The Issue Whether Respondent's intended decision to award a vending services contract to Compass Group USA, Inc., d/b/a Canteen Vending Services, is clearly erroneous, contrary to competition, arbitrary, or capricious. Also at issue is whether Respondent's intended decision is void or must be set aside due to alleged violations of Florida's Sunshine Law during the procurement process.
Findings Of Fact Based on the evidence presented at the final hearing and the record of this proceeding, the following material Findings of Fact are made: Background MDC is a political subdivision of the State of Florida, enrolling more than 165,000 college students. MDC operates eight campuses across Miami-Dade County. In June 2015, MDC issued an ITN to solicit competitive proposals for a five-year vending services contract at MDC, with an option to renew the contact for an additional five years. Gilly is the incumbent and current provider of vending services and has been the vending provider at MDC for approximately ten years. The ITN was the second ITN issued by MDC for vending services since 2014. In October 2014, MDC issued two parallel ITNs--ITN 2014-21-14A to solicit proposals for vending services ("2014 Vending ITN") and ITN 2014-21-14B to solicit proposals for dining services ("2014 Dining ITN"). Under the 2014 Dining ITN, Canteen was awarded a dining contract for three of MDC's eight campuses and is the current dining services provider on those campuses. After multiple protests of its intended award of the vending contract to Canteen, including one by Gilly, MDC elected to not award a contract under the 2014 Vending ITN and instead rejected all bids received in order to re-bid the ITN. Meanwhile, Canteen and MDC entered into a dining services contract. That contract relates to dining services Canteen provides and does not offer any incentives, financial or otherwise, to MDC if it were to select Canteen as the vending provider in any future vending ITN. In Canteen's BAFO, under the 2014 Dining ITN, Canteen offered to increase its capital investment if Canteen was also awarded the vending contract under the 2014 Vending ITN. MDC rejected this offer as MDC rejected all bids under the 2014 Vending ITN. This offer in Canteen's 2014 Dining ITN BAFO was not included in the parties' final dining contract, and, to the extent the final contract and Canteen's 2014 Dining ITN BAFO conflict, the final contract states that the contract shall prevail. MDC's second vending ITN in June 2015 required vendors to submit proposals to provide vending services across MDC's eight campuses. The deadline to submit proposals to the ITN was August 25, 2015. According to the ITN: [t]he ITN process is a flexible procurement process that is used when highly specialized services are required. Negotiations offer an opportunity for selected finalist respondent(s) to discuss their responses with a multi-College evaluation committee and present a "best and final offer" that may lead to a negotiated agreement. The goal of this comprehensive process is for identification of the optimal outcome or the solution that best meets the needs of [MDC]. To evaluate and rank competitive proposals, MDC formed a five-person evaluation committee (the "Evaluation Committee") consisting of the following members: Diana Carrasco, accounts payable and interim ERP budget manager; Sheldon Edwards, minority and small business enterprise manager; Robert Parrando, campus chief information officer, North Campus; Yaremis Ponce Fullana, interim senior director-administrator, Wolfson Campus; Christopher Starling, assistant vice provost for Business Services; and Tina Wood, administrative assistant III, Kendall Campus. Roman Martinez, director of Purchasing, was a non-voting facilitator for the committee. Mr. Starling was selected to serve on the Evaluation Committee because MDC's Business Affairs Department, of which Mr. Starling is vice provost, oversees vending services. Mr. Starling had no supervisory responsibility over any Evaluation Committee member. The ITN required vendors "to respond to all [MDC] requirements as listed in the proposal specifications; however, such requirements are not intended to limit the scope or creativity of the [vendor's] proposal." The ITN encouraged vendors "to include facility and equipment plans, services, revenue enhancing programs and other benefits not included in the proposal specifications in their proposals." The evaluation process, as outlined in the ITN, provided that the Evaluation Committee would first review and rank all proposals received and establish a short list of vendors to proceed to negotiations. Second, the Evaluation Committee would hold negotiation meetings with each shortlisted vendor. Third, each vendor would provide MDC with a BAFO, and then the Evaluation Committee would hold a final evaluation meeting to evaluate and rank the vendors based on their proposals, negotiations, and BAFOs before recommending a winning vendor to MDC. Section 5.8 of the ITN addresses the selection criteria the Evaluation Committee was to use in evaluating proposals. The criteria included, but were not limited to, the following four categories, each with several subcategories: Company Experience and Qualifications (30 points); Merchandising (20 points); Total Economic Value (20 points); and Technology (30 points) ("Selection Criteria"). Section 5.8 of the ITN provides instructions for how to score proposals under the ITN and states, in pertinent part: In evaluating the proposal responses to this ITN, [MDC] will consider a number of factors. These factors include, but may not be limited to, the criteria listed. . . . Under each criteria there are subcategories that may be utilized in assisting an Evaluation Committee member in evaluating the criteria. This in no way limits the Evaluation Committee member's ability to subjectively determine the ranking of the subcategory information that may be used to evaluate each criteria; it merely serves as a guide. The ITN did not prohibit the Evaluation Committee from scoring the proposals by "consensus," the method that the Evaluation Committee selected here.1/ The ITN does not mandate that the committee use individual scoring, an alternative to consensus scoring.2/ Mr. Martinez, who had been involved in purchasing at MDC since 2007, prepared both individual and consensus scoring sheets for the Evaluation Committee, which is his "customary practice." Notably, MDC has used consensus scoring for as long as Mr. Martinez has been an MDC employee, and consensus scoring is a common method used by other agencies. Section 1.5 of the ITN references MDC's Small Local Business Enterprise Initiative ("SLBE") and states, in pertinent part: This solicitation reflects refinement and evolution of our ongoing strategic commitment to economic revitalization of our community through partnerships which foster growth and development of small and local businesses. These vendors provide goods, services, employment and careers for [MDC's] graduates. Under the SLBE, MDC had "the sole discretion" to award incentives to qualified businesses bidding on certain types of contracts with MDC, including architecture, engineering, construction, and goods and services. The SLBE primarily focuses on MDC's ability to set mandatory SLBE subcontracting goals for architecture, engineering, and construction contracts; award "preference points" for using SLBE subcontractors; and set aside certain contracts exclusively for SLBE firms. Because the ITN solicited a "revenue-generating" contract for MDC, the ITN did not fit the purposes of the SLBE, which is intended for contracts in which MDC is paying for services, not receiving services combined with revenue. Also there was no material evidence submitted to conclude that Gilly would have qualified as a small or local business under the SLBE and or would qualify as a minority business under MDC's Minority Business Enterprise policy. Section 5.9 of the ITN, titled "Final Decision," states that "[MDC] shall be the sole judge of its own best interests, the proposals, and approval of the resulting contract." The Evaluation Committee's Meetings The August 13, 2015, Meeting On August 13, 2015, before any proposals had been received, Mr. Martinez conducted a meeting with the Evaluation Committee (the "August Meeting"). The meeting was not advertised on MDC's procurement website and was not open to the public. Mr. Martinez had conducted similar meetings with other competitive procurements at MDC, including the 2014 Vending ITN and a procurement matter involving custodial services. The August Meeting lasted approximately 41 minutes. A variety of topics were discussed and information was provided to the members, including the requirements of the Cone of Silence and Florida Sunshine Law; the ITN process, including shortlisting of vendors, public meetings, rankings, and BAFOs; the different scoring methodologies available to the Evaluation Committee (i.e., individual versus consensus scoring); the selection criteria; how Evaluation Committee members' questions will be answered after the initial evaluations; the expectations of Evaluation Committee members, being prepared for all meetings; and the scheduling of future meetings. Also discussed during the August Meeting were strategies to identify and achieve the best total value for MDC and the optimal outcome for MDC's students. Notably, the ITN represented a "much different approach" to vending as compared to MDC's current contract. For example, under the ITN, MDC would receive revenue from its vending provider in the form of a commission, i.e., a percentage of total vending sales, as opposed to the fixed fee it received under its current vending contract. Therefore, the relationship between MDC and the vendor selected under the ITN would be "more of a partnership." Also, MDC's focus for the ITN was less on financials and more on service to students, which the Selection Criteria and discussion at the August Meeting reflect. For example, the Evaluation Committee strategized and discussed MDC's desire to limit price increases, improve vending technology, and ensure timely machine service. During the August Meeting, Mr. Starling expressed concerns about balancing MDC's interest in receiving a commission with its interest in limiting vending price increases for the benefit of students. He did not want MDC to "increase the pricing every six months," even though that would provide more commission because MDC wants vending to "be a good service for [its] students" and "[does not] necessarily want to keep gouging them." At the final hearing, Mr. Starling testified that he was trying to explain to the Evaluation Committee that, while MDC has a financial interest in vending, MDC did not want to create a relationship with a vendor whereby MDC continually increases prices every few months to increase revenue to MDC. As to his comment about "gouging" students, Mr. Starling testified that he had "no intent whatsoever . . . to imply that we were currently gouging students, because in reality that wouldn't be a shot at Gilly, it would be a shot at [MDC]," which approves all price increases. No discussion ensued, nor were any decisions made, regarding who should be chosen as the successful bidder during the August Meeting.3/ Rather, the discussion during the meeting focused on MDC's strategy for the procurement and, in particular, on how it would achieve its goal of obtaining a commission-based vending contract while at the same time ensuring that vending prices remained reasonable for its students. There were also discussions and comments made regarding the voting approach to take to evaluate the submissions, once made (e.g., individual v. consensus voting). During the first part of the August Meeting, Mr. Martinez informed the Evaluation Committee that the ITN was a re-bid of the 2014 Vending ITN and that Gilly protested the recommended award under the 2014 Vending ITN. Gilly was mentioned by name only twice, within the first two minutes of the meeting, and only by Mr. Martinez--once when he stated that Gilly was one of three shortlisted vendors in the 2014 Vending ITN and once when he said Gilly protested the 2014 Vending ITN. Mr. Martinez mentioned Gilly's prior protest to provide "factual information" concerning "the history of the previous procurements" to the Evaluation Committee. No other Evaluation Committee member mentioned Gilly by name nor were any questions asked concerning the details of Gilly's prior protest. At other times during the meeting, Mr. Starling said "firms" had protested the 2014 Vending ITN. Based on the testimony offered during the hearing, the mention of Gilly's name and prior protest at the August Meeting did not influence the decision-making of the Evaluation Committee during the course of the ITN and did not create a bias against, or otherwise disadvantage, Gilly. Ms. Ponce, for example, did not give any significance to the statement that Gilly protested previously. Nor did she recall an Evaluation Committee member using the word "gouging" during the August Meeting. Nothing she learned during the August Meeting gave her "an impression one way or another about Gilly." Mr. Edwards was already aware that Gilly had protested the 2014 Vending ITN, but that fact did not influence his decision-making on the ITN. Mr. Parrando was unaware that Gilly protested previously because he arrived approximately ten minutes late to the August Meeting. Overall, the discussion at the August Meeting focused on addressing "housekeeping" issues, potential issues related to the procurement process, and ensuring that the Evaluation Committee members understood the ITN process and their role. The goal of the meeting was to strategize and ensure that MDC would select the vendor that best meets the needs of MDC and its students, as well as the best approach to take to evaluate the submissions. The August 25, 2015, Initial Evaluation Meeting As of the August 25, 2015, due date for proposals, MDC had received proposals from eight companies: Gilly, Canteen, Bettoli, All Stop Vending, Coca Cola, Double R Vending, Right Choice Vending, and Royal Vending USA. On September 30, 2015, the Evaluation Committee held a public "Initial Evaluation Meeting," at which it evaluated and scored each proposal. Mr. Martinez allotted four hours for the meeting to make sure the Evaluation Committee had sufficient time to discuss every criterion for every vendor and score them accordingly. The meeting actually lasted five hours and ten minutes. At the beginning of the meeting, the Evaluation Committee discussed how to approach scoring of the proposals, including whether to use consensus or individual scoring. At one point, Mr. Edwards expressed his preference for individual scoring, while several others said they liked consensus. Mr. Martinez said they did not have to decide which method to use before discussing the proposals. He suggested they discuss the eight proposals and then decide whether to use individual or consensus scoring. The Evaluation Committee agreed and decided to discuss each proposal and criterion and then decide which scoring method to use. The Evaluation Committee then discussed the eight proposals for nearly four hours, which included discussing proposals from Bettoli, Canteen, and Gilly with nearly an equal amount of time devoted to each. The Evaluation Committee discussed each of the four categories in the Selection Criteria for the first proposal and then "start[ed] the process again" with the second proposal and continued this process until it had discussed each proposal. The topics that the Evaluation Committee discussed included a vendor's employees and resources to manage MDC's contract, refunds, price increases, the "Minimum Annual Guarantee" ("MAG"), and responsiveness to machine restocking and maintenance. Each Evaluation Committee member participated in the discussion during the Initial Evaluation Meeting, emphasizing matters that were important to that member. For example, Ms. Ponce testified that refunds and timely machine repair were important to her, namely because those items "affected direct services to students." She also testified that pricing was important to everyone. Following the four-hour discussion of the proposals received, the Evaluation Committee returned to the topic of scoring methodology. Ms. Ponce, Ms. Carrasco, Mr. Parrando, and Mr. Edwards preferred consensus scoring. Mr. Edwards, who preferred individual scoring at the beginning of the meeting, said, "After going through this, I'm in agreement that the consensus does work, because we all discussed it, and we all ha[ve] our different points of view. . . . But I'll agree. I think that's pretty good." Mr. Starling made a formal motion to use consensus scoring, and all members voted in agreement. The Evaluation Committee then spent well over an hour scoring the eight proposals. The Evaluation Committee ultimately scored Gilly, Bettoli, and Canteen as the top three proposals and voted to shortlist these companies to proceed to negotiations. Bettoli and Gilly received equal scores on all four Selection Criteria categories with Canteen receiving a lower score on Total Economic Value. Multiple Negotiation Meetings and BAFO Requests On October 16, 2015, the Evaluation Committee held separate, non-public negotiation meetings with each of the three shortlisted companies as permitted by law. See § 286.0113(2)(b)1., Fla. Stat. For the negotiation meetings, MDC allotted the first ten minutes for a vendor to make any presentation or statements it wished and set aside the remainder for questions and answers between the Evaluation Committee and the vendor. Canteen's negotiation meeting lasted approximately one hour and 15 minutes. The Evaluation Committee asked about several aspects of Canteen's proposal, including the percentage of machines that would be branded versus non-branded, Canteen's ability to track and report sales and machine malfunctions, machine aesthetics, responsiveness to machine restocking and servicing, vending promotions, and Canteen's MAG offer. The Evaluation Committee also asked about Canteen's proposal to improve vending refunds. Section 7.6 of the ITN states, "Please explain how the company will handle refunds. [MDC] is interested in real-time, electronic refund alternatives that will eliminate or minimize the use of money." On the three of eight MDC campuses where Canteen has dining operations, Canteen proposed to have its dining staff provide vending refunds "in real time on the spot." Canteen proposed that those individuals on the five campuses without Canteen dining use the "Canteen Connect App" or a "refund bank" to receive refunds. Several Evaluation Committee members expressed doubt that this was a viable solution because students do not like waiting for a refund. For example, Mr. Starling stated that students "don't like going to the Bursar's Office" to wait for a refund and did not "know if [students are] going to really like going to the cafeteria." Ms. Wood stated that going to the cafeteria for refunds presents the same problem with students going to the Bursar's Office: they do not have time to wait for a refund. Gilly's negotiation meeting lasted approximately one hour and 18 minutes. The Evaluation Committee discussed many of the same topics as they did with Canteen. They asked Gilly about branded versus non-branded machines; whether all machines would be brand new; Gilly's ability to track and report sales, restocking, and machine malfunctions; machine aesthetics; vending promotions; and Gilly's MAG offer. The Evaluation Committee also asked Gilly if it was proposing any cashless refund process. Gilly recommended staying with the current refund process, which required students to visit the Bursar's Office to get refund vouchers or scan a "QR code" with their mobile phones to submit a refund request to Gilly, but would provide a more instant electronic system if MDC preferred. Ms. Ponce testified that she was "very disappointed" with Gilly's presentation at its negotiation meeting because Gilly "never really addressed" all areas of concern raised by the Evaluation Committee. In particular, Ms. Ponce felt that Gilly's responses to questions about refund solutions were "very dismissive." Gilly stated that its current refund system on the MDC campuses works. In Ms. Ponce's view, Gilly did not "recognize that there's always room for improvement." Ms. Carrasco testified that she did not like Gilly's presentation because it focused more on profits made in past years rather than service to MDC. She did not think that past profits were necessarily relevant to any of the criteria. She was left with the impression that Gilly wanted the vending contract at "whatever cost." After these negotiation meetings, MDC requested each company submit its BAFO by October 26, 2015. In the BAFO request, MDC asked each company to answer a set of questions, which were the same for each company. One question asked vendors to provide a MAG, which represents the minimum dollar amount the vendor guarantees to MDC in commission each year, regardless of actual sales volume. Section XIII of the ITN listed historical annual vending sales at MDC from 2011 to 2014. Calendar Year Vending Sales 2014 $1,712,029 2013 $1,706,477 2012 $1,598,337 2011 $1,680,290 As indicated, from 2011 to 2014, vending sales at MDC never exceeded approximately $1.7 million per year. In its BAFO, Canteen offered a MAG of $700,000 per year and offered to pay the MAG for the first year of the contract in advance if MDC preferred. Gilly offered a MAG of $727,000 per year. Gilly also offered a "tiered" or "escalating" MAG, whereby the MAG would increase if vending sales reached a certain level. If annual sales reached $2.5 million, the MAG would be $850,000. If sales reached $925,000, the MAG would be $925,000. If sales reached $3 million, the MAG would be $1 million. The October 29, 2015, Final Evaluation Meeting and Recommended Award On October 29, 2015, the Evaluation Committee held a public "Final Evaluation Meeting" at which it thoroughly discussed, evaluated, scored, and ranked the proposals, negotiations, and BAFOs from the three companies. The Final Evaluation Meeting lasted over three hours. At the Final Evaluation Meeting, the Evaluation Committee again discussed whether to use individual or consensus scoring for the final evaluation. The Evaluation Committee unanimously agreed to use consensus scoring. The Evaluation Committee next discussed and evaluated each proposal under each of the four categories in the Selection Criteria. This discussion period lasted approximately one and one-half hours. After a full discussion, the Evaluation Committee returned to the first category discussed and began assigning scores to the three companies. This scoring process lasted one and one-half hours. The Evaluation Committee specifically discussed the first Selection Criteria category, Company Experience and Qualifications. Evaluation Committee members commented positively on the decades of experience of all three companies and discussed which company had the resources to best handle MDC's vending demands. Mr. Edwards and Mr. Starling stated that all three companies were capable of handling the vending contract. Mr. Starling gave Canteen "an edge" because Canteen has more resources than the other companies and choosing Canteen could show the community that MDC is doing its best to improve vending operations. The Evaluation Committee also discussed the companies' responsiveness to machine malfunctions and restocking and the ability to track sales of products by vending location. Several committee members commented positively about Gilly. For example, Mr. Edwards stated, "[Y]ou can't beat the knowledge . . . that [Gilly] come[s] with, whereas everybody else is a little bit behind them on that alone." Another Evaluation Committee member stated, "[Gilly is] here. So we know they have experience. We know they're qualified." Ms. Ponce testified that she believed that it would be easier to continue the vending contract with the incumbent and felt "it would have been a smoother process to continue that relationship," rather than bring in a new company. The Evaluation Committee questioned whether Gilly should have already offered MDC certain technology or reporting upgrades, because the Evaluation Committee believed these upgrades had become standard practice in the vending industry. They questioned why, if Gilly had provided such upgrades to its other clients and touted these upgrades to MDC as part of its proposal and negotiation presentation, Gilly had not previously offered or provided these upgrades to MDC. Although there was a clear understanding that Gilly was not contractually obligated to provide certain upgrades, such as sales reporting, Gilly could have provided these services as a "show of good will and customer service," especially because these reporting systems had become standard practice in the vending industry. Two of the Evaluation Committee members who questioned whether Gilly should have already offered certain upgrades to MDC also stated that they were "impressed" with Gilly's presentation. Ultimately, the Evaluation Committee discussed and reasoned that Canteen's larger size and experience with large contracts gave Canteen an "edge," concluding that Canteen had more resources to better handle MDC's vending demands. For example, one of Canteen's largest accounts is with Disney World, which the Evaluation Committee discussed as comparable to MDC in terms of "[c]onstant foot traffic." Meanwhile, the Evaluation Committee discussed concerns about current empty vending machines and timely machine service with Gilly. The Evaluation Committee spent roughly one-half hour scoring the proposals on Company Experience and Qualifications and assigned the following scores: Canteen 4.5; Bettoli 4.0; and Gilly 3.5. The Evaluation Committee discussed the second Selection Criteria category, Merchandising. The Evaluation Committee continued to discuss the companies' responsiveness to restocking and machine service and also discussed machine graphics, refund solutions, the number of employees and drivers, and machine installation plans. Evaluation Committee members commented positively on Bettoli's refund proposal and Canteen's implementation plan. Ms. Ponce stated that only Bettoli impressed her by offering a refund solution that did not require students "to go get in line somewhere." She also noted that Gilly offered to provide an electronic, cashless system if MDC wanted. In discussing Canteen's proposal to provide vending refunds through its dining operations, Ms. Ponce commented that this proposal would not help her campus because Canteen does not provide dining there. Mr. Starling was not concerned with a cashless refund system regardless of vendor. Canteen's suggestion that it could promote vending services through its dining operations did not give it a competitive advantage because Canteen could have promoted vending sales through its dining operations for any other vending provider as well. Gilly had suggested incentives to MDC that only it, as the incumbent, was in a position to offer. At Gilly's negotiation meeting, Gilly offered--instead of providing MDC with all new vending machines, which the Evaluation Committee requested--to replace half of its current vending machines with brand new machines and pay MDC $1 million, leaving in place and continuing to use machines less than two years old. As the incumbent, Gilly was the only proposer in a position to offer to pay cash and leave existing machines in place, rather than provide all new machines. Ultimately, the Evaluation Committee placed significant emphasis on Canteen's position on machine repairs and restocking, in light of Canteen's promise to add additional employees to manage the MDC contract. The Evaluation Committee also discussed that they were impressed that Canteen representatives walked MDC's campuses and created a plan for restocking machines and, as opposed to relying on present machine location, prepared a new map of where all machines would be placed. The Evaluation Committee expressed concern that Gilly did not recognize the need for increasing the number of employees to restock and repair vending machines and did not recognize that the refund process could be improved. The Evaluation Committee spent time scoring the proposals on Merchandising and assigned the following scores: Canteen 4.5; Bettoli 4.0; and Gilly 3.5. The Evaluation Committee discussed the third Selection Criteria category, Technology. The Evaluation Committee noted that they had already discussed some aspects of Technology, such as machine reporting capabilities, cashless refund solutions, and payment options. The Evaluation Committee noted that each company could provide the new technology and features MDC wanted. The Evaluation Committee scored this factor and assigned each company a score of 4.5. The Evaluation Committee discussed the fourth Selection Criteria category, Total Economic Value. The discussion focused primarily on price increases and the commission and MAG offered by each company. Evaluation Committee members commented positively on the MAG offered by each company and noted that all three offers were "very equal." The Evaluation Committee noted that Canteen may be less sensitive to price increases. The Evaluation Committee thoroughly considered Gilly's tiered MAG proposal. The Evaluation Committee discussed whether it was realistic to believe annual vending sales would reach at least $2.5 million, the minimum amount necessary to receive a MAG above $727,000. Mr. Starling stated that, given MDC's current annual sales of $1.6 million to $1.7 million, it would be "a leap" to reach $2.5 million. Therefore, he was not sure "how much weight" the Evaluation Committee should put into Gilly's escalating MAG. Later, Mr. Starling stated: [E]ven though we're saying we may not see the reality of us getting to sales above $2.5 million, there w[ere] factors presented to us by Gilly with really escalating MAGs if it gets to there. The other side of that is I don't know how . . . we get to there. That's a million dollars more than we're doing now. Ms. Carrasco also questioned whether $2.5 million in sales was realistic. Ms. Ponce stated that the Evaluation Committee should not "fall in love" with Gilly's escalating MAG figures "because we are talking almost a million increase [in annual sales]." Mr. Parrando commented that they may be "hesitant to think" sales would increase by $1 million. Indeed, even Gilly's president stated during Gilly's Negotiation Meeting that she thought exceeding $2.5 million in sales was "unrealistic." The Evaluation Committee had an extensive discussion on the MAGs offered by the three companies, including a discussion of Gilly's escalating MAG. The Evaluation Committee also scored Total Economic Value and assigned each company a score of 4.5. During the Final Evaluation Meeting, the Evaluation Committee did not alter its scoring of Canteen's proposal based on the expectation of further negotiation of BAFO terms. To the extent that Evaluation Committee members referenced further negotiations with Canteen following the Final Evaluation Meeting, those references related to discussion of specific details of implementation of the vending contract--such as the placement of vending machine enclosures--and not elements of the BAFO itself. Indeed, during the Final Evaluation Meeting, Mr. Starling made clear that there would be no changes to any BAFO terms. Finally, in the context of the three-hour Final Evaluation Meeting, the two references to further negotiations were stray comments by individual Evaluation Committee members and did not form the basis of or lead to any discussion by the entire Evaluation Committee and were not determinative in scoring any particular category or selecting the winning vendor. At the end of the meeting, the Evaluation Committee assigned the following score totals to the three companies, scaled per the Selection Criteria instructions: Canteen 4.50; Bettoli 4.25; and Gilly 4.00. The Evaluation Committee voted to rank the companies in that order, and each Evaluation Committee member signed the scoring sheet. On November 2, 2015, MDC announced the Evaluation Committee's recommendation to award the contract for vending services to Canteen. Gilly timely filed a notice of protest on November 5, 2015. Gilly filed a formal written protest on November 16, 2015, raising a number of arguments related to the August Meeting, the Evaluation Committee's scoring methodology, and consideration of various aspects of proposals from Gilly and Canteen.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the petition of Gilly Vending, Inc., and affirming the Notice of Intent to Award to Compass Group USA, Inc., d/b/a Canteen Vending Services. DONE AND ENTERED this 6th day of April, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 6th day of April, 2016.
Findings Of Fact Petitioner obtained bid specifications and submitted the lowest bid on Department of Transportation project No. 12075-3408 to construct rest station facilities on the I-75 in Lee County. The specifications established a goal of 15 percent of the subcontracts be let to Disadvantaged Business Enterprises (Exhibit 1). If the successful bidder failed to meet this goal, he must show a good faith effort to meet the goal was made else his bid would be deemed non-responsive and rejected. Rules 14-78.01 through 14-78.09, Florida Administrative Code, which became effective in June, 1984, were the controlling regulations at the time the bids for the project were solicited. These rules eliminate the former classification of Minority Business Enterprises comprised of minorities and women and replaces it with a Disadvantaged Business Enterprise (DBE) and a Women's Business Enterprise (WBE) classifications. In the instant contract a goal was established only for DBE. Actions to be taken by the bidder to meet these goals were contained in the bid package, as were the criteria by which the bidder's good faith efforts to meets these goals would be evaluated by DOT. The bid specifications required the contractor, if he failed to meet the DBE goal established, to submit all documentation to support his claim that a good faith effort had been made. With his bid Petitioner submitted only a list of 28 subcontractors from whom it had solicited bids, of which 6 were WBEs. That list showed the date request for bid was sent by certified mail by Petitioner, the date return receipt was received, whether a bid was received, and date back-up phone call was made. That document showed three listed companies submitted bids. DBE/WBE utilization form No. 1 (Exhibit 1) submitted by Petitioner showed no bids were received. Petitioner explained this discrepancy at the hearing, that he had rejected the three bids received because they were more than one percent higher than the bid submitted by another subcontractor. Documentation of this fact did not accompany Petitioner's bid. Upon receipt of Petitioner's bid showing no DBE subcontractor, the bid was submitted to the Good Faith Effort Committee at DOT to evaluate the information contained in the bid to determine if Petitioner had submitted documentation to support his good faith efforts to meet the DBE goal. That committee found Petitioner had not provided adequate documentation of its efforts and recommended the bid be declared non-responsive (Exhibit 8). Prior to Rules 14-78.01 through 14-78.09, Florida Administrative Code, becoming effective in June 1984, the rules allowed the contractor an additional ten days after bid opening to submit evidence that good faith efforts had been made to meet DBE goals. After June 1984 all documentation of good faith efforts are required to be submitted with the bid where DBE goals are not met. In the event the DBE goal is not met by the contractor in his bid submission, the bid specifications (Exhibit 1) require the contractor to submit sufficient information to demonstrate he made good faith efforts to meet the goal. Those bid specifications further list nine items the Department will consider in evaluating the contractor's good faith efforts. These include submitting written notice by certified mail to all certified DBEs which perform the type work which the contractor intends to subcontract; whether the contractor selected economically feasible portions of the work to be done by DBEs; whether the contractor provided assistance to DBEs in reviewing plans and specifications; whether DBE goals were met by other bidders; whether contractor submits all quotations received from DBEs and, for those not accepted, an explanation of why not; whether contractor assisted DBEs in obtaining required bonding, lines of credit or insurance; whether contractor elected to subcontract types of work meeting capabilities of DBEs; whether contractor's efforts were merely proforma; and whether contractor has, on other contracts within the past six months, utilized DBEs. A list of certified DBEs is contained in Exhibit 7, which was available to Petitioner. Therein are listed many DBEs other than those on the list submitted by Petitioner with his bid. At the hearing return receipts for certified mail soliciting bids from DBEs by Petitioner were admitted into evidence, over objection, as Exhibit 3. Since the rules require all documentation of good faith efforts be submitted with the bid, that exhibit is not relevant. However, that exhibit clearly shows all certified DBEs were not solicited by Petitioner. Of those nine items Petitioner was notified would be considered by the Department in evaluating his good faith efforts to obtain the DBE goal, the evidence submitted with Petitioner's bid showed compliance with none. This gas the first bid submitted by Petitioner to Respondent. Other bidders met the DBE goals and the bid was awarded to the second low bidder.
Findings Of Fact Petitioner is A graduate of the University of the East in Manila, Philippines. Petitioner is the holder of the state of Illinois C.P.A. Certificate No. 18012. On July 11, 1979, Petitioner filed an application to obtain a reciprocal certified public accountant certificate in Florida (licensure by endorsement) based upon his certificate issued by the State of Illinois. On December 14, 1979, the Board denied Petitioner's application for a reciprocal certificate for the reason that Petitioner had not graduated from an accredited four-year college or university and, accordingly, failed to satisfy the requirements set forth in Section 7(3)(b), Chapter 79-202, Laws of Florida, now codified as Section 473.308(3)(b), Florida Statutes (1979) The University of the East in Manila, Philippines, is not recognized by the Board as an accredited university in Florida and was not so recognized at the time that Petitioner received his certificate as a certified public accountant in the State of Illinois. The University of the East is not listed among the institutions of post secondary education by the Council on Postsecondary Accreditation, the official listing of accredited colleges and universities adopted by the Board to ensure the minimum competence of public accounting practitioners. Additionally, the University of the East in Manila, Philippines, has not been accredited by any of the regional accrediting agencies recognized by the Board. Douglas H. Thompson, Jr., the Respondent's Executive Director since 1968, is the Board's chief executive officer and, as such, carries out the Board's functions respecting applications for licensure. Mr. Thompson examined Petitioner's application pursuant to Petitioner's Illinois certificate to ascertain whether Petitioner's certificate was issued under criteria substantially equivalent to Florida's licensing criteria and determined that the criteria were not substantially equivalent. Petitioner's application was considered by the Board on two occasions and was rejected.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: Petitioner's application for a reciprocal certified public accountant certificate be denied. RECOMMENDED this 10th day of June, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Collins Building Room 101 Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1980. COPIES FURNISHED: Samuel Hankin, Esquire Commerce Building 226 South Main Street Gainesville, Florida 32602 Mr. Marianito Manalo Ilagan 9020 S.W. 56th Street Cooper City, Florida 33328 Ms. Nancy Kelley Wittenberg Secretary Department of Professional Regulation The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301
Findings Of Fact On September 21, 1987, petitioner, Terrell Oil Company (TOC), filed an application for renewal of its certification as a disadvantaged business enterprise (DBE) with respondent, Department of Transportation (DOT). TOC had been previously certified as a DBE for a two-year period commencing in January 1986. After reviewing the application, DOT advised TOC by letter dated January 20, 1988, that its application had been denied on the grounds the firm "(did) not appear to be performing a commercially useful function nor (was) it an independent business entity as required by D. O. T. Rule 14-78.05, Florida Administrative Code." 2/ The letter of denial precipitated this proceeding. Later correspondence from DOT on February 8, 1988, advised TOC that its existing certification would remain in effect until this proceeding was concluded. According to its original application dated September 21, 1987, TOC was established on February 5, 1986, and engaged in the business of "oil-gas- petroleum products." Its offices were then located at 1908 West Cass Street, Tampa, Florida. The application identified Grady F. Terrell, Jr., a black man, as being the sole stockholder in the firm, its president and chairman of the board. Other directors included Richard W. Gilliam, a white man, and Walter Scott, a black man. The application represented that Terrell served as president and treasurer of TOC while Gilliam held the positions of vice president and secretary. The application reflected also that Terrell and Gilliam shared the power in the areas of policy making, financial decisions, job estimating, bidding and supervising field operations and that Terrell alone had the power to dismiss employees and sign checks. Finally, the application represented that the corporation owned no equipment, it had earned $14,000 in calendar year 1986, Terrell had invested $6,000 of his own money in the firm, and it had two full-time and two cart-time employees. After receiving the original application, two DOT employees made an on- site investigation of the business and conducted an interview with Terrell on October 20, 1987. They found no sign on the building at 1908 West Cass Street indicating that TOC occupied the premises, but they were directed by the landlord to a small 8' x 10' rear corner office. During the interview, Terrell was asked for copies of TOC business contracts but had none. Also, he did not have any cancelled checks, insurance coverage or bonding at that time. Terrell stated he had no employees so no insurance was needed. He represented further that he was "self-employed" by TOC and devoted 100% of his time to that endeavor. When the parties reviewed the application item by item and found several discrepancies or incorrect responses, Terrell agreed to amend his application in the presence of the DOT representatives. As amended, the application reflected that Terrell, Gilliam and J. Anthony Belcher, a white man, were the current directors, the firm had one full-time (Terrell) and no part- time employees, Terrell, Gilliam and Belcher served as president, vice-president and treasurer, respectively, while William V. Gruman, a white man and attorney, served as secretary, and there were no written, oral or tacit agreements concerning the operation of the firm between any persons associated with the firm. Terrell denied that Belcher worked for Belcher Oil Company (BOC), a large oil concern, and described him as a retired individual serving as an independent consultant for TOC. As to Gilliam, Terrell described him as an independent contractor who worked on a 100% commission basis and solicited business for the firm. During the same interview, Terrell represented that the $6,000 investment in capital was actually a loan from a local bank and denied that TOC owned or leased any equipment. Terrell could offer no proof that the firm had earned $14,000 in 1986 and indicated the firm had no projects underway. He described his business as being a broker of gasoline, diesel fuel and motor oil and that other persons supplied and delivered the fuel. According to Terrell, business transactions were conducted in the following manner. He first determined the market price of fuel from BOC, his principal supplier, and based upon that price, submitted a bid on a job. If TOC was successful, Terrell made a telephone call to BOC requesting that the fuel be delivered to the buyer. Through BOC, Terrell was able to purchase fuel two percent below the "rack" rate. TOC then added a percentage of profit to its sales price. In actuality, TOC never had physical possession of the fuel and, accordingly, needed no equipment to engage in this activity. At the same inspection, the DOT personnel confirmed through reading the firm's bylaws that each of three directors had one full vote, regardless of the number of shares held. Thus, the two white directors could outvote Terrell on any TOC decision. Also, a quorum of the directors could convene a meeting and theoretically conduct business without Terrell's knowledge. On November 23, 1987, or a little over a month after the DOT visit was made, TOC adopted a corporate resolution authorizing any one of the three directors to execute binding contracts on behalf of TOC. Thus, either of the two white directors had the authority to enter into contracts without Terrell's approval. A copy of the resolution has been received in evidence as respondent's exhibit 12. Shortly after the above resolution was approved, Gilliam and Belcher were given the opportunity to each purchase 19% of TOC's stock while Gruman was allowed to purchase the remaining 2%. This meant the three white officers now owned 40% of the stock while Terrell owned the remaining 60%. On December 1, 1987, TOC and BOC entered into an agreement whereby TOC agreed to buy fuel and petroleum products from BOC for resale to customers, and in return, BOC extended TOC a $200,000 line of credit. The agreement has been received in evidence as respondent's exhibit 1. Under the agreement, TOC's invoices to customers had to be approved by BOC, and the customers were required to remit moneys due for fuel to a special bank account controlled by BOC. That firm then sent its invoices to the bank and was paid out of the proceeds. The remainder in the account was for the use of TOC. This agreement was negotiated on behalf of TOC by Belcher, whose family once owned BOC, and until 1987 served as a consultant to that oil company. Because of numerous concerns raised during the October 10 visit, DOT continued its investigation of TOC. Besides learning about the above resolution, stock sale and agreement, DOT obtained various corporate records of T0C, including tax returns, cancelled checks, records of fuel sales and applications for minority certification with other governmental entities. Through its investigation, DOT uncovered the fact that Terrell did not devote 100% of his time to TOC as he had earlier claimed but had been employed as a car salesman by Crown Pontiac in St. Petersburg, Florida, on a full-time basis since July 1987. Indeed, Terrell worked there more than fifty hours per week. Contrary to Terrell's representation, authority to sign TOC checks had been delegated to Gilliam who had done so on numerous occasions prior to and after the application was submitted. As to Terrell's contention that TOC owned no equipment, the firm's corporate income tax return indicated it purchased a small tank truck in 1986 and carried the same on its books. The claim that Terrell alone controlled the business was refuted by the firm's corporate records which reflected that the two white board members could effectively control all management decisions and run the business on a day-to-day basis. DOT learned also that, although TOC had five customer accounts in 1988, of which four came from the private sector, the fifth account was with Hillsborough County, a governmental entity, and comprised more than 99% of its total business. In addition to the DOT application, TOC has sought minority business status from the City of St. Petersburg, the City of Orlando, Hillsborough County, Broward County and the federal government. A review of these applications revealed a maze of conflicting information submitted to the respective agencies. For example, Terrell represented to Hillsborough County that one Noble Sissel (a black man) was TOC's vice-president, secretary, treasurer and board member when in fact Sissel never held any of those positions. Terrell represented to Hillsborough and Broward Counties that TOC had two full-time employees while the amended DOT application reflected that TOC had only one. Further, Terrell gave conflicting answers to the various agencies as to the equipment owned by TOC and the purported gross receipts of the firm. In order to perform a commercially useful function, a DBE must manage and perform at least 51% of its work. In other words, the firm cannot subcontract out more than 49% of its business. Also, there is a requirement that a DBE's principal customers be entities other than governmental agencies in order to perform a commercially useful function. Through testimony and admissions of its officers, TOC acknowledged that it was merely acting as a broker. In industry parlance, this means that TOC did all its work by telephone, obtained a seller and buyer and then obtained a common carrier to deliver the product. As such, TOC never took physical possession of the product on its own equipment since it owned none, and it was not responsible for the movement of the product from the terminal to the customer. Further, since TOC purchased virtually all of its fuel from BOC, and under an agreement customer checks went directly to that firm, TOC was, in essence, conducting a broker operation for BOC. Therefore, TOC was not performing a commercially useful function. At hearing, Gilliam was TOC's only witness, and he attempted to establish TOC's entitlement to certification. Besides pointing out that Terrell was a black man and the majority shareholder in the firm, Gilliam attempted to show that Terrell actually controlled and ran the business. Also, he attempted to demonstrate the commercially useful function of the firm by the fact that 80% (4 out of 5) of TOC's five accounts are nongovernmental customers. Although not reflected on the amended or original applications, Gilliam acknowledged that TOC owns one 1200 gallon truck capable of making fuel deliveries. Gilliam contended further that Terrell had made an initial contribution to the corporation of $120,000 of his own funds. However, no proof of this claim was submitted. Given the overwhelming contradictory evidence of record, and the numerous inconsistencies in the testimony of TOC representatives, Gilliam's testimony is not accepted as being credible.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered denying the application of Terrell Oil Company for certification as a Disadvantaged Business Enterprise. ENTERED this 9th day of November, 1988, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November 1988.
The Issue Whether the proposed decision of the Department of Health (Department) to award a contract to the Intervenor, Chauncey Group International and Experior Assessments, LLC (Chauncey Group), is contrary to governing statutes, rules, or policies of the Board of Health (Board), or the specifications of RFP-DOH00- 015 (RFP).
Findings Of Fact The Board of Nursing is a state board which regulates the practice of nursing in the state. The Department of Health is the state Department which, among other things, is charged with the provision of general health services to the citizens of the state. ASI is a corporation with headquarters in Bala Cynwyd, Pennsylvania. The Chauncey Group is located in Princeton, New Jersey. Both ASI and the Chauncey Group have experience in administering tests to determine whether applicants may be designated certified nursing assistants. The Board determined that it required the development and administration of its nursing assistant certification program competency examination in accordance with applicable federal and state guidelines for the development of valid, reliable, and legally defensible examinations. It further determined that this could best be accomplished by contracting with a private vendor. The Board designated Dr. Ruth Stiehl as its representative for the preparation of the RFP. The Board employed the services of the Department in the preparation and evaluation of the RFP. Jim Brewer, a purchasing analyst for the Department, was designated administrative lead in the preparation of the RFP. Eunice E. Filar, an employee of the Department, was the person who was in charge of assembling the RFP. Dr. David Paulson, the Department's Manager for Testing Services, was her supervisor. The RFP required written questions to be submitted before March 28, 2001, and set the mandatory pre-proposal conference for April 11, 2001. It provided that additional questions identified at the pre-proposal conference would be answered by email or fax until April 18, 2001. Proposals were due at 2:00 p.m. on May 9, 2001, according to Subsection 2.10 of the RFP, or 2:00 p.m. on May 10, 2001, according to Subsection 2.4 of the RFP, and Jim Brewer. The addendum of April 7, 2001, stated that they were due on May 10, 2001, at 2:00 p.m. That time and date, being the last, is the time and date which is operative. Proposals were to be evaluated beginning May 15, 2001. Evaluation training was on May 23, 2001, and was conducted by Juan Trujillo, a psychometrician with the Department. Evaluation training had originally been scheduled for May 16, 2001, but had to be cancelled because Mr. Trujillo was ill. The proposals were submitted in boxes which were opened by Jim Brewer on May 10, 2001. This was reflected by a document signed by Mr. Brewer and Diane Harper. The proposed services portion was reviewed first. The cost proposal was not opened until on or about May 24, 2001. Section 5 of the RFP provided instructions to prospective offerors. It included such information as to the composition of the title page, required a brief narrative indicating the responder's understanding of the project, addressed mandatory requirements, and addressed other matters. Subsection 5.4, specifically addressed mandatory requirements. The section listed 11 mandatory requirements and recited that the failure to comply with each and every mandatory requirement would render a bid non-responsive and that non- responsive bids would not be evaluated. The requirements included such things as the number of copies of the proposal required to be submitted, whether or not the submission was in the required format, and whether the submission included sample scheduling and administration manuals as provided elsewhere in the RFP. Subsection 5.4.3 was a mandatory requirement which read as follows: "Was the bid accompanied by a surety bond or certified check as specified in 2.12." Subsection 2.12, recited, in part, as follows: "All proposals shall be accompanied by a surety bond or certified check in the amount of ten percent (10%) of the submitted bid price's annual total and conditioned upon successful offeror submitting the specified performance bond within ten (10) calendar days following notice of award, in the form and manner required by the offeror. Failure by an offeror to provide the required bid guarantee in the manner stated, shall cause the proposal to be considered non-responsible [sic] to this solicitation." Department personnel certified mandatory criteria compliance on May 18, 2001. The signatures of Ms. Filar and Dr. Paulson on the form entitled "Part 1: Proposal Mandatory Criteria (amended)" indicated that both responders had met the mandatory requirements. When the proposals were submitted, the business relationship between Chauncey Group International and Experior Assessments, LLC., was in the nature of joint adventurers. Each provided the Department with a cover sheet reflecting that they were separate business entities and each entity signed the mandatory forms required by the RFP but, in fact, they had joined together to provide the service sought. There was no prohibition in the RFP against responses from partners or joint adventurers. In a letter dated May 30, 2001, the Chauncey Group informed Jim Brewer that the ownership structure had changed and that Chauncey Group International had purchased 100 percent of Experior Assessments, LLC. Mr. Brewer testified that he did not view this to be of any consequence and he did not consider this to be a supplemental response to the RFP. The letter did not give the Chauncey Group an advantage over ASI. The check which was provided to the Department for the joint venture was provided only by Experior Assessments, LLC. This was done despite ambiguous and inappropriate email advice from Jim Brewer that, "Yes, vendors responding as partners to our RFP should each submit a bond. The bond could represent each vendor's responsibility or share as long as this is clearly defined in the proposal." The advice from Mr. Brewer was contrary to the requirements of RFP Subsection 2.12. It was also contrary to the RFP because the time for asking questions of the Department, and receiving answers, had expired. However, this did not give the Chauncey Group any advantage and, in fact, the Chauncey Group failed to make the submission as suggested by Mr. Brewer. The check, submitted by Chauncey Group International was in the proper amount, and included funds from both Chauncey Group International and Experior Assessments, LLC. This submission complied with RFP Subsection 2.12 because there was only one proposal from the two entities, despite the submission of two cover sheets. Consequently, the certification by Ms. Filar and Dr. Paulson, that both responders met the mandatory requirements, was correct. Once it was determined that mandatory requirements had been met, then the four other major areas addressed in the RFP could be evaluated. This is provided by Subsection 6.3. These other areas were proposed services, which had a weight of 45.1 percent; reference checks, which had a weight of 9.9 percent; minority vendor participation, which had a weight of 5.1 percent; and cost, which had a weight of 39.9 percent. The proposed services portion of the RFPs was evaluated by Rosemarie Erwin, Cheryl O'Donoghue, Betty Hurley, Raquel Bassett, and Carrie Harris. The evaluators used a form entitled, "Revised RFP Evaluation Criteria-for CAN Services." They were not permitted to see the cost proposals. The proposed services portion of the evaluation could have generated up to 615 points for each proposer. All of the forms used by the proposed service evaluators were dated May 23, 2001. The last proposed service evaluation was turned in on May 31, 2001. The evaluators' background experience and knowledge of the areas and requirements of the RFP were sufficient; the evaluators were qualified, fair, and experienced. The evaluators arrived at varying conclusions, as would be expected. None of the evaluators' scores were arbitrary, capricious, or contrary to the requirements of the RFP. The reference checks were accomplished by Lee Skinner, a psychometrician who was an employee of the Department. The reference checks could have generated as many as 135 points for each proposer. The reference checks resulted in ASI attaining 125.6 points and the Chauncey Group receiving 118.3 points. The minority vendor participation was evaluated by Dr. Paulson, Mr. Brewer, and Ms. Filar on May 25, 2001. Neither the Chauncey Group nor ASI properly completed the minority vendor participation form. No points for minority vendor participation were awarded to either proposer. The minority vendor portion could have generated up to 70 points for each proposer. The cost proposals were evaluated by Dr. Paulson and Ms. Filar on May 25, 2001. The cost proposals could have generated up to 545 points for each proposer. The ASI cost proposal was zero for the line which stated: "5. Per applicant cost for written examination in Spanish (excluding audio tape)." Located by the zero in the space provided were two asterisks which were repeated below the authorized signature line. The sentence following the two asterisks stated as follows: "Please note: Spanish examinations are provided in oralformat [sic] only and include a test booklet." Subsection 3.9.5 of the RFP states, "Administer both a written portion and a skills-demonstration portion of the examination to eligible candidates." Subsection 3.9.5b of the RFP, at the tenth bullet, or "k" if the alphabet is continued after "b," states that the responder must, "Provide a Spanish language examination to a candidate requesting the translated exam. (Currently a Spanish written, oral and skills demonstration examination are provided at no additional cost)." ASI's response in the proposed services portion, at Subsection 4.5.K, which corresponds to Subsection 3.9.5b (tenth bullet) of the RFP, stated as follows: "ASI will continue to provide a written, oral and skills demonstration examination in Spanish when requested in advance by the candidate. A candidate who wants to take examination in Spanish must indicate such on their application and submit the appropriate fee. Under our current contract, ASI answered the State's additional needs by providing bilingual Nurse Aide Evaluators (over 15% of all Florida NAEs speak Spanish), allowing candidates to take the written and skills examinations in Spanish." ASI's response to item 5 in the cost proposal was not responsive because it provided only for oral examinations, and quoted no cost figure. Clearly, what was being solicited was the cost for written examinations. This resulted in the Chauncey Group's receiving ten more points in the cost category than ASI. The cost proposal figures, and the results of all of the other evaluations were put into a computer program by Ms. Filar and Dr. Paulson. The computer program generated the final results. Ms. Filar and Dr. Paulson were not, as previously noted, on the team which evaluated the proposed services. Ms. Filar and Dr. Paulson did not refer to the proposed services portion of ASI's response when addressing the cost proposals and they were not required to do so. Though it is clear what Richard Soule, vice-president of business development for ASI, meant to say in the cost proposal, the response must be evaluated only on what it actually says. On June 4, 2001, Dr. Paulson, by memorandum, forwarded the result of the evaluations to the Board. The memorandum had an attachment entitled "Evaluation of Proposals for RFP #DOH00- 051." The attachment elucidated the evaluation methodology used and provided details as to how the results were obtained. At a public meeting of the Board on June 13, 2001, the memorandum with the attachment was discussed. Ms. Filar was there to answer questions. Questions by board members were posed to Ms. Filar and she responded to them. A motion was made to award the contract as recommended by Dr. Paulson's memorandum with attachment and the motion was passed unanimously. The Board issued a Notice of Intent to award the contract to the Chauncey Group, five days later on June 19, 2001. The attachment considered by the Board reported that the Chauncey Group received a total of 1101.5 points and that ASI received 1060.9 points and asserted that the Chauncey Group was the winner. The point total was incorrect because in arriving at that figure, the attachment reported that the Chauncey Group received 125.6 on the reference checks and that ASI received 118.3. As noted above, it should have reflected that ASI received 125.6 and that the Chauncey Group received 118.3. Correcting this error, by adding 7.3 points to ASI's total, and deducting 7.3 points from the Chauncey Group score, results in final scores of 1094.2 for the Chauncey Group, and 1068.2 for ASI. This error alone would not affect the outcome of the recommendation to award the contract to the Chauncey Group or the Board's decision. However, the span between the scores, 26, is less than the 70 points which might have been awarded for minority vendor participation. As noted above, Dr. Paulson, Mr. Brewer, and Ms. Filar decided not to award points to either responder in the case of minority vendor participation. The standard for obtaining minority vendor participation points was set forth in the RFP as Part IV as the "Minority Vendor Participation Form." This form required the following: "(1) the name of the offeror company; (2) a statement as to whether or not the offeror qualified as a minority vendor; (3) a statement as to whether or not the offeror planned to use a minority business as a subcontractor; (4) the name and address of the subcontractor; and (5) how the minority subcontractor was to be used. In the case of ASI, Part IV, the "Minority Vendor Participation Form," was properly completed except for the question, "How do you plan to use the minority vendor." This question was not answered at all in the Part IV form. Even though Part IV was the only place in the RFP in which minority vendor participation was noted, the form itself is presented as an evaluation tool. There was no requirement that responders complete the form so long as the information was provided. Accordingly, it was of no consequence where the information was reported. ASI responded to the question as to how they would utilize minority vendors in Subsection 4.5.C of their technical response. This response was buried deep in ASI's proposed services response, and its location caused the Department to miss it entirely. Nevertheless, it is responsive and should have been considered for what it was worth. In the case of the Chauncey Group, Part IV, the "Minority Vendor Participation Form," was not provided at all. Instead, a document entitled Minority Business Enterprises was included. It provided the name of the offeror company, the Chauncey Group. The submission failed to note whether the Chauncey Group was or was not a qualifying minority vendor, although the overall context of the submission made it clear that the Chauncey Group was not a qualifying minority vendor. The submission stated that the Chauncey Group, was, "negotiating in good faith with the Minority Business Enterprise vendors listed below, and will select one to use on this contract." This responded to the requirement that the offeror plan to use a minority business as a subcontractor. The names and addresses of the proposed subcontractors were provided. The Chauncey Group met the final requirement by explaining that the minority vendor selected would provide printing and mailing services. As noted above, 70 points were available for minority vendor participation. There were no standards provided in the RFP for awarding points in this category. The efforts of both proposers were so minimal in the area of minority vendor participation that it was not arbitrary for the Department to assign no points in this category. Subsequently, the Department properly informed the Board that neither proposer received any points for minority vendor participation. The error which changed the point totals, involving the reference checks, doe not change the fact that the Chauncey Group received the most points. The Board was correct when it decided to issue a Notice of Intent to award the contract to the Chauncey Group.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the contract be awarded to the Chauncey Group. DONE AND ENTERED this 28th day of September, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 September, 2001. COPIES FURNISHED: Paul R. Ezatoff, Esquire Jeffrey L. Frehn, Esquire Katz, Kutter, Haigler, Alderman, Bryant & Yon, P.A. 106 East College Avenue, 12th Floor Post Office Box 1877 Tallahassee, Florida 32302-1877 Douglas A. Mang, Esquire Wendy R. Wiener, Esquire Mang Law Firm, P.A. 660 East Jefferson Street Tallahassee, Florida 32302 Ruth R. Stiehl, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Amy Jones, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact J.D. Bligh Construction, Inc. (Petitioner), was incorporated and began doing business on or about February 18, 1974. Petitioner engaged in the construction business; erecting, repairing and remodeling buildings and structures; and performing public works. The majority of Petitioner's work is subcontracted out. At Petitioner's inception, Jack D. Bligh and his wife, Carol E. Bligh, were co-owners with each possessing 50 percent of the stock in the business. Jack Bligh was the President and the only Director. Petitioner was started as a family business. At all times material hereto, Jack Bligh was licensed as a certified Management contractor by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. Petitioner is authorized by the State of Florida to engage in the construction business under his license. Petitioner had no employees other than Jack and Carol Bligh and subcontracted out work for which contracts were awarded or agreements entered into. All proposals for work and contract agreements on behalf of Petitioner were accepted and executed by Jack Bligh. Jack Bligh was the guarantor on behalf of Petitioner. For example, he was the guarantor for Petitioner's lease agreement for the site location of its business, dated June 15, 1988. Carol Bligh's duties with Petitioner were clerical and administrative, such as determining draw requests, ordering supplies and banking. She had no experience in the construction industry whether it was Management contracting or actual field experience. Jack Bligh, her husband, was responsible for the actual running of the business and handling the day-to-day operations of the business, such as contracting, estimating, bidding and hiring and firing subcontractors. On or about August 22, 1985, Jack and Carol Bligh formed J. D. Bligh Airport Construction, Inc., with Jack Bligh as the sole director and President, owning 49 percent of the stock, and Carol Bligh as Secretary, owning 51 percent of the stock. It was a wholly owned subsidiary and formed on the advice of their insurance agent and accountant for liability insurance purposes regarding a contract for work at the Fort Lauderdale International Airport, which at that time was a big project for Jack and Carol Bligh. In September 1988, Petitioner, as contractor, contracted with the Boca Raton Airport, Inc., d/b/a Boca Aviation to perform work at the airport at a cost of approximately $533,000. The subsidiary corporation, J. D. Bligh Airport Construction, Inc., was not used for this job. In July 1990, Petitioner entered into a contract as subcontractor to perform work at the Opa-Locka Airport at a cost of approximately $65,000. The subsidiary, J. D. Bligh Airport Construction, Inc., was also not used for this job. On or about August 8, 1990, J. D. Bligh Airport Construction, Inc., was changed to J. D. Bligh Caribbean Construction, Inc. The purpose of the name change was again for liability insurance purposes in order to perform work in St. Thomas, U.S. Virgin Islands. The Blighs were rebuilding apartments damaged by Hurricane Hugo. Also, in September 1992, Petitioner again contracted with Boca Raton Airport to perform work at a cost of approximately $272,000. Carol Bligh executed the contract and the performance bond. For 17 years, Jack Bligh remained Petitioner's President until on or about January 15, 1991, at which time Carol Bligh became President. She was gratuitously given additional stock in the business by her husband for her long years of service and dedication to Petitioner. With this additional stock, Carol Bligh also became the minority/majority stockholder. When Carol Bligh became President of Petitioner and minority/majority owner with 51 percent in January 1991, her main duties and responsibilities did not change. She continued with the clerical and administrative aspect of Petitioner's Management contracting business. However, her duties and responsibilities also expanded to include dealing with bonding, securing lines of credit and insurance, setting-up workers compensation, assisting in policy- making, financial planning and operational procedures, and contract negotiations. On or about October 3, 1991, Carol Bligh's duties and responsibilities relating to hiring and firing were officially increased by Petitioner's directors to include hiring and firing of all personnel, including office and field personnel. In 1990, Carol and Jack Bligh's daughter, Janice Bligh, joined the business. Using his more than 17 years experience in the construction business, Jack Bligh began training her in Petitioner's contracting business, which included taking her to job sites for observation of the work being performed. Around mid-1991, Janice Bligh was placed in control of field supervision, estimating and bidding. For the past year and a half, Jack Bligh performed these functions only when she was unable to do so. Janice Bligh received her training as a field supervisor from her father, Jack Bligh, through observing him and the subcontractors. His supervision extends over the subcontractors since the majority of Petitioner's work is subcontracted out. Janice Bligh is taking courses in contracting and has completed three; one in estimating, one in plan reading and one in the South Florida Building Code. She is not currently licensed in the construction industry but eventually wants to take the State licensing examination to become a Management contractor but that is 2 1/2 to 3 years away. She has limited knowledge of the statutory requirements placed upon a Management contractor in terms of authorized scope of work and required liability coverage. Since Carol Bligh became Petitioner's President, proposals and agreements or contracts have been signed by either Janice Bligh or Carol Bligh. Also, bonding documents have been signed by Carol Bligh. Authorized signers and users on Petitioner's bank account are Carol, Jack and Janice Bligh, individually, with either one of them being authorized to execute bank documents on behalf of Petitioner. When Petitioner needed funds for operating expenses, they came from Carol and Jack Bligh. A promissory note dated April 15, 1992, from Petitioner to Carol Bligh was signed by Carol Bligh, as President, and came from funds in Carol and Jack Bligh's joint account. However, another promissory note dated June 30, 1992, involved funds loaned to the businesses from a business owned by Jack Bligh's father. Additionally, a promissory note dated April 15, 1993, was from Petitioner to Carol and Jack Bligh, equally. On or about December 1, 1992, Janice Bligh became a shareholder and officer of Petitioner's business, acquiring 2 percent of the stock from Jack Bligh, thereby leaving him with 47 percent of the stock. Carol Bligh retained 51 percent of the stock. Even though Janice Bligh was a shareholder and part owner of Petitioner, an indemnity agreement with a bonding surety dated February 23, 1993, was signed by Carol and Jack Bligh only. Also, the agreement reflected no differentiation of liability. As to wages, Petitioner's quarterly wage report dated April 17, 1991, reflects Jack Bligh's salary as $3,650, Carol Bligh's salary as $7,250, Janice Bligh's salary as $5,200, Jill Bligh's salary as $1,209 and Lawrence Massey's salary as $4,093.76. Jill Bligh is another daughter of Carol and Jack Bligh. She performs office work, run errands and answers the telephone. She is neither an officer nor a director. Petitioner's quarterly wage report dated July 12, 1991, reflects Jack Bligh's salary as $650, Carol Bligh's salary as $650, Janice Bligh's salary as $5,200, Jill Bligh's salary as $1,698 and Lawrence Massey's salary as $1,593.77. Petitioner's quarterly wage report dated October 15, 1991, reflects Jack Bligh's salary as $440, Carol Bligh's salary as $600, Janice Bligh's salary as $5,200 and Jill Bligh's salary as $1,804.50. Petitioner's quarterly wage report dated January 27, 1992, reflects Jack Bligh's salary as $390, Carol Bligh's salary as $300, Janice Bligh's salary as $2,400 and Jill Bligh's salary as $1,522.50. Carol Bligh testified that she and Jack Bligh reduced their salary to aid the business economically in the bad economic times of the construction industry. However, her testimony is not credible in light of the salary paid their daughter Jill Bligh in relationship to the work she performed. Petitioner applied for certification by Respondent as a minority business enterprise (MBE) on March 24, 1992. An initial review of the documentation provided by Petitioner indicated that Petitioner did not meet the criteria for MBE status; however, questions remained so a telephone interview with Carol Bligh was held in July 1992. Based on the documentation provided and the telephone interview, Petitioner was denied MBE status and notified by certified letter, dated July 14, 1992. Petitioner has been certified as a MBE by local governments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services issue a Final Order denying J. D. Bligh Construction, Inc., certification as a Minority Business Enterprise. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of February 1994. ERROL H. POWELL 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 February 1994.
The Issue The issue to be determined is whether Florida Administrative Code Rule 64B13-4.001 (the Rule), adopted by the Florida Board of Optometry (the Board), is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner Nicole Yontz, O.D. (Dr. Yontz), is a graduate of the Inter-American University of Puerto Rico, School of Optometry. Dr. Yontz passed all parts of the NBEO exam in 2007, and has practiced as an optometrist in Nevada for approximately eight years. Petitioner Tammy Johnson, O.D. (Dr. Johnson), graduated from Indiana University and passed all parts of the NBEO exam in 1998. She practiced in Michigan from 1998 through 2003, and in Indiana from 2003 through 2016. The Board is the state agency charged with the regulation of the practice of optometry in the State of Florida pursuant to chapter 463, Florida Statutes. Intervenor, Florida Optometric Association (FOA), is a non-profit organization of approximately 3,300 members. Approximately 1,700 Florida-licensed optometrists are members of FOA, and the parties do not dispute that FOA has standing to participate in this proceeding. Petitioners each desire to practice optometry in the State of Florida. For purposes of this rule challenge, Petitioners are “substantially affected” by the challenged rule, as required by section 120.56(1)(a). Each of the Petitioners sought a waiver from the requirements of the Rule in order to proceed through the licensure process. The Board considered Dr. Johnson’s Petition for Waiver on February 26, 2016, and despite its counsel’s recommendation to approve the request for waiver, the Board denied the Petition. It issued a Notice of Petition for Waiver and Variance to that effect on March 14, 2016, stating that Dr. Johnson had failed to establish that the purpose of the Rule would be achieved by other means; that application of the Rule would cause a substantial hardship; or that requiring adherence to the Rule would violate the principles of fairness. The Board considered Dr. Yontz’s Petition for Waiver on August 19, 2016, and denied it as well. A Notice of Petition for Waiver and Variance was filed to that effect on September 16, 2016, citing the same reasons that were included in the Notice addressing Dr. Johnson’s Petition for Waiver, which are the statutory criteria for consideration of a waiver or variance pursuant to section 120.542. The position taken by the Board is consistent with its resolution of a number of other petitions for variance or waiver of the Rule considered by the Board. In order to be eligible to practice optometry in Florida, under the terms of the Rule as it now exists, both Petitioners would be required to retake the NBEO exam. The rule at issue in this proceeding is Florida Administrative Code Rule 64B13-4.001, quoted below, with the language that is the subject of the challenge underlined: The licensure examination authorized in Section 463.006(2), F.S., shall consist of the following parts: Part I – the Applied Basic Science (ABS) portion of the examination developed by the National Board of Examiners in Optometry (NBEO); Part II – the Patient Assessment and Management (PAM) portion of the examination developed by the NBEO which includes an embedded Treatment and Management of Ocular Disease (TMOD) examination. An applicant for licensure in Florida must obtain a passing score on the TMOD section of the examination; Part III – the Clinical Skills (CSE) portion of the examination developed by the NBEO. In addition to an overall passing score on the CSE portion, an applicant for licensure in Florida must obtain a score of 75 percent (75%) or better on each of the Biomicroscopy, Binocular Indirect Ophthalmoscopy, and Dilated Biomicroscopy and Non-Contact Fundus Lens Evaluation skills individually; and Part IV – a written examination on applicable Florida laws and rules governing the practice of optometry developed yearly by Florida Board of Optomety approved consultants in conjunction with NBEO, and administered by NBEO. The Board shall review and approve the content of the laws and rules examination annually. An applicant for licensure must achieve a passing score on all four parts of the licensure examination. For Part III, an applicant must receive an overall passing score on the CSE, as well as the required score of 75 percent (75%) or better on each of the three (3) individually identified skills, on the same test attempt. A score of 84 percent (84%) or better must be obtained in order to achieve a passing score on Part IV of the licensure examination. Passing scores for Part I, Part II, and Part III of the licensure examination are established by the NBEO. Given constant advances in research, developing knowledge in the area of basic and clinical science as applied to the diagnosis, correction, remedy, and relief of insufficiencies or abnormal conditions of the human eyes and their appendages, variances the scope of optometric practice among the states, and the importance of fundamental clinical skills to patient health and safety, passing scores on Part I, Part II, Part III and Part IV of the licensure examination must be obtained within the seven (7) year period immediately preceding licensure application. Certification Examination. A licensee applying for certification must obtain a passing score on either the TMOD examination embedded in the Patient Assessment and Management portion of the examination developed by the NBEO or a passing score on the stand alone TMOD examination developed by the NBEO. The Rule requires that an applicant for licensure must achieve passing scores on Parts I, II, III, and IV of the licensure examination within the seven-year period immediately preceding licensure application. The seven-year requirement is referred to as the “look-back period.” Petitioners are not challenging the authority of the Board to require passage of Part IV of the examination. The challenge is directed to the authority of the Board to require the look-back period. The Rule has contained a look-back period since at least 1979. It has been, at various times, eight years, seven years, and five years. The Licensure and Examination Process for Optometry in Florida There is no statutory provision in chapter 463 that authorizes licensure of optometrists who are licensed in other states to obtain a license in Florida by endorsement. In order for a person to practice optometry in Florida, he or she must apply for licensure under the process required by section 463.006. This provision expressly requires those who desire to become licensed in Florida “shall apply to the department to take the licensure and certification examinations.” (emphasis added). Applicants must be at least 18 years of age, graduate from an accredited school or college of optometry approved by rule of the Board, be of good moral character, have completed at least 110 hours of transcript-quality course work and clinical training in general and ocular pharmacology under certain delineated requirements, and have completed at least one year of supervised experience. With respect to the examination, section 463.006 provides that the Board may by rule substitute a national examination, and may by rule offer a practical examination in addition to the written examination. Section 463.006(3) provides that “[e]ach applicant who successfully passes the examination and otherwise meets the requirements of this chapter is entitled to be licensed as a practitioner.” State or National Examination Section 463.006 allows the Board to adopt a rule that provides for the substitution of a national examination as all or part of the examination. Section 456.017(1)(c)4., Florida Statutes, which is included in the provision that governs the Department of Health’s responsibilities with respect to examinations, specifies that it is the intent of the Legislature to reduce the costs associated with state examinations and to encourage the use of national examinations whenever possible. Consistent with this legislative directive, the Department of Health has certified a national examination, and no longer supports a state-developed practical examination for optometry. The Board has designated Parts I, II, and III of the National Board Examinations offered by the NBEO as three of the four parts of the Florida licensure examination. Part IV is an examination on Florida laws and rules and also is offered by NBEO, but is only taken by applicants for licensure in Florida. The Rule was amended, effective February 27, 2014, to establish this change in examinations. The NBEO was established in 1951 and is an independent, non-governmental, non-profit organization that administers the standard National Board Examinations, which are designed to test minimum competency of students. Since August 2011, students taking the clinical portion of the exam (Part III) take the examination in a controlled environment in North Carolina at NBEO’s testing location, as opposed to various locations across the country. Students may begin taking the examinations in their third or fourth year of optometry school. The NBEO national examinations are not really “geared” for individuals who are already practicing optometry. Parts I, II, and III of the National Board Examinations offered by the NBEO are a “national examination” as that term is used in section 456.017(1). Because of the way the NBEO Part III is administered in North Carolina, the Department has, in effect, delegated both the development and the administration of the examination to NBEO. Although the Board required passage of a Florida- specific practical examination prior to 2014, neither the Board nor the Department of Health currently offers a State of Florida specific practical examination. The Statutory Authority for the Rule The Rule cites as its rulemaking authority sections 456.017(1), 463.005, and 463.006(2). The Rule cites as its law implemented sections 456.017(1) and 463.006(2). Section 456.017(1) provides: (1)(a) The department shall provide, contract, or approve services for the development, preparation, administration, scoring, score reporting, and evaluation of all examinations, . . . . For each examination developed by the department or contracted vendor, to the extent not otherwise specified by statute, the board, or the department when there is no board, shall by rule specify the general areas of competency to be covered by each examination, the relative weight to be assigned in grading each area tested, and the score necessary to achieve a passing grade. . . . If a practical examination is deemed to be necessary, the rules shall specify the criteria by which examiners are to be selected, the grading criteria to be used by the examiner, the relative weight to be assigned in grading each criterion, and the score necessary to achieve a passing grade. When a mandatory standardization exercise for a practical examination is required by law, the board, or the department when there is no board, may conduct such exercise. . . . The board, or the department when there is no board, shall approve by rule the use of one or more national examinations that the department has certified as meeting requirements of national examinations and generally accepted testing standards pursuant to department rules. Providers of examinations seeking certification shall pay the actual costs incurred by the department in making a determination regarding the certification. The name and number of a candidate may be provided to a national contractor for the limited purpose of preparing the grade tape and information to be returned to the board or department; or, to the extent otherwise specified by rule, the candidate may apply directly to the vendor of the national examination and supply test score information to the department. The department may delegate to the board the duty to provide and administer the examination. Any national examination approved by a board, or the department when there is no board, prior to October 1, 1997, is deemed certified under this paragraph. Neither the board nor the department may administer a state-developed written examination if a national examination has been certified by the department. The examination may be administered electronically if adequate security measures are used, as determined by rule of the department. The board, or the department when there is no board, may administer a state-developed practical or clinical examination, as required by the applicable practice act, if all costs of development, purchase, validation, administration, review, and defense are paid by the examination candidate prior to the administration of the examination. If a national practical or clinical examination is available and certified by the department pursuant to this section, the board, or the department when there is no board, may administer the national examination. It is the intent of the Legislature to reduce the costs associated with state examinations and to encourage the use of national examinations whenever possible. Each board, or the department when there is no board, shall adopt rules regarding the security and monitoring of examinations. The department shall implement those rules adopted by the respective boards. In order to maintain the security of examinations, the department may employ the procedures set forth in s. 456.065 to seek fines and injunctive relief against an examinee who violates the provisions of s. 456.018 or the rules adopted pursuant to this paragraph. . . . * * * (f) The department may adopt rules necessary to administer this subsection. (emphasis added). Section 463.005 provides in pertinent part: The Board of Optometry has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter conferring duties upon it. Such rules shall include, but not be limited to, rules relating to: Standards of practice, including but not limited to, those provided for in s. 463.0135. Minimum equipment which a licensed practitioner shall at all times possess to engage in the practice of optometry. Minimum procedures which shall constitute a visual examination. Procedures for the safekeeping and transfer of prescription files or case records upon the discontinuation of practice. Supervision of supportive personnel. Courses and procedures for continuing education. Administration and prescription of ocular pharmaceutical agents. Section 463.006(2) provides: The examination shall consist of the appropriate subjects, including applicable state law and rules and general and ocular pharmacology with emphasis on the use and side effects of ocular pharmaceutical agents. The board may by rule substitute a national examination as part or all of the examination and may by rule offer a practical examination in addition to the written examination. There is nothing in any of these statutory provisions that expressly authorizes the Board to specify a time frame for taking the national examination prior to the time an application for licensure is filed. The Rule cites as a rationale for requiring the look- back period: constant advances in research; developing knowledge in the area of basic and clinical science as applied to the diagnosis, correction, remedy, and relief of insufficiencies or abnormal conditions of the human eyes and their appendages; variances in the scope of optometric practice among the states; and the importance of fundamental clinical skills to patient health and safety. In addition to the bases enunciated in the Rule, the purpose of the Rule is to ensure applicants are minimally competent to practice optometry with reasonable skill and safety. When the Board has been faced with petitions for variance and waiver seeking a waiver of the Rule’s look-back provision, Board members have consistently focused on their desire to protect the health, safety, and welfare of the public by ensuring that optometrists in Florida are well qualified and up to date in their skills. Since 2007, the Board has held multiple workshops and public hearings regarding the Rule, with the most recent occurring on May 13, 2016. The Rule is currently open for development, although the Board has not yet proposed any additional language. The Rule’s adoption history indicates that it has been amended multiple times over the years, most recently in 1999, 2002, 2004, 2010, 2011, 2012, 2014, and 2015. During the review of these amendments, the evidence presented did not indicate that the Joint Administrative Procedures Committee staff ever questioned the look-back language. While this information is evidence that can be considered in determining the validity of the look-back period, it is not dispositive. Two different attorneys serving as Board counsel have, by contrast, advised the Board that they did not believe that the Board has statutory authority for the look-back period contained in the Rule. Moreover, Terrance Nuberhaus, a former Board member now serving on the Board’s probable cause panel, could not identify any statute expressly providing authority for the Board to limit the acceptability of NBEO scores to any particular time frame. Equivalency Standards for the NBEO Exam NBEO exams have been revised over time. A copy of the NBEO equivalency statement is identified as Petitioners’ Exhibit 17, and Petitioners and Respondent agreed that this statement is considered an “adjunct to the deposition of Dr. Jack Terry.” The NBEO takes into account the revisions when determining whether a revised examination is equivalent to prior versions of the NBEO exams. The Board has recognized that the Part I and Part II National Board Examinations administered in 1991 are comparable to the Part I and Part II National Board Examinations administered today. The NBEO has developed equivalency statements which apply to any candidate who is attempting to complete the current three-part sequence of the NBEO exam, but who began the sequence under an earlier format. The purpose of equivalency is to keep the examinations equivalent, regardless of when the test was administered, and to reduce confusion and create a level of consistency, so that people can easily interpret and compare the results. The fact that NBEO has developed equivalency statements does not mean that the content of the examinations has remained static over time. Dr. Jack Terry, the Executive Director of NBEO, also testified that the skills evaluated in Part III of the test have changed over the years: Q. As to Part III, basically since 1993, am I correct that the main thing that has been added is a section dealing with injections? A. No. Since 1993, there have been many changes to the skills that have been added and some that have been taken away. I don’t have a full comprehensive list of those changes and when they occurred. For example, binocular ophthalmoscopy, I think, was added at some later point. Blood pressure measurements, I think, were added. A fundus contact lens evaluation was added. Punctal plugs and punctal plug insertion removal was added later on. Injections, as you indicated, was added later on. So there have been – and the purpose of the Part III Committee and Council is to look every year at the skills, currently there are 20 different skills, and to make sure that the Committee, the groups that give the National Board input are still comfortable with the 20 skills. Should it be increased. Should it be decreased. A few years ago, visual fields, confrontational visual fields were added. Just a small change. A few years ago saccadic eye movements were added to the exam. So there have been changes to the exam. It’s hard for me to say which one has been the biggest or the most or most profound. I think the changes have all been important. Q. But as far as the changes with additions or deletions, that has all been taken into account when the NBEO has determined its equivalency? * * * A. Yes, that’s all been taken into consideration in terms of the equivalence.
The Issue The issue in this case is whether Petitioner's request for license by endorsement as a professional engineer should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, James R. Eason (Petitioner), is the pavement management coordinator for the Hernando County Public Works Department. He is a registered professional engineer in the State of Georgia, having received Professional Engineering Registration Number 17320 in 1988. In March 1997, Petitioner filed an application with Respondent, Board of Professional Engineers (Board), seeking licensure by endorsement as a professional engineer in this state. On July 1, 1997, the Board issued its preliminary decision in the form of a letter advising Petitioner that his application had been denied. As grounds, the Board stated that Petitioner had received a raw score of 67 with five points awarded for Veterans Preference on the Principles and Practice portion of the examination. The letter further explained that a raw score of 70 or above was required in order for his score on the Georgia examination to be recognized in the State of Florida and that "Chapter 471, F.S. does not provide for awarding of points for Veterans Preference." The denial of the application prompted Petitioner to bring this action. Petitioner is a graduate of, and holds a bachelor's degree in civil engineering from, the Georgia Institute of Technology. He has a record of four years active engineering experience of a character indicating competence to be in responsible charge of engineering. The parties have also stipulated he is of good moral character, and he has never been under investigation in another state for any act which would constitute a violation of Chapters 455 or 471, Florida Statutes. Petitioner passed the Fundamentals portion of the professional engineering examination administered in 1973 by the State of Georgia. He obtained a score of more than 70. In April 1988, Petitioner took the Principles and Practice portion of the examination. A grade of 70 was required to pass the Georgia examination. Petitioner received a grade of 67 on the initial scoring of the Principles and Practice portion of the examination, plus a five-point Veterans Preference credit, for a total grade of 72. The Veterans Preference credit is provided by Georgia law to all candidates who are members or former members of the Armed Forces of the United States and meet certain service requirements. In Petitioner's case, he had served eight years on active duty as a member of the United States Naval Reserve, and he was honorably discharged as a Lieutenant on July 3, 1969, upon expiration of his active duty commitment. At least ninety days of his active duty military service was during wartime or at a time when military personnel were committed by the President of the United States. The examination administered by the State of Georgia in April 1988 was a national examination published by the National Council of Examiners for Engineering and Surveying, and it was identical to the examination administered by the State of Florida at that time. Florida, like Georgia, requires a grade of 70 to pass the examination, but it does not provide a Veterans Credit for service to candidates who are members or former members of the Armed Forces of the United States. Therefore, in the State of Georgia, a veteran can pass the examination with a raw score as low as 65. To this extent, the two examinations are not substantially equivalent. Among other things, Petitioner pointed out at hearing that he needed only three points to achieve a passing grade on the Principles and Practice portion of the examination. Therefore, he concluded that the awarding of that amount of extra points for being a veteran amounted to only a single standard deviation, and thus the extra points were immaterial in relation to the overall score. However, the Board does not construe this three-point deficiency as being "immaterial," and had Petitioner received the same score in Florida, he would not have passed the examination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Professional Engineers enter a Final Order denying Petitioner's request for licensure by endorsement as a professional engineer. DONE AND ORDERED this 25th day of November 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1997. COPIES FURNISHED: Joseph M. Mason, Jr., Esquire Post Office Box 1090 Brooksville, Florida 34605-1900 Edwin A. Bayo, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050 Angel Gonzalez, Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0755
The Issue The issue is whether the specifications in the request for architectural services first advertised by Respondent on November 12, 2002, are contrary to Respondent's governing statutes and adopted policies or are otherwise vague, arbitrary or contrary to competition.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is a consulting engineering firm. Its principal office is in Tampa, Florida. Petitioner is certified by and/or registered with the State of Florida and the School Board as a minority-owned business. Petitioner’s majority owner and president, Joe Robinson, is an African-American male. Petitioner employs several licensed professional engineers, including Mr. Robinson. Mr. Robinson serves as the "qualifier" for the firm, which enables the firm to provide engineering services in its corporate name. Petitioner does not employ any registered architects and, hence, does not have a "qualifier" which would enable the firm to provide architectural services in its corporate name. Respondent does not have a certificate of authorization from the Board of Architecture and Interior Design. Petitioner has an oral arrangement with Paul Jackson, a registered architect, which allows Petitioner to include Mr. Jackson's resume in its response to bid proposals and other competitive procurement solicitations. If Petitioner is awarded a contract using Mr. Jackson's resume, Mr. Jackson would become a "staff member" or "employee" of Petitioner. The specifics of such an arrangement are not entirely clear, however, because Petitioner has not been awarded a contract on a project where it submitted Mr. Jackson's resume. Respondent is a local school district of the State of Florida. Respondent is responsible for the construction, renovation, management, and operation of the public schools in Hillsborough County. To fulfill those responsibilities, Respondent is often required to obtain the services of architects, engineers, and other professionals through competitive procurement under Section 287.055, Florida Statutes, the Consultants’ Competitive Negotiation Act (CCNA). Relevant Background Recent Scrutiny of the School Board's Procurement Practices The School Board's process for procuring professional services has been the subject of considerable scrutiny over the past year. In May 2002, the Ernst & Young consulting firm completed a "forensic evaluation and analysis" of the School Board's procurement process. The Ernst & Young report identified a number of deficiencies in the process. In July 2002, the Gibson Consulting Group (Gibson), on behalf of the Legislature's Office of Program Policy Analysis and Governmental Accountability, completed a performance audit of the School Board. Gibson's assessment of the School Board's procurement process was generally favorable. The School Board's procurement process has also been the subject of several legal challenges brought by Petitioner. Indeed, this is the fourth case at the Division of Administrative Hearings between Petitioner and the School Board involving the School Board's procurement process under the CCNA. The first case, DOAH Case No. 02-2230BID, involved Petitioner's challenge to the specifications of a request for qualifications (RFQ) issued by the School Board in May 2002. The purpose of the RFQ was to implement the recommendation in the Ernst & Young report that the School Board supplement its in-house staff of architects and engineers in order to provide increased on-site supervision, management, and inspection of ongoing school construction projects. The Recommended Order in DOAH Case No. 02-2230BID concluded that the RFQ was arbitrary and contrary to competition because it did not inform potential Respondents in advance of the criteria or factors upon which the responses would be evaluated or the weight that would be given to each factor and because the selection committee members did not use a uniform method for evaluating the Respondents. The Recommended Order recommended that the School Board rescind the RFQ, which the School Board did. The second case, DOAH Case No. 02-3138RP, involved Petitioner's challenge to the new policies and summaries of procedures adopted as part of the School Board's Policy Manual in response to the Ernst & Young report and the deficiencies alleged (and ultimately proven) by Petitioner in DOAH Case No. 02-2230BID. The Final Order in DOAH Case No. 02-3138RP concluded that the new policies and summaries of procedures were not invalid exercises of delegated legislative authority, except for the provision which purported to make interviews optional for projects costing less than $1 million. The Final Order was not appealed. The third case, DOAH Case No. 02-3922F, involved Petitioner's request for attorney's fees and costs under Section 57.111, Florida Statutes, as the prevailing small business party in DOAH Case No. 02-2230BID. The Final Order in DOAH Case No. 02-3922F (issued in conjunction with this Recommended Order) concluded that Respondent was not substantially justified when it issued the RFQ and that no special circumstances exist which would make an award to Petitioner unjust. Accordingly, the Final Order awarded Petitioner $5,563.00 in attorney's fees and costs for DOAH Case No. 02-2230BID. As more fully detailed in the Recommended and Final Orders issued in those cases, the School Board's existing procurement process had its flaws, but the changes that were made to the process and the new policies which were adopted as a result of the recent scrutiny of the process adequately remedied those flaws. This case involves the application of those new policies for the first time. The School Board's Minority Business Enterprise Program The School Board created a Minority Business Enterprise Program (MBE Program) in June 1995 and, at the same time, the School Board established a "10 percent minority inclusion goal for all construction related services" (hereafter "10 percent MBE Goal" or "Goal"). The stated purpose of the MBE Program and the Goal was to "increase the opportunities for minority/women enterprises and individuals who participate in providing construction services as general contractors or subcontractors for Hillsborough County Schools." The Goal does not define the phrase "construction related services." Apparently, however, the Goal has never been construed by the School Board to apply to the procurement of professional services, such as architects or engineers. Instead, it has only been applied to vocational trades such as masonry, pluming, concrete, dry-walling, plastering, etc. This interpretation of the Goal -- which was confirmed by each of the School Board employees who testified at the hearing, including the manager of the MBE Program -- is consistent with the language in the document discussing the function and operation of the MBE Program. That document refers to "bids," "trades," "contractors," and "subcontractors" rather than the procurement of professional services. The School Board is expected to consider an expansion of the MBE Program and the Goal beyond its current scope to include the procurement of professional services as part of its 2003-04 agenda. The Request for Architectural Services and Petitioner's Protest As required by Section 7.30 of the School Board's Policy Manual, the RAS was published in the Tampa Tribune (on November 12, 2002), the Florida Sentinel Bulletin (on November 12, 2002), the Tampa Record (on November 14, 2002), and the La Gaceta (on November 15, 2002). The RAS announces the School Board's need for professional architectural services on six school projects, five involving new construction and one involving remodeling and renovation. The construction budgets for the projects range from $7.5 million to $13.6 million. The RAS states in pertinent part: Any applicant interested in providing architectural services shall make application by submission of the materials prescribed in the Project Information Packet. Required materials shall be separate and apart from any accompanying materials. Only applicants with offices in Hillsborough County will be considered. Professional liability insurance will be required for these commissions. The Project Information Packets, additional project information and the weights associated with each qualification and evaluation criteria can be obtained by contacting the Planning & Construction Office at (813) 272-4112 or via the Internet at http://apps.sdhc.k12.fl.us/sdhc2/planning/pa .htm. The RAS does not define the scope of the "architectural services" that are being sought. Apparently, however, the RAS is seeking "full architectural services," which means all of the design services for the project from the ground to the roof. In this regard, the selected architect or architects will be responsible for submitting to the School Board completed design plans which are consistent with the educational requirements established by the School Board and State law. To do so, it will be necessary for the architect(s) to engage engineers as consultants to design mechanical, electrical, plumbing, fire protection, and other engineered systems consistent with the architectural design. However, the selected architect(s) are ultimately responsible for ensuring that the design plans meet the specifications of the School Board. The selected architect(s) will remain involved in the project throughout the construction phase as well in an administrative capacity, e.g., administering progress payments, monitoring contract compliance by the builder. The Project Information Packet referenced in the legal advertisement announcing the RAS included the following materials: the policies and summaries of procedure governing the School Board's acquisition of professional services (i.e., Sections 7.29 through 7.33 of the Policy Manual) along with a document summarizing that process; documents describing the "District prototypes" for new elementary and middle schools; a map showing the location of the proposed school sites; a document titled "Standardized Submittal Requirements" (hereafter "Submittal Requirements"); and a document titled "Professional Services Selection Committee Evaluation Criteria" (hereafter "Evaluation Criteria"). In compliance with the requirements of Section 7.30 of the Policy Manual, all of those materials were available to potential applicants on November 12, 2002, in conjunction with the publication of the RAS. The Submittal Requirements set forth the information that the applicant must submit as well as the formatting requirements for paper and electronic submittals. The submittals were required to include a separate summary sheet for each of the evaluation criteria (described below) and all information related to a criterion was to be on the summary sheet or on supplemental sheets immediately following the summary sheet for that criterion. The submittal was also required to include a separate "SF 254" form, which is a standard form that provides general information about the firm. The factors which will be used to evaluate the responses to the RAS and the weights associated with each factor are set forth in the Evaluation Criteria as follows: WEIGHT TOPIC DESCRIPTION 25 Points Project/Application Correlation Correlation of applicant's experience and capabilities to the unique requirements of the project. 25 Points SDHC Track Record Applicant's performance on prior projects with the District, including ability to meet project schedule and budget. Greater consideration will be given to more recent projects and projects of similar scope. 20 Points Firm's Resume Demonstrated capabilities of the firm, with consideration given to corporate philosophy, community involvement, credentials of senior/professional staff 15 Points Firm's Current Workload An evaluation of the applicant's capacity to undertake additional work, in light of its current workload. 10 Points MBE Participation Whether the firm is a certified minority business enterprise,[1] and the applicant's demonstrated commitment to increasing the successful participation of minority and women owned businesses. 5 Points Prior/Current Volume with SDHC Volume of recent work awarded the applicant by the District. Score is inverse to volume. Applicants are presumed to start with a score equal to half of the available points for each category involving "experience related considerations." Because there are 100 total points available, each applicant will start with a total of 50 points. The Selection Committee will adjust the applicant's score above or below that number based upon its review of the materials submitted by the applicant. There are no schedules, "rating tables," or "tally sheets" to guide the Selection Committee in allocating points in each of the categories. Instead, the Committee will use a normative method of evaluating the responses in each category rather than a criterion reference. Under the normative methodology, the Committee will stratify or rank-order the responses in each category and then assign points to each response based upon where it falls within that stratification or ordering. It is not entirely clear how the Committee will translate the rank-ordering into point additions or subtractions to the presumed 50 points that each respondent starts with. That determination is left to the Committee, but it will be uniformly applied by the Committee members to all responses. That approach is markedly different from and seemingly more complex than the approach suggested by Petitioner through its sample forms in Exhibit P8. Under Petitioner's approach (which was characterized by Respondent's witnesses as the criterion methodology), the score for each category would be based upon a pre-established rating system applied by the members of the Committee (e.g., awarding +10 points if the evaluator considered the response to be "outstanding" in the category, 0 points for "average," -10 points for "poor") or a pre-determined table (e.g., awarding 5 points for prior work between $0 and $25,000; 4 points for prior work between $25,001 and $50,000, etc.). It is not entirely clear what benefit there would be to Petitioner or other applicants by knowing in advance the methodology that the Committee intends to use to translate the rank-ordering into scores for each category. In this regard, the Evaluation Criteria define the weights that are associated with each category and, where appropriate, explain generally how those points will be allocated within the categories (e.g., score for "prior/current volume of work with SDHC" is inverse to volume, meaning that the more work the firm has with the District, the fewer points it will get in that category). The information that is provided in the RAS contains sufficient guidance to enable applicants to prepare and submit a response. Indeed, it is significant that Mr. Jackson testified that his firm could prepare a response based upon the information that was made available to potential respondents in connection with the RAS. The deadline for submitting a response to the RAS was November 22, 2002, at 4:00 p.m. The School Board received responses from 27 firms prior to the deadline. Petitioner did not submit a response to the RAS. Instead, on November 14, 2002, Petitioner filed a notice of protest, and on November 19, 2002, Petitioner filed a formal written protest directed to the specifications in the RAS. As a result of Petitioner's protest, the RAS was put "on hold." The responses received prior to the submittal deadline have not been referred to the evaluation committee and no other action has been taken in connection with the solicitation or contract award process because of Petitioner's protest. The record does not reflect whether the School Board has sought to move forward with the evaluation and contract award process notwithstanding Petitioner's protest as it is authorized to do by Section 120.57(3)(c), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Hillsborough County School Board issue a final order which dismisses Petitioner's formal written protest. DONE AND ENTERED this 3rd day of February, 2003, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 3rd day of February, 2003.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the observation of the demeanor of the witnesses, the following facts are found: Respondent, Lloyd R. Day, has been employed by the Madison County School Board in the position of Finance Officer since May, 1971. He has been continuously employed in this position through a series of one-year contracts. On April 2, 1982, the School Board, upon recommendation of Petitioner, reemployed Respondent for the period commencing July 1, 1982, and continuing through June 30, 1983. Petitioner, Randall M. Buchanan, became Superintendent of Schools in Madison County in 1977. His duties are defined by law and rules promulgated by the School Board of Madison County. As part of his duties as Director of Finance, Respondent invested the idle funds of the Madison County District School Board following his employment in May, 1971, and continued to perform this function until approximately October, 1980. At the time Petitioner became Superintendent, he requested that employees write down their current duties to assist him in learning their functions. He retained this information in his own office files. This informal job description established that the finance officer was responsible for investment of all idle funds. Two other job descriptions for the position of finance officer also existed, one in the personnel office, which assigns responsibility for the investment of idle funds to the Finance Director, and one filed with the Public Employees Relations Commission, which does not include this specific function but contains an "other assigned duties" clause. The School Board has not adopted an official job description for the position of finance officer. This evidence, the testimony of Petitioner and Respondent, as well as the accepted practices within the school system established that Respondent was responsible for this function. He exercised his duty to invest idle funds of the Madison County District School Board from January, 1977, until approximately October, 1980, and did an excellent job investing during that period. His efforts enabled the Madison County District School Board to construct a half- million dollar football stadium with interest earned on such investment of idle funds in the Board's capital outlay account. During the fiscal year commencing July 1, 1979, and ending June 30, 1980 (1980 fiscal year), Respondent made 102 separate investments of idle School Board funds in certificates of deposit and repurchase agreements. As a result, the Madison County School Board earned interest income of $245,862.51. Respondent was criticized, however, in the audit report prepared by the Auditor General's Office for his investment practices during the 1980 fiscal year due to his failure to follow-up investments made by telephone with written confirmation or documentation. Respondent was so angered and upset with the auditor's criticism of the manner in which he made investments in the 1980 fiscal year that he told the auditor he would leave the School Board's funds in a passbook savings account rather than comply with the auditor's recommended investment procedures. With the exception of three certificates of deposit and one repurchase agreement, Respondent did in fact leave the funds in a passbook savings account at the Bank of Greenville, which paid a rate of 5.25 percent. As a result, interest income in the 1981 fiscal year (which ended June 30, 1981) totaled only $104,976.52, approximately $140,000.00 less than that which was earned in the 1980 fiscal year. In the report of the Auditor General for the 1981 fiscal year, the auditor noted on page 4, paragraph (13),that the Madison County District School Board lost approximately $92,000.00 in interest income as a result of failing to invest School Board funds in accordance with State Law. Section 236.24(2) , Florida Statutes, effective July 1, 1980, provides that a District School Board may invest funds not needed for immediate cash requirements in savings accounts only if the interest rate received is not less than prevailing US. Treasury Bill rates. Respondent was knowledgeable of that fact, having attended the Summer Conference of the Florida School Finance Officers Association in Orlando, Florida, in June, 1980. Following his return from that meeting, Respondent prepared a memorandum to Superintendent Buchanan dated July 8, 1980, in which he stated: At a meeting held in Orlando, Florida, by the Department of Education, recent legislation was discussed and explained to us. One Bill (CSSB 559)(Chapter 80-103, effective July 1, 1980) pertained to the subject of investment of public funds. The explanation given us at this meeting was that we are precluded from investing in time deposits unless the rate of return equals US. Treasury Bill rates. Respondent's memorandum went on to indicate that the Florida Bankers Association's interpretation of the new law was in agreement with that of the Department of Education. Respondent concluded his memorandum by stating "future investments must yield at least US. Treasury Bill rates or we must invest in US. Treasury Bills. By memorandum dated August 25, 1980, Respondent advised Superintendent Buchanan of the investment of School Board funds in two certificates of deposit. in addition, he advised the Superintendent that on August 25, 1980, he talked to personnel at the Department of Administration, Local Government Surplus Trust Fund, to request a quote on the amount of funds which he was putting up for bid. Respondent notes in his memorandum that when he received the response from the Local Government Surplus Trust Fund, they quoted rates substantially higher than the rates quoted by local banking institutions. Acting on this information, Respondent prepared an agenda item requesting that the Madison County District School Board authorize investments with the Local Government Surplus Trust Fund. At its meeting on September 4, 1980, Respondent appeared before the Board and explained the request to them. The Board voted to authorize investment of funds in the Local Government Surplus Trust Fund unless the Hoard obtain a rate of interest from a local banking institution of within one-half percent of that paid by the Fund. Although he received authorization by the Board on September 4, 1980, to invest funds with the Local Government Surplus Trust Fund, Respondent took no further action to initiate any such investments and, in fact, made no investments with the Fund until after the Madison County District School Board received the official audit report for the 1981 fiscal year from the Auditor General in June, 1982. Respondent claimed that the idle funds were not invested in other investment forms due to workload, lack of direction and a preexisting directive by the Petitioner not to place funds out of the county. These assertions are not credible and are rejected. Rather, Respondent left funds in passbook savings because of the audit criticism over his failure to confirm and document verbal fund transactions. Because of Respondent's failure to properly invest idle funds, the School Board lost approximately $92,000.00 in the fiscal year which ended June 30, 1981. Petitioner claimed that he was not aware of either the problem or its magnitude until after receipt of the final audit in June, 1982, one year later. However, in October, 1981, auditors from the Auditor General's Office met with Petitioner and Respondent and criticized the manner in which funds had been invested and the revenues received from such investments. The testimony of an employee of the Auditor General established that he told Petitioner of the problem and that he acknowledged it. In January, 1982, a second auditor meeting with the Petitioner took place, this time with School Board member Albert W. Waldrep present. Again, Petitioner was told of the problem and its magnitude in terms of dollars and cents. School Board member Claude Pickles, on his volition, met with representatives from the Auditor General's Office on January 26, 1982, and was similarly informed. Petitioner took no disciplinary action against Respondent until after the audit criticism was reported in the local newspaper in Madison County in June, 1982. In April, 1982, Petitioner had recommended the reemployment of Respondent and the School Board renewed his contract. At the time of Respondent's reemployment, the Superintendent and at least two of the five School Board members were aware of the audit criticism relating to the investment of funds. Still it was not until the newspaper reported the audit criticism that Petitioner or the School Board acted to discharge Respondent. There was no evidence of any prior disciplinary action against Respondent, nor had he ever received a written performance evaluation during his employment with the Madison County School Board.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner suspend Respondent without pay for a period of one year. DONE and ENTERED this 11th day of March, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 11th day of March, 1983. COPIES FURNISHED: David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 John D. Carlson, Esquire 1030 E. Lafayette Street, Suite 112 Tallahassee, Florida 32301 Randall M. Buchanan, Superintendent Madison County School Board Madison, Florida 32340 =================================================================
