Findings Of Fact On August 8, 1989, Respondent issued to prospective vendors a clear and unambiguous request for proposals (RFP) relating to the delivery to travel agency services for the School District of Palm Beach County, Florida. All proposals were due no later than August 28, 1989. Review of proposals, to include any interviews Respondent deemed necessary, was to take place between August 29 and September 18, 1989. The following appears in Paragraph 1.1 of the RFP, in the introductory section: 1.1 This is a Request for Proposal (RFP) to provide travel agency services to the School District of Palm Beach County, Florida; The School District operates 112 schools and 55 administrative departments in an area encompassing 2,332 square miles. The services include but are not limited to, purchases and delivery of air and other modes of travel tickets and related travel services. ... The introductory section of the RFP also provides the names, titles and telephone numbers of two persons to whom questions could be directed. The following appears in Paragraph 5.5 of the RFP, in the terms and conditions section: 5.5 The District reserves the right to reject any or all proposals, to further negotiate any proposal, to request clarification of information submitted in any proposal, and to request additional information from any Proposer. Proposals relating to the provision of the following services are solicited in Paragraph 6.1 of the RFP, the scope of services section: 6.1 The following are to be included in the specific tasks to be performed by the Travel Agency; however, it is not considered as a complete list of tasks: A. Deliver tickets, itineraries and other travel documents to the specific office or school requesting same. Proposals from several vendors were received, including proposals from Petitioner and ETA Travel Agency. Petitioner's response to Paragraph 6.1(A) was as follows: Ticket Delivery: will be made as follows: An On-Site reservation and ticketing facility at a mutually acceptable location on School Board administration property. Deliveries will be made to other offices as follows: Scheduled. Emergency. Delivery receipts. Via agency and outside courier service. ETA's response to Paragraph 6.1(A) was as follows: E.T.A. provides immediate free delivery of airline tickets and documents to school board travelers as detailed below: E.T.A.'s radio dispatched couriers provide unlimited deliveries of tickets and travel documents to schools and school board offices from Jupiter to Boca Raton as often as required throughout the business day. At E.T.A. Travel we never limit deliveries to once of twice a day. Tickets are delivered according to the school board's schedule - not ours. In addition to office delivery, E.T.A.'s couriers will deliver tickets and documents to the traveler's home or to other designated place whenever required. Deliveries to west area schools and school board offices are provided through the school board's "pony express" mail system, time permitting, or through federal express overnight delivery services. Deliveries to out-of-county travelers, or to west area travelers requiring expedited delivery, are provided through federal express overnight delivery service. E.T.A. Travel Agency utilizes a delivery and pickup receipt system to insure tracking of all airline tickets. To insure accountability all tickets delivered and picked up must be signed for and receipted at the time of exchange. While in the process of evaluating the respective proposals, Dr. Henry Boekhaff, Respondent's Associate Superintendent for Administration, contacted Mr. James Bertino, the owner of Petitioner to seek clarification as to the operation of Petitioner's proposed on-site ticketing and reservation facility. Mr. Bertino explained that there would be located on school board property a satellite ticket printer that could print airline tickets at the school board site. However, Mr. Bertino did not make it clear to Dr. Boekhoff that the travel documents printed on the satellite ticket printer would be delivered by Petitioner to each office requesting the travel document. Mr. Bertino's verbal description of the manner in which the satellite ticket printer would operate, along with Petitioner's written response to Paragraph 6.1(A), caused Dr. Boekhoff to conclude that Petitioner was not proposing to deliver travel documents to each requesting office. Respondent, following its review of Petitioner's proposal and following Dr. Boekhoff's conversation with Mr. Bertino, construed Petitioner's proposal as making a distinction between deliveries to offices in the administrative building in which the satellite ticket printer was to be located and deliveries to other offices. Respondent construed the proposal to require that persons whose offices were in the same building as the satellite ticket printer to pick up from the printer the tickets, itineraries, and other travel documents they had requested, while deliveries to offices in other administrative buildings and schools would be made by Petitioner. Respondent's construction of Petitioner's proposal was a reasonable construction of the written proposal presented by Petitioner and of the comments Mr. Bertino made to Dr. Boekhoff. Petitioner did not make it clear in either its response to Paragraph 6.1(A) or during the conversation between Mr. Bertino and Dr. Boekhoff that the Petitioner was proposing to deliver tickets to each office in the administrative building where the satellite facility would be located, a service that is of primary importance to Respondent. Following the evaluation of awards the proposal of ETA was selected, subject to the resolution of any timely protest. The services to be afforded by the vendor and the cost of those services were the items of primary importance to Respondent in evaluating and selecting a vendor. Petitioner's protest of the intended award of the contract to ETA was filed on a timely basis. During the informal hearing held in an attempt to resolve this dispute and in the formal hearing held in this proceeding, Petitioner, through Mr. Bertino, maintained that it intended by its response to Paragraph 6.1(A) to state that it would deliver tickets, itineraries, and travel related documents to every School Board office. Petitioner contends that it should be permitted to clarify its intentions at this time. Although Petitioner's response to Paragraph 6.1(A) did not cause its proposal to be rejected by Respondent, the Petitioner's failure to clearly state that it would deliver tickets, itineraries, and other travel documents to each requesting office was the primary reason the proposal of Petitioner was not selected. The services that ETA proposed in its response was the deciding factor in its favor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order which rejects the bid protest filed by International Tours of Juno Beach and which accepts the proposal submitted by ETA Travel Agency. DONE AND ENTERED this 7th day of February, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 7th day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6775BID The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 11 of the Recommended Order. The proposed findings of fact in paragraph 2 are rejected as being subordinate to the findings made in paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 3 are rejected, in part, as being contrary to the weight of the evidence. The evidence failed to establish that the proposal submitted by Petitioner was superior to the proposal submitted by ETA. What action the School Board may have taken had Petitioner clearly stated its proposal is speculative. The proposed findings of fact in paragraph 4 are adopted in part by paragraph 9 of the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. While Mr. Boekhoff did contact ETA during the evaluation period regarding its organizational structure, there is no contention that such contact was improper. The proposed findings of fact in paragraph 5 are rejected as being conclusions of law instead of findings of fact. The proposed findings of fact in paragraph 6 are rejected as being subordinate to the findings made in paragraph 10 of the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being subordinate to the findings made in Paragraph 13 or as being conclusions of law and not findings of fact. 8-10. The proposed findings of fact in paragraphs 8-10 are rejected as being conclusions of law and not findings of fact. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent: The proposed findings of fact in paragraph 1 are adopted in part by paragraph 1 of the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 11 of the Recommended Order. The proposed findings of fact in paragraph 3 are rejected as being subordinate to the findings made in paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 5 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 7 of the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 10 of the Recommended Order. COPIES FURNISHED: Donald R. Fountain, Jr., Esquire Lytal & Reiter 515 North Flagler Drive Post Office Box 024466 West Palm Beach, Florida 33402-4466 Robert A. Rosillo, Esquire School of Palm Beach County 3970 RCA Boulevard Suite 7010 Palm Beach Gardens, Florida 33410 Thomas J. Mills Superintendent of Schools The School Board of Palm Beach County, Florida Post Office Box 24690 West Palm Beach, Florida 33416-4690
The Issue Are the February 13, 2014, letters of Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), requiring totalisator reports to "identify the Florida [permitholder] in reports as both host and guest when applicable," statements that amount to a rule, as defined in section 120.52(16), Florida Statutes (2013).1/
Findings Of Fact Florida permits and regulates betting on greyhound racing,2/ jai alai games,3/ quarter horse racing,4/ and harness racing.5/ The Division is responsible for administration of Florida's statutes and rules governing this betting. JKC and OPKC are separate, individually permitted facilities. Jacksonville Greyhound Racing owns and operates both the JKC and the OPKC. It is not, however, a party to this proceeding. The betting system is a pari-mutuel system. This "means a system of betting on races or games in which the winners divide the total amount bet, after deducting management expenses and taxes, in proportion to the sums they have wagered individually and with regard to the odds assigned to particular outcomes."6/ Each race, contest, or game is an "event."7/ The aggregate wagers called "contributions" to pari-mutuel pools are labeled "handle." § 550.002(13), Fla. Stat. An "intertrack wager" is "a particular form of pari-mutuel wagering in which wagers are accepted at a permitted, in-state track, fronton, or pari-mutuel facility on a race or game transmitted from and performed live at, or simulcast signal rebroadcast from another in-state pari-mutuel facility."8/ The JKC offers intertrack wagering at its permitted facility located in Jacksonville, Florida. It does not offer live events. The OPKC offers intertrack wagering and wagering on live events conducted at its permitted facility in Orange Park. The Racetracks are host tracks when they transmit live greyhound racing to other in-state and out-of-state facilities for off-track wagers.9/ They are guest tracks when wagers are made at their separate permitted locations on pari-mutuel races or games conducted at third-party facilities.10/ Florida statutes and the Division's rules require detailed reports from permitholders to the Division and other permitholders, including tables of wagers, pool data, and winnings.11/ These reports are generated by "totalisators." A totalisator is "the computer system used to accumulate wagers, record sales, calculate payoffs, and display wagering data on a display device that is located at a pari-mutuel facility."12/ The Division's Form DBPR-PMW-3570 requires host permitholders to report intertrack wagering "handle" by guest on a monthly basis. The host permitholders must sign and attest to the accuracy of the information submitted in the form. Also, Florida Administrative Code Rule 61D-7.023(2) requires generation of reports for each pool within each contest to be printed immediately after the official order of finish is declared. On March 9, 2012, the Division issued a letter to AmTote International ("AmTote"), a licensed totalisator company, and copied Jacksonville Greyhound Racing, notifying AmTote that Florida permitholders and the Division would need a breakdown of the handle of the Racetracks in order to pay appropriate purses, taxes, or other liabilities. It sent a similar letter to other totalisator companies. This was an effort to be accommodating and flexible. The letter concluded: "Please continue to provide handle information broken down by source, which is required by rule to all those in the state of Florida who have been users of that information in the past." The Racetracks rely upon AmTote to provide their totalisator services. Between March 2012 and March 2014, AmTote commingled the Racetracks' wagering data into a single "community," reporting all wagering as coming from the OPKC in order to reduce interface fees paid for the totalisator service. The guest track wagering data and reports exchanged with the other totalisator companies from the Racetracks show up on the AmTote settlement files as OPKC. The reports do not differentiate between wagers made at each of the Racetracks. Before March 1, 2012, AmTote segregated wagering data as coming from either JKC or OPKC. During the two years reported by the Racetracks as a single community, the Racetracks separately provided Florida host tracks a supplemental report breaking down the sources within the common community. The Racetracks provided these supplemental reports--via email or other means--to assist Florida host tracks with reporting requirements. They did not provide them simultaneously with the other reports and data. There were frequently errors that had to be identified and corrected. In an effort to be flexible and work with the Racetracks, the Division tolerated this method of reporting for two years. But it created problems for both the Division and for the other permitholders in the state. On February 13, 2014, the Division prepared and issued correspondence to AmTote, as well as the two other Florida totalisator companies, announcing that it intended to require proper reporting of the data required by rule, including reports of each permitholder. The letter states: This letter is to address the issue of proper and complete identification of each individual permitholder in totalisator reports. Rule 61D-7.024(1), Florida Administrative Code, requires all Florida pari-mutuel permitholders to use an electronically operated totalisator. Rule 61D-7.023(9), F.A.C. states in part, ". . . Each report shall include the permitholder's name . . .," and Rule 61D-7.024(4), F.A.C. states in part, ". . . reports shall be kept logically separate . . . ." Further, Rule 61D-7.023(1), F.A.C. states, "The totalisator licensee shall be responsible for the correctness of all tote produced mutual accounting reports. " In accordance with Florida Administrative Code, the division requires each permitholder to be properly and uniquely identified by totalisator reports provided to the division and to the permitholders. In addition, the totalisators are responsible for the correctness of all tote produced mutual accounting reports. Reports provided after February 28, 2014 must properly identify the Florida Permitholder in reports as both host and guest when applicable. Improper identification of permitholders will be considered a violation of the Florida Administrative Code. On March 11, 2014, AmTote began segregating wagering data from the Racetracks in compliance with the February 13, 2014, letter. The Racetracks will incur additional financial costs if AmTote ends the reporting of all wagering data as coming from OPKC for purposes of reports provided to other totalisator companies licensed in Florida and begins segregating their wagering data by individual permitholders. These costs stem from additional interface fees incurred outside the regulatory jurisdiction of Florida. The only evidence of these costs is the testimony of Matthew Kroetz, vice-president of Operations for Jacksonville Greyhound Racing. The testimony of Mr. Kroetz about the cost of the required change is confusing because he mingles assumed costs for a third closed track as if it were reactivated and operational. Bayard Raceways is that track. The Racetracks' parent company owns it. But the likelihood and timing of that reactivation is speculative. In addition, Bayard is not a party to this proceeding. Neither is the parent company. Mr. Kroetz' testimony establishes that the current cost for the two petitioners is a total of $1,500 per month. He projects that costs for reporting, as the letter requires, would be $4,500 per month for the two Petitioners and the track that may reopen in the future. That testimony is unrebutted and consistent with his testimony that the recurring fees for all three tracks would total over $50,000 annually. It is accepted as accurate. But the $3,000 increase from $1,500 to $4,500 per month is not due solely to the reporting requirement. It is also due to lumping in the non-active track. The evidence does not support including that track, the opening of which is speculative. The monthly fee for the two operating tracks is $1,500 divided by two or $750. Subtracting that, as the current cost for an existing track, from the $3,000 increase, lowers the estimated increase to $2,250. Dividing that by three gives the increased monthly cost per track, or $750 per track. This results in the projected annual cost increase for each of the Racetracks of $9,000. Although Mr. Kroetz testified in summary that the changes would result in an increased cost of "about a thousand dollars per month per facility," that testimony is not persuasive. It is inconsistent with the more detailed testimony relied upon above and would require the improbable and unsupported conclusion that the monthly increase would be more than the existing fees.
The Issue Whether the Department of General Services should disqualify as unresponsive Kodak's bid for Classes 11 and 12, Types I, III, IV of Bid No. 402- 600-38-B, Walk-Up Convenience Copiers, Plain Bond Paper.
Findings Of Fact The Department is the state agency empowered to contract for the purchase, lease, or acquisition of all commodities required by any state agency under competition bidding or by contractual negotiation. On April 26, 1984, the Department issued Invitation to Bid No. 402-600- 38-8 entitled Walk-up Convenience Copiers, Plain Bond Paper. The bid invitation categorized walk-up convenience copiers by type, class, and acquisition plan. The specifications provided for four types and twelve classes of copiers with four acquisition plans--one-year lease, two-year lease, three-year lease, and outright purchase. Kodak responded to the bid invitation on June 26, 1984, by submitting bids on all acquisition plans for the following categories: Type I, Classes 8- 12; Type II, Class 12, Type III, Classes 8-12; and Type IV, Classes 8-12. The Department posted its decision on the Copier Bid on August 9, 1984, at which time the Department indicated its intent to reject all bids submittsd by Kodak on the ground that Kodak's bid contained additional terms and conditions. Addendum A to Kodak's bids contains the language which the Department found to be additional terms and conditions and consists of an explanation of a quantity discount offered by Kodak to all state agencies. Kodak's bids were the lowest bids received by the Department of the two-and three-year lease plans for the following categories: Type I, Classes 11 and 12 Type III, Classes 11 and 12 Type IV, Classes 11 and 12 In addition, Kodak's bids were the lowest bids for the one-year lease plans on Class 12 of Type I, III, and IV. The quantity discount reflected in Addendum A does not affect the bid prices (price per copy made) submitted by Kodak for any of the machine categories or acquisition plans on which Kodak bid and was not considered by the Department in finding Kodak to be the low bidder in those categories specified above. The invitation to bid (ITB) contains general and special conditions. The "general conditions" are conditions that apply to all contracts bid by the state; the "special conditions" are the terms and conditions that apply specifically to the invitation to bid under consideration. The general conditions provide that "[a]ny and all special conditions and specifications attached hereto which vary from these general conditions shall have precedence." Section 4(b) of the general conditions provides: "Under Florida law use of State contracts shall be available to political subdivisions (county, county board of public instruction, municipal, or other local public agency or authority) and State Universities, which may desire to purchase under the terms and conditions of the contract. Such purchases shall be exempt from the competitive bid requirements otherwise applying to their purchases." The special conditions set forth the purpose of the bid as the establishment of "....a 12 month contract for the purchase of Walk-up Convenience Copiers: Plain Bond Paper by all State of Florida agencies and institutions." The purpose provision does not mention political subdivisions. However, several special conditions of the ITB refer to political subdivisions. Under "Estimated Quantities" it states: "It is anticipated that the State of Florida agencies and other eligible users will expend approximately $1,000,000 under any term contract resulting from this bid." Other eligible users include political subdivisions. The condition entitled "Distribution of Literature" provides: "Successful bidder will be required to furnish State agencies and political subdivisions...with descriptive literature..." The condition entitled "Summary of Total Sales" provides that "Total Dollar sales to political subdivisions may be submitted in lieu of the detailed information required for State and university placements." Although political subdivisions may purchase under the terms and conditions of the state copier contract, certain of the special conditions distinquish between state agencies and political subdivisions. As mentioned above, the ITB provides that total dollar sales to political subdivisions may be submitted in lieu of the information required for state and university placement. Further, the ITB requires each bidder to identify its equity accrual plan and sets forth minimum requirements that the plan must meet. One of the minimum requirements refers to State agencies only, directing that "[t]he State shall have the right to transfer the equipment from one State agency to another State agency without the loss of equity accrued." The special condition at issue in this proceeding is entitled" Quantity Discounts". It provides: "Bidder is urged to offer additional discounts for one time delivery of large single orders of any assortment of items." In response to this provision, Kodak included as part of its bid "Addendum A", which reflects the quantity discount offered by Kodak to major customers. The discounts offered by Kodak are based upon the total number of machines installed in state agencies at the time invoices are sent out. If the state has fewer than seventy-five machines installed, it enjoys no discount and pays the full amount indicated on the price sheets submitted in Kodak's bid. If a seventy-fifth machine is installed, the state receives a two percent discount off the bottom line of each monthly invoice on all Kodak machines installed. When the number of Kodak machines exceeds 149 the state receives a three percent discount, and when the number of machines exceeds 199, a four percent discount is applied. When the discount level changes either up or down due to a change in the machine base, Kodak provides 60 days advance written notice prior to applying the new discount level. Kodak's billing system utilizes a computer which tracks the number of machines and applies the quantity discounts. Each individual account or customer has a "custom master" in the computer, which is a computer record consisting of the name of the company, the address, the customer number, and information concerning invoices. The "custom master" is used in billing the customer. When quantity discounts are involved, a master agreement number and/or a common owner number is assigned and that number is placed on each individual custom master in the system that comes under the master agreement. Thus, each individual account has both an individual customer number and a master agreement number. When the computer prepares the bill, it automatically counts the number of machines installed with all customers who share the same master agreement number. Because of the billing system, any machine that is included in the billing is also included in determining the quantity discount. If the machine is not counted in the machine base, the customer is not being charged for the machine. Paragraph II of Addendum A provides: 11. Eligible Users Eligibility under the Quantity Discount Schedule listed below will be exclusively for installations of KODAK EKTAPRINT Copier-Duplicator and Duplicator models within the State of Florida's Government departments, agencies, and State universities. The Quantity Discount Schedule does not apply to installations of KODAK EKTAPRINT Copier-Duplicator and Duplicator models within political subdivisions in the State of Florida (county, county board of public instruction, municipal, or other local public agency or authority). This provision prevents the state from receiving discounts based upon machines purchased by political subdivisions, and also prevents political subdivisions from receiving quantity discount credit for machines placed with state agencies and universities. In other words, the machine base for state agencies and universities would be determined solely by the number of machines installed with state agencies and universities; machines installed within political subdivisions would not be counted in that machine base because political subdivisions would not have the master agreement number assigned to state agencies and universities. Although Kodak contends that each political subdivision would be eligible for quantity discounts based upon the number of machines installed within that particular political subdivision, that provision was not included in Addendum A. Kodak did not address political subdivisions in the quantity discount provision because the purpose of the ITB, as stated in the special conditions, was to establish a contract for state agencies and because the quantity discount provision did not specify that any quantity discounts offered must include political subdivisions. After the copier contract is awarded, each eligible user places its orders for copiers from the contract. The orders do not go through the Department, and the Department does not have a system that indicates how many machines are installed in state agencies and universities. Although the Department does not have a system for independently monitoring the number of machines installed, under Kodak's billing system the state may elect to receive a monthly or quarterly printout which lists each machine installed by its purchaser and provides information relating to the machine's location, type, and acquisition plan. In addition, the state may designate a central location to receive copies of all invoices sent out on each machine installed within the state system. The Department determined that Kodak's bids should be disqualified as containing additional terms and conditions. Specifically, the provision of Addendum A excluding political subdivisions from participation in the quantity discount offered and the Department's inability to independently monitor the quantity discount were identified as the additional terms and conditions. If not for Addendum A, Kodak would have been awarded the contract on the categories for which it was the low bidder. Had Kodak failed to provide any quantity discounts it would have been awarded the contract. Had Kodak omitted Addendum A from its bids, but automatically accorded to the state its quantity discount through its billing system, the state would have paid the discounted prices. The inclusion of Addendum A in its bids does not give Kodak an advantage or benefit not enjoyed by other bidders. All bidders were "urged to offer additional discounts...; however, the quantity discounts offered were not considered in determining the low bidder. Therefore, the inclusion of the quantity discount offered by Kodak could not have given it a competitive advantage not enjoyed by other bidders. The inclusion of Addendum A does not adversely impact the interests of eligible users of state contracts. Had Addendum A not been included in Kodak's bids, Kodak would have been awarded the contract in the categories previously specified, and all eligible users would pay the full contract price. Political subdivisions are not adversely affected by the inclusion of Addendum A because they will pay no more than they would have paid had Kodak failed to provide any quantity discounts. State agencies and universities are not adversely affected by the quantity discount offered because they will pay the same or less than they would have paid had Kodak not included Addendum A.
Recommendation Based on the foregoing, it is RECOMMENDED that the State of Florida, Department of General Services, award to Eastman Kodak Company the following portions of Bid Number 402-600-38- B: Class 11, Types I, III, IV - two and three year lease. Class 12, Types I, III, IV - one, two and three year lease. DONE and ENTERED this 26th day of February, 1985, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway The Oakland Building Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1985.
Findings Of Fact By publication in the Florida Administrative Weekly, Volume 20, Number 32, August 12, 1994, the Department of Banking and Finance (Department) gave notice of a Request for Proposals (RFP No. BF5/94-95) seeking public auction services related to the disposition of abandoned property. Timely proposals were submitted by Golden Gavel Auctioneers, Fisher Auction Company, Inc., Wayne Smith Auction Company, and Hamburg Auction Company. The RFP states that proposals will be evaluated in three phases for compliance with mandatory requirements (Phase I), quality of technical proposals (Phase II) and fee schedules (Phase III). Proposals were evaluated by three employees of the Department. The RFP provided that the criteria were weighted to permit each proposal to be numerically ranked. Each evaluator could award a score of up to 100 points according to evaluation criteria set forth in the RFP. The contract award would go to the proposal receiving the highest score from the 300 total points available. The Petitioner presented no evidence that the Phases I and II proposal evaluations were inappropriate or otherwise failed to meet the requirements of law. Phase III of the evaluation process was directed toward examination of the proposed fees to be paid to the successful bidder. As to the award of points for the fee schedule, the RFP provides as follows: For each proposal received acknowledging the services outlined in this RFP, the corresponding Fee Schedule...will be examined. All fee proposals must be expressed solely in the form of a percentage of the gross sales of property sold. A total maximum value of seventy-five (75) pts. will be awarded (out of total of 100 pts) to the lowest proposed fee percentage submitted. All other proposals will be awarded points based on the following formula Points Awarded for Fee percentage = 75 x (1 - C) C = Difference of proposal fee percentage from lowest proposal; This formula only includes valid proposals. Decimals will be rounded to the nearest whole number; .5 points will be rounded upward. The Petitioner proposed the lowest fee schedule at 9.45 percent of gross sales and, as the lowest fee proposal, received the full 75 points available for Phase III. Fisher Auction Company was the second lowest bidder, proposing a fee of 10 percent of gross sales. Application of the formula and calculation of the points awarded was completed according to the following steps: Step 1. 75 x (1 - C) Step 2. 75 x [1 - (.10 - .0945)] (Note that "C" is the difference of Fisher's 10 percent fee from Golden Gavel's 9.45) Step 3. 75 x (1 - .0055) Step 4. 75 x .9945 Step 5. 74.58 As provided in the RFP, scores were rounded to the nearest whole numbers. Fisher's point total of 74.58 was rounded to an award of 75 points for Phase III. Based on evaluation by the three Department employees, the following scores were awarded: Fisher Auction Company - 299 points Golden Gavel Auctioneers - 287 points Wayne Evan Auction Company - 284 points Hamburg Auction Company - 273 points The Department posted the results at 3:30 p.m. on September 16, 1994, proposing an award to Fisher. The Petitioner asserts that in calculating the point awards under Phase III of the evaluation process, the evaluator should use the percentage difference between the proposed fees rather than the numerical difference as was done by the Department. The result of such application would be a broader range in the points awarded under Phase III of the evaluation. The Petitioner suggests that to do otherwise is contrary to the RFP's stated intention to provide a weighted score to each proposal. There is no evidence that the Department's application of the formula is inappropriate or that the calculation of points related to fee schedules was fraudulent, arbitrary, illegal or dishonest. There is no evidence that the Petitioner questioned or objected to the formula set forth in the RFP prior to the announcement of the intended award.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Banking and Finance enter a Final Order DISMISSING the Petition filed in this case and making an award to the Intervenor. DONE and RECOMMENDED this 21st day of November, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 21st day of November, 1994. APPENDIX TO CASE NO. 94-5734BID The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3, 6-10. Rejected, unnecessary. Rejected, subordinate. Rejected, the evidence does not indicate that "75 x 3" was part of the formula. Otherwise accepted as modified and included herein. Rejected, the evidence does not indicate that "75 x 3" was part of the formula. There is no evidence that the Department's application of the formula was inappropriate or contrary to the language of the RFP. Respondent and Intervenor The Respondent-Intervenor's jointly submitted proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3, 6-10. Rejected, unnecessary. Rejected, subordinate. COPIES FURNISHED: Hon. Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking and Finance Suite 1302, The Capitol Tallahassee, Florida 32399-0350 Dale M. Vash, Esquire FOWLER, WHITE, GILLEN, BOGGS, VILLAREAL, & BANKER, P.A. 501 East Kennedy Boulevard Post Office Box 1438 Tampa, Florida 33601 Margaret S. Karniewicz, Esquire Department of Banking and Finance Suite 1302, The Capitol Tallahassee, Florida 32399-0350 Bernard T. Moyle, Esquire BENSON, MOYLE & CHAMBERS Suite 1602, One Financial Plaza Fort Lauderdale, Florida 33394-1697
The Issue Whether the Proposed Amendment of Rule 7E-6.007, Florida Administrative Code, is arbitrary and capricious and thus constitutes an invalid exercise of delegated authority?
Findings Of Fact The Petitioner, Hialeah, Inc., operates a race track (hereinafter referred to as the "Track") located in Dade County, Florida. The Petitioner is licensed by the Respondent. In December, 1981, the Petitioner was granted permission by letter from Bob Smith, then Director of the Respondent, the Department of Business Regulation, Division of Pari-Mutuel Wagering, to operate Tel-A-Betting. Robert Rosenburg, Director of the Respondent after Mr. Smith, also approved Tel-A- Betting in a letter to the Petitioner. The Petitioner has continuously operated Tel-A-Betting for more than six years. The Petitioner instituted Tel-A-Betting in reliance on the Respondent's approval of Tel-A-Betting. If approval had not been granted to the Petitioner from the Respondent, the Petitioner would not have established Tel-A-Betting. Tel-A-Betting is a procedure for placing wagers on races at the Petitioner's Track. Persons utilizing this system (hereinafter referred to as "Account Holders"), open an account with the Petitioner by making a deposit of $100.00 or more with the Petitioner and paying a $25.00 fee. The funds deposited with the Petitioner are received and accounted for in accounts maintained at the Track. Once an account is opened, a plastic card which contains, among other information, an account number and an "800," toll-free, telephone number is issued to the Account Holder. Wagers may then be placed with the Petitioner by the Account Holder calling the "800" number and placing a wager with a telephone operator/pari-mutuel clerk located at the Track. The Account Holder identifies himself or herself by giving the operator the account number and a code name designated by the Account Holder when the account is opened. The account number is programmed into a computer to determine whether the Account Holder has sufficient funds in the account to make the wager. If the funds in the account are sufficient to cover the wager, the wager is entered into the computer. If the Account Holder wins the wager, the payoff is entered into his or her account. Calls to place wagers through the Tel-A-Betting program can be made from anywhere in Florida and the person making the call and wager need not be physically present at the Track to make the wager. Wagers taken through Tel-A-Betting are only made on races at the Track. Tel-A-Betting allows the Petitioner to receive wagered funds as part of its pari-mutuel pool from persons located anywhere in the State of Florida. When a wager is made through Tel-A-Betting, the operator/pari-mutuel clerk cannot establish the age or identity of the person placing the wager. The Petitioner is the only race track permit holder in the State of Florida which employs Tel-A-Betting. The Proposed Amendment of Rule 7E-6.007, Florida Administrative Code, if valid, will prohibit the Petitioner from continuing the use of Tel-A-Betting. The Respondent has not received any complaints about the use of Tel-A- Betting by minors or any other abuses. No evidence was presented that minors have made, or attempted to make, wagers through the use of Tel-A-Betting. The Respondent has not received any objections to Tel-A-Betting or complaints about unfair competition from other racetrack permit holders.
The Issue Whether proposed rules 61D-7.021(5)(f) and 61D-7.021(5)(g) are invalid exercises of legislative delegated authority pursuant to Subsection 120.52(8), Florida Statutes (2004),2 and, if so, whether Petitioner is entitled to an award of costs and attorney's fees pursuant to Subsection 120.595(2), Florida Statutes.
Findings Of Fact Calder is a Florida corporation and a pari-mutuel permitholder permitted and licensed by the Department pursuant to Chapter 550, Florida Statutes. Calder seeks to challenge proposed amendments to Florida Administrative Code Rule 61D-7.021. Specifically, Calder challenges Subsection (5)(f), as noticed in the Florida Administrative Weekly, Volume 30, Number 32, August 6, 2004, and Subsection (5)(g), as noticed in the Florida Administrative Weekly, Volume 30, Number 21, May 21, 2004.3 The challenged amendments shall be referred to as the "Proposed Rules." The Proposed Rules provide: For tickets cashed more than 30 days after the purchase of the ticket, the ticket may not be cashed at any type of patron- operated machine or terminal. The totalisator system must be configured to instruct patrons on how to cash the ticket. The totalisator system must have the ability to identify such tickets and indicate to a teller that the ticket falls within this category. Calder is a licensed and permitted pari-mutuel facility which sells tickets and uses totalisator machines, and the Proposed Rules would govern the operation of such facility. The Proposed Rules have the effect of directly regulating the operation of Calder's pari-mutuel facility, and, as such, Calder is substantially affected by the Proposed Rules. The parties have stipulated that Calder "may properly challenge both Proposed Rules 61D-7.021(5)(f) and 61D-7.021(5)(g)." A pari-mutuel ticket evidences participation in a pari-mutuel pool. A winning or refundable pari-mutuel ticket belongs to the purchaser and may be claimed by the purchaser for a period of one year after the date the pari-mutuel ticket was issued. An "outs" or "outs ticket" is a winning or refundable pari-mutuel ticket which is not redeemed. If a ticket remains unclaimed, uncashed, or abandoned after one year from the date of issuance, such uncashed ticket escheats to the state unless the ticket was for a live race held by a thoroughbred permitholder such as Calder, in which case the funds are retained by the permitholder conducting the race. A totalisator machine is "the computer system used to accumulate wagers, record sales, calculate payoffs, and display wagering data on a display device that is located at a pari- mutuel facility." § 550.002(36), Fla. Stat. The Department was prompted to begin the rulemaking process for the Proposed Rules by two major cases involving fraud, one Florida case and one national case. The Florida case involved two totalisator employees named Dubinsky and Thompson, who allegedly accessed outs ticket information in the totalisator's central computer system, counterfeited outs tickets based on the information, and cashed the tickets at self-service machines at two pari-mutuel wagering facilities. The fraudulent conduct involved approximately $13,000. In the Florida case the fraudulent tickets were cashed several months after the tickets were said to have been issued. The fraud came to light when the ticketholder who held the true ticket attempted to cash the ticket, but could not because the fraudulent ticket had been cashed. The national case also involved a totalisator employee who cashed fraudulent outs tickets. In the national case, the fraudulent tickets were cashed less than 30 days after the date the tickets were purportedly issued. The purpose of the Proposed Rules is to deter the cashing of fraudulent tickets. The Department received comments from AmTote International, a totalisator company, at the rule workshop held during the rulemaking process and received written comments submitted by AmTote International after the workshop, indicating that the majority of tickets are cashed within six to nine days after the date of issuance. The older a ticket gets the less likely it becomes that the ticket will be cashed, and the less likely that it becomes that the cashing of a fraudulent ticket would be revealed by the true owner attempting to cash the ticket. Staff of the Department felt that by requiring that outs tickets older than 30 days be cashed by a live person, a thief would be deterred because he would be dealing with a person rather than a machine. The only thing that the self- service machine requires to redeem a ticket is a bar code, so it would be possible to submit a ticket containing nothing but the bar code and receive a voucher which could be submitted to a teller for money.4 If the fraudulent ticket looks different in anyway from a valid ticket, a teller may be able to spot the difference and question the transaction. Calder argues that the way to deter the fraud which has occurred is to stop totalisator employees from being able to print fraudulent tickets. However, the Department is also concerned about computer hackers potentially getting into the computer system which contains the outs tickets numbers and copying the bar code which could be submitted to a self-service machine. By regulating the method of cashing outs tickets, the Department is attempting to deter fraud by totalisator employees and others who may be able to access outs tickets information which could be used in producing counterfeit tickets. During the rule making process, the Department held a workshop, received written comments from the public, and held a hearing to receive comments from the public after the Proposed Rules were first noticed. The Department considered the comments it received and modified the Proposed Rules as noticed in the Notice of Change published on August 6, 2004, to accommodate some of the comments. Calder did not submit a good faith, written proposal for a lower cost regulatory alternative within 21 days after the notice of the Proposed Rules was published in the Florida Administrative Weekly on May 21, 2004, or after the Notice of Change was published.
The Issue Whether Petitioner, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, is authorized to charge and collect interest from Respondent, Florida Gaming Centers, Inc., on the unpaid value of the outsbook for the 1995-1996 meet from August 29, 1997, the date payment of the value of the outsbook was due, to September 8, 1998, the date payment was received by Petitioner.
Findings Of Fact At all times relevant hereto, the Respondent held a permit to conduct jai alai pari-mutuel wagering, under License No. 2909-D Amended, issued by the Department. Between July 1, 1995, and June 30, 1996, inclusive, Respondent held jai alai games for the purpose of conducting pari-mutuel wagering on those games. Respondent's meet for the relevant time period ended on June 30, 1996. One year and sixty days after the end of the State of Florida's (State) fiscal year of June 30, 1996, any "out" tickets that remained uncashed escheated to the State pursuant to Section 550.1645(2), Florida Statutes. Once these tickets or the value thereof escheated to the State, Respondent was required to pay the value of such tickets, as reflected on its outsbook, to the Department no later than August 29, 1997. Pursuant to the outsbook prepared by Respondent, the value of the outs for the 1995-1996 meet was $108,221.20. Nonetheless, Respondent failed to submit to the Department the value of the balance of the outsbook within the prescribed time frame and instead held these funds. On June 2, 1998, the Department served an Administrative Complaint on Respondent, alleging that Respondent had failed to timely submit the value of the outsbook to Petitioner. By letter dated September 4, 1998, Respondent submitted to the Department a check for $109,128.60 as payment for the unpaid value of Respondent's outsbook for the 1995-1996 meet. The Department received Respondent's payment on September 8, 1998. Of the total amount Respondent paid over to the Department, $108,221.20 was credited against the unpaid value of the outsbook for the 1995-1996 meet, resulting in full payment of the outstanding outsbook value. The remaining $907.40 paid by Respondent to Petitioner was an overpayment. Petitioner alleges that Respondent is responsible for interest accrued on the unpaid value of the outsbook for the period of time that amount remained unpaid. According to the Department, the interest owed by Respondent as a result of its failure to timely remit the value of the outsbook, "shall be determined at a rate per annum . . . equal to the State's average investment rate for the preceding month to the month for which interest is being calculated." The average interest rate earned on the investment of State funds as determined by the State Treasurer and/or Comptroller" for the time period of August 1997 through August 1998, was 6.73 percent. The Department determined that the interest "shall accrue on the unpaid aggregate principal amount due the State for the month(s) from the respective due date." Based on its calculations and after deducting Respondent's overpayment of $907.40, the Department asserts that Respondent owes the Department approximately $6,573.85 in accrued interest. Respondent disputes that the Department has authority to collect interest on the unpaid amount of the outsbook and alleges the powers of the Department under Section 550.0251, Florida Statutes, do not include such authority.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that (1) an administrative fine of $1,000.00 be imposed against the Respondent for the violation Section 550.1645, Florida Statutes; and, (2) Respondent shall receive a credit of $907.40 toward payment of the administrative fine. RECOMMENDED this 28th day of January, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 28th day of January, 1999. COPIES FURNISHED: Deborah R. Miller, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William P. Cagney, III, Esquire 3400 Financial Center 200 South Biscayne Boulevard Miami, Florida 33131 Eric H. Miller, Esquire Chief Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
