of Alice Ann Lee. Alice Ann Lee consumed a number of glasses of bourbon which glass the Respondent continued to fill when the contents would be consumed. Laura Edenfield drank five or six containers of Coors beer. When the students left the apartment, Alice Ann Lee was inebriated and Laura Edenfield, who was driving, had less control of her faculties than when she entered the apartment. The Respondent walked the girls to their car and kissed Alice Ann Lee on her lips. The students returned to the Respondent's apartment on the next day, arriving between eight and nine p.m. and staying until approximately midnight. While at the apartment, the students consumed more alcoholic beverages, namely, beer. In addition, the students had brought marijuana with them to the apartment and offered the Respondent the opportunity to smoke the marijuana with them. The Respondent agreed and the students smoked the marijuana. Again, the nature of the conversation was as stated in discussing the first visit made by the students to the Respondent's apartment. Subsequent to these visits, Alice Ann Lee's mother discovered some of the letters which the Respondent had written her daughter, and in the course of attempting to have her daughter readmitted from a suspension situation, revealed the existence of these letters to the principal of Ft. Caroline Junior High School. This information was imparted in November, 1978. Alice Ann Lee's mother also went on a local television station news program at six p.m. and made comments about her daughter's relationship with the Respondent concerning the letters, etc. A knowledge of the circumstances of the relationship also was gained by students in the school and by faculty members and Alice Ann Lee felt embarrassed by the situation and missed classes as a result of the circumstances; however, Ms. Lee does not feel that the situation affected her overall classroom performance. The Respondent also asked Alice Ann Lee to go to St. Augustine, Florida, with him and the details of this proposed trip are set out in the Petitioner's Exhibit #4, one of the aforementioned notes from the Respondent to Alice Ann Lee. They did not make such a trip. After being confronted with the accusation concerning the letters and the visits by the students to his apartment, the Respondent tendered his resignation to the Duval County School Board without the necessity for further investigation by that body. The Respondent's explanation of this matter, which was offered in the course of the administrative hearing, was to the effect that be had no immoral or inappropriate intentions in his relationship with the students, particularly Alice Ann Lee. He stated that he was attempting to counsel troubled youngsters who had not been reached by other methods of counseling. He also stated that after conferring with members of his family and the faculty, he determined to write the letters in the fashion that he did, hoping to discourage Alice Ann Lee's infatuation by scaring her through proposals which made it appear that he was interested in her romantically. In retrospect, the Respondent indicated that he felt that his approach was wrong and that he did not have the necessary qualifications to undertake counseling directed to these young people.
Recommendation It is recommended that the teaching certificate of the Respondent, Stephen P. Lee, be suspended for a period of two (2) years. DONE AND ENTERED this 5th day of September, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207 Harry B. Mahon, Esquire Mahon, Mahon and Farley 350 East Adams Street Jacksonville, Florida 32202 Dr. Juhan Mixon Professional Practices Council Room 3, 319 West Madison Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA IN RE: STEPHEN P. LEE CASE NO. 79-1069 /
The Issue The parties stipulated that the quality of the gasoline was not at issue and that the sole issue was the reasonableness of the amount of the bond. The amount of the bond is based upon the price of the mislabeled gasoline sold or estimated to have been sold, not to exceed $1,000.00. The factual issue became how much gasoline had been sold since the tanks were mislabeled by IGS.
Findings Of Fact On June 4, 1985, a regular sampling inspection was conducted by staff of the Department of Agriculture at the Lil General Food Store, 2099 S. Goldenrod Road, Orlando, Florida. This inspection revealed that the regular unleaded gasoline had a 10.3 percent alcohol content but was not properly labeled, as required by law, as containing alcohol. The inspector accepted a $1,000.00 bond in the absence of any evidence by the vendor that less than 1,000 gallons at a price of $1.00 per gallon of mislabeled gasoline had been sold. On June 5, 1985, a regular sampling inspection was conducted by staff of the Department of Agriculture at the Circle K Store, 29495 S.W. 152nd Avenue, Homestead, Florida. This inspection revealed that the regular unleaded gasoline had a 9.6 percent alcohol content but was not properly labeled, as required by law, as containing alcohol. The inspector accepted a $1,000.00 bond in the absence of any evidence by the vendor that less than 1,000 gallons at a price of $1.00 per gallon of mislabeled gasoline had been sold. IGS refurbishes gasoline pumps, painting and replacing the labels on the pumps. IGS was engaged in this activity for Circle K in May 1985 and during that month refurbished both of the pumps subsequently cited by the Department of Agriculture. The Respondent was given the opportunity to present evidence regarding the date the signs on the pumps were refurbished and the amount of gasoline pumped after that date. The Respondent was unable to present evidence on the amount of gasoline actually pumped. The pumps in question had been refurbished nearly a month before the inspections.
Recommendation The bonds of $1,000.00 in the two instances above were reasonable and justified, given the violations of Section 5F-2.03(7), Florida Administrative Code (1875 Supp.) and Section 525.06, Florida Statutes. DONE AND ORDERED this 10th day of December 1985 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1985. COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Mayo Building - Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Patrick J. Donnelly, President IGS - Identification and Graphic Services Company, Inc. 3331 W. Main Tampa, Florida 33607
The Issue The issue in this case is whether or not Petitioner is entitled to a refund of the bond it posted in lieu of confiscation of allegedly mislabelled gasoline products.
Findings Of Fact Petitioner, AGI Service Corporation, owns and operates a Citgo service station located at 1599 West Flagler Street in Miami, Florida. The service station sells regular unleaded, unleaded plus and unleaded premium gasoline to the public. On February 18, 1991, James Carpinelli, the Respondent's inspector, visited the station to conduct an inspection and obtain samples of the gasoline Petitioner was offering for sale to the consuming public from its tanks and related gasoline pumps. Mr. Carpinelli took samples of all three types of gasoline offered for sale by Petitioner. The samples were forwarded to the Respondent's laboratory and were tested to determine whether they met Departmental standards for each type of gasoline. The Petitioner's "premium unleaded" pump indicated the octane or Anti Knock Index of the gasoline was 93. The "regular unleaded" pump indicated that the octane level was 87. The laboratory analysis of the samples revealed that the octane level of the gasoline taken from the "premium unleaded" pump was 87.4. The octane level of the gasoline taken from the "regular unleaded" pump was 93.0. Upon discovering the discrepancy in the octane levels, the Respondent seized the gasoline and immediately allowed the Petitioner to post a bond in the amount of $1,000. Upon the posting of the bond, the product was released back to the possession of the Petitioner and was allowed to be sold after the pumps were relabelled. Petitioner acquired ownership of the service station four days prior to the time of the inspection. At the time they opened the station, the new owners labelled the pumps based upon the information provided to them by the prior owners. The new owners had limited experience in the petroleum business and followed the guidance of the prior owners regarding labelling the pumps. It is clear that the pumps were inadvertently mislabelled based upon the information provided by the prior owners. The new owners sold "premium unleaded" at the price of "regular unleaded" and visa versa. Because more "premium unleaded" was sold at the price for regular, Petitioner lost money as a result of the mislabelling. The Department seeks to assess the full amount of the bond against the Petitioner in this proceeding. Respondent calculated the number of gallons of mislabelled gasoline that was sold based upon a delivery date of February 13, 1991. Those calculations indicate that 2,498 gallons were sold at a price of $1.259 per gallon. However, Respondent's calculations appear to begin at a time prior to Petitioner's ownership of the station. No evidence was presented as to how many gallons were sold while Petitioner owned the station. In addition, it is not clear when the mislabeling was done. Thus, no clear evidence was presented as to how many mislabeled gallons were sold by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Department of Agriculture and Consumer Services enter a Final Order granting the request of the Respondent for a refund of the bond posted and that the Department rescind its assessment in this case. DONE and ENTERED this 4th day of October, 1991, at Tallahassee, Florida. J. STEPHEN MENTON 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 4th day of October, 1991. COPIES FURNISHED: LOUIS PASCALI AND DONATO PASCALI QUALIFIED REPRESENTATIVES AGI SERVICE CORPORATION 1599 WEST FLAGLER STREET MIAMI, FL 33147 JAMES R. KELLY, ESQUIRE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES ROOM 514, MAYO BUILDING TALLAHASSEE, FL 32399-0800 HONORABLE BOB CRAWFORD COMMISSIONER OF AGRICULTURE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES THE CAPITOL, PL-10 TALLAHASSEE, FL 32399-0810 RICHARD TRITSCHLER, GENERAL COUNSEL DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 515 MAYO BUILDING TALLAHASSEE, FL 32399-0800 BRENDA HYATT, CHIEF BUREAU OF LICENSING & BOND DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 508 MAYO BUILDING TALLAHASSEE, FL 32399-0800
