The Issue The issue in the case is whether the Department of Transportation (Department) proposal to close a driveway connection between a state highway and property owned by the Kyriakou Revocable Trust Agreement (Petitioner) should be approved.
Findings Of Fact The Department is the state agency responsible for regulating access to the state highway system. The Department has commenced construction of highway improvements on US 19 in Pasco County, Florida. US 19 is a state highway, also identified as State Road 55. The project is known as the "US 19 Continuous Right Turn Lane Safety Improvement Project." The Pasco County portion of the project is 11 miles long, four miles of which are currently under construction. The project is intended to improve the safety of the highway by reducing the frequency of rear-end collisions, to improve pedestrian safety, and to facilitate mass transit operations. The project includes installation of a continuous right-turn lane, where feasible, as well as pedestrian sidewalks and median alterations. The addition of a continuous turn lane will allow drivers to execute right turns after leaving traffic lanes, thereby reducing the incidence of rear-end collisions. The Department is not planning to acquire additional property. The project is being constructed within existing right-of-way. The Petitioner owns a parcel of commercial property located at 1733 U.S. Highway 19, in Holiday, Pasco County, Florida. The parcel has been owned since 1986 by Soterios Kyriakou and Nomiki Kyriakou, as husband and wife, who transferred ownership to the Petitioner in 2005. The parcel is platted as a single lot and is bordered to the east by US 19 and to the north by a county road, Buena Vista Lane. Two driveways connect the parcel to US 19. One of the project goals was to reduce the numerous driveways that connect private parcels to US 19. Limiting driveway connections to the highway promotes safe traffic flow. In evaluating the four-mile segment prior to design, the Department reviewed more than 200 existing connections between the highway and adjoining parcels for compliance with safety and design criteria. Driveway width and space parameters are generally based on vehicle count and highway classification. Many of the existing connections were excessively wide or insufficiently spaced and failed to comply with appropriate design-safety standards. Improperly-sized or located connections increase the opportunity for accidents between cars and with pedestrians. In order to improve highway safety, the Department focused on limiting "conflict points" and providing for additional separation where possible, while providing for continued access at the existing connections. The relevant design standards applicable to the Petitioner's parcel would normally limit the width of driveways to 24 feet and require a minimum separation of 440 feet between driveways. The driveway connections between US 19 and the Petitioner's parcel exceed the appropriate width parameters. On the east side of the Petitioner's parcel, there are two separate 40-foot wide driveway connections to US 19, divided by a 25-foot wide grassy area. The Petitioner's driveway connections are substantially closer than the 440-foot minimum requirements. The northernmost connection between the parcel and US 19 is approximately 40 feet from the intersection of US 19 and Buena Vista Lane. The southernmost connection between the parcel and US 19 is approximately 105 feet from the corner of US 19 and Buena Vista Lane. The two driveways are approximately 25 feet apart. To the north side of the Petitioner's parcel, there is an 80-foot-wide connection to Buena Vista Lane, which will not be affected by the project. Although the Petitioner's parcel is not of sufficient width to allow compliance with the spacing standards, the Department has not proposed to eliminate both connections between the parcel and US 19. Similarly, the Department has not proposed to reduce the width of the remaining southernmost connection between the Petitioner's parcel and US 19. The Department has proposed only the closure of the northerly connection between the Petitioner's parcel and US 19. Continued use of the Petitioner's existing northernmost connection to the improved US 19 would present a significant conflict point for drivers entering US 19 from Buena Vista Lane and drivers intending to enter nearby Alternate US 19, with drivers turning onto or out of the Petitioner's parcel. There is an existing stop sign on Buena Vista Lane at the intersection with US 19. Persons driving east on Buena Vista Lane execute right turns at the stop sign and travel south on US 19. After the project is completed, such drivers will likely turn south into the new continuous turn lane before merging east into through lanes. The existing northernmost driveway located only 40 feet to the south of the intersection presents a conflict point for vehicles entering onto US 19 from Buena Vista Lane. A few hundred feet south of the Buena Vista Lane/US 19 intersection, US 19 connects to Alternate US 19. Drivers intending to travel west onto Alternate US 19 begin to move towards the right lane near the area of the Petitioner's parcel. After completion of the project, such drivers will likely be moving towards the new continuous turn lane, increasing the hazard presented by the Petitioner's existing northernmost driveway. The Department performed appropriate feasibility and engineering studies prior to proposing the closure of the connection at issue in this proceeding. There was no evidence presented that would suggest the studies were inaccurate or otherwise unreliable. There were multiple opportunities for public involvement during project development as well as direct contact between each impacted owner. The Department specifically notified the Petitioner of the proposal to close the northernmost connection between US 19 and the Petitioner's parcel. On more than one occasion, project representatives met with the Petitioner to discuss the proposal. The closure of the Petitioner's northernmost connection to US 19 will improve vehicular and pedestrian safety. The southernmost 40-foot driveway on US 19 and the 80- foot Buena Vista Lane connection provide reasonable access to the Petitioner's parcel. There are no practical alternatives that would improve vehicular and pedestrian safety while maintaining reasonable access to the Petitioner's parcel from US 19. The Petitioner asserted that the closure of the northerly connection will restrict access to his parcel, will significantly decrease the fair market value of the property, and will result in a loss of tenants and revenue. There was no credible evidence presented in support of the assertions, and they have been rejected. The Petitioner also asserted that flooding of Buena Vista Lane during rainstorms cause drivers to cross his property to avoid standing water. There was no evidence presented that the closure of the northernmost US 19 connection will have any impact on the referenced driver behavior or on any existing drainage issues.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order approving the closure of the northernmost driveway connection located at 1733 U.S. Highway 19, in Holiday, Pasco County, Florida. DONE AND ENTERED this 30th day of November, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 30th day of November, 2011. COPIES FURNISHED: Kathleen P. Toolan, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Soterios Kyriakou Kyriakou Revocable Trust Agreement 1010 Peninsula Avenue Tarpon Springs, Florida 34689 Deanna Hurt, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Gerald B Curington, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Ananth Prasad, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450
The Issue The issues in these cases are whether Respondent’s proposed contract award pursuant to a Request for Proposals for Medicaid Non-Emergency Medical Transportation in Palm Beach County, Florida, and whether Respondent’s proposed contract award pursuant to a Request for Proposals for Medicaid Non-Emergency Medical Transportation Services in Duval County, Florida, are contrary to Respondent’s governing statutes, Respondent’s rules or policies, or the request for proposals.
Findings Of Fact The Commission is an independent commission of the State of Florida created pursuant to Section 427.012, Florida Statutes (2009),1 and is housed administratively within the Department. The Commission sought proposals to provide Medicaid non-emergency medical transportation, and the Department administered the procurement process for the Commission by issuing the RFP and otherwise administratively handling the procurement for the Commission. Contracts were to be awarded for ten counties, including Palm Beach and Duval Counties. The proposers were required to submit a separate proposal for each county for which they were seeking a contract. The RFP incorporated three separate addenda, numbered one through three. Addendum No. 2 included a list of potential proposers’ questions concerning the RFP and the Commission’s responses to those questions. Each proposer was required to include with its proposal a signed acknowledgement certifying its receipt of each addendum. When the notice of solicitation was posted and the addenda were issued, no party filed a protest of the specifications within 72 hours of the posting or issuance of the addenda. MV Contract Transportation, Inc., and TMS Joint Venture submitted their responses to the RFP for both Duval and Palm Beach Counties. MV Contract Transportation, Inc., is a Delaware Corporation, which was incorporated on September 23, 2003. It is a wholly-owned subsidiary of MV Transportation, Inc., which is a California corporation incorporated on December 18, 1978. MV Contract Transportation, Inc., is a separate corporation from MV Transportation, Inc. MV Contract Transportation, Inc., and MV Transportation, Inc., have separate federal employer identification numbers, bank accounts, officers, and directors. TMS Joint Venture was formed by TMS Management Group, Inc., and Transportation Management Services of Brevard, Inc., pursuant to a Joint Venture Agreement dated October 15, 2009. TMS Joint Venture refers to the term “TMS” throughout its proposals as TMS Joint Venture and its respective venturers. TMS Management Group, Inc., was formed on January 4, 2005. Transportation Management Services of Brevard, Inc., was formed on November 23, 2004. Relevant portions of the Joint Venture Agreement provide: TMSG [TMS Management Group, Inc.] and TMSB [Transportation Management Services of Brevard, Inc.] do hereby acknowledge, pledge, and covenant with one another to allow the full use of their personnel, equipment, assets, and facilities to support and perform any contract(s) to which the Joint Venture may become a party and to do such other things and provide other support to TMS [TMS Joint Venture], as may be reasonably necessary, to allow TMS to submit bids, proposals, or otherwise respond to solicitations for its services on the projects and to perform all contracts which may be awarded to TMS. * * * TMSG shall provide financial and administrative support to TMS. In doing so, it is hereby authorized to submit bids and proposals on behalf of TMS. It is further authorized to execute contracts on TMS’ behalf and to thereby bind both TMSG and TMSB as Venturers. TMSG shall also be authorized to accept and cash checks made payable to TMS and to deposit such into its accounts for subsequent use and distribution in accordance with the joint instructions of the Venturers. TMSG shall otherwise be authorized to take all actions, including but not limited to the submission of all payment requests, payment of related bills and expenses, negotiate and execute any needed subcontracts, provider agreements, obtain insurance or bonds if needed and to otherwise execute all documents and conduct all of the business of TMS for the benefit of the Venture. TMS Joint Venture has been awarded contracts pursuant to the RFP for other counties. Those contracts have been entered into by the Commission and TMS Joint Venture/TMS Management Group, Inc., and Transportation Management Services of Brevard, Inc. The Department posted its initial Notice of Intent to Award the contracts pursuant to the RFP at 5:00 p.m. on November 16, 2009. For the Duval County contract, the posting showed that “MV Contract Transportation” had earned a total score of 88.33 and that TMS Joint Venture had earned a total score of 83.99. The initial Notice of Intent to Award proposed to award the Duval County contract to MV Contract Transportation, Inc. On November 19, 2009, TMS Joint Venture filed a notice of intent to protest the contract award for Duval County pursuant to the RFP. The notice of intent to protest identified the RFP by number, RFP-DOT 09/10-9005-JP-Duval County, Fl. The notice of protest stated: Please be advised that this firm represents the interests of TMS Joint Venture (“TMS”) regarding the above referenced matter. Please accept this as written notice of TMS’s intent to protest the above referenced intended award to MV Transportation, Inc. (“MV”). This Notice of Intent to Protest is being forwarded to you pursuant to paragraph 29.1 of the RFP and Florida Statute 120.57. No evidence was presented that any of the parties were confused about who was the intended awardee for the Duval County contract. No evidence was presented that, at the time of the filing of the notice of intent to protest, any of the parties were uncertain that TMS Joint Venture was protesting the intended award of the Duval County contract to MV Contract Transportation, Inc. In its Petition to Intervene for the Duval County contract, MV Contract Transportation, Inc., stated: On November 16, 2009, the Department posted a Notice of Intent to Award the Duval Contract to MV Contract. On November 19, 2009, TMS filed its Notice of Intent to Protest the award to MV Contract. On November 30, TMS filed a Formal Written Protest and Petition for Formal Administrative Hearing (“the Petition”). The initial posting for Palm Beach County showed that TMS Joint Venture had a total score of 91.66 and that “MV Contract Transportation” had a total score of 91.65. The initial Notice of Intent to Award proposed to award the Palm Beach County contract to TMS Joint Venture. On November 18, 2009, MV Contract Transportation, Inc., filed a notice of intent to protest the award of the Palm Beach County contract to TMS Joint Venture. On December 16, 2009, the Department posted a revised Notice of Intent to Award the Palm Beach County contract to “MV Contract Transportation.” The total score of TMS Joint Venture was revised to 89.65, based on a scrivener’s error by an evaluator. One of the evaluators had made a mistake in recording the scores from his handwritten score sheet to the typed score sheet. There was no evidence presented that any of the evaluators were given an opportunity to revisit or change their original scoring of the proposals. On December 18, 2009, TMS Joint Venture filed a notice of intent to protest the intended award of the Palm Beach County contract to MV Contract Transportation, Inc. TMS Joint Venture filed a Petition for Formal Hearing concerning the Palm Beach County contract with the Commission on December 28, 2009, as stated in the Certificate of Service. Section 1 of the Introduction portion of the RFP provides: The Department intends to award contracts to responsive and responsible Proposer or Proposers whose proposal is determined to be the most advantageous to the Department. . . . After the award, said Proposer will be referred to as the “Vendors.” For the purpose of each document, the term “Proposer” means the prime Vendor acting on its own behalf and those individuals, partnerships, firms, or corporations comprising the Proposer team. The term “prime vendor” is not defined in the RFP. There are references in other sections of the RFP which require the identification of the “prime contractor” in the completion of the Bidder Opportunity List and the Anticipated DBE Participation Statement. The terms prime contractor and prime vendor are synonymous. The Department interprets the term “prime vendor” to mean the entity that will be entering into the contract with the Commission and that will be bound legally to the terms of the contract. The cover letter of each proposal and the forms submitted which required a signature are signed by W.C. Pihl, vice president. Mr. Pihl is a vice president of business development for MV Contract Transportation, Inc. The cover pages of the proposals at issue submitted by MV Contract Transportation, Inc., state that the proposal is submitted by MV Contract Transportation, Inc., and underneath that name further state in italics “A Wholly Owned Subsidiary of MV Transportation, Inc.” The cover letter in each proposal states: “Enclosed please find MV Contract Transportation’s proposal in response to the State of Florida Department of Transportation’s Request for Proposal for Medicaid Non-Emergency Transportation Services” for the county in which the proposal is being submitted, and “I encourage you to select MV Contract Transportation as your partner for the provision of Medicaid Non-Emergency Transportation Services” for the county in which the proposal is being submitted. The Bid Opportunity List, which was required to be submitted with each proposal, identified the prime contractor as MV Contract Transportation, Inc. If awarded the contracts for Duval and Palm Beach Counties, MV Contract Transportation, Inc., is the entity who would be entering into the contracts and who would be legally bound to the contracts. It is clear that MV Contract Transportation, Inc., is the prime vendor for the proposals at issue. The proposals submitted by TMS Joint Venture stated: “The TMS Joint Venture with its respective Venturers are hereinafter collectively referenced throughout this proposal as ‘TMS,’ which is the entity submitting this proposal.” The proposals identified TMS Joint Venture as the prime vendor. On October 12, 2009, the Department issued Addendum No. 2 to the RFP, which included questions that were received from prospective proposers and the Commission’s responses. Question 7 stated: “Page 18, Section 28, Proposal Evaluation: Is the evaluation of the proposal strictly limited to the prime vendor and the Proposer Team as identified in Section 1, invitation?” The Commission’s written response was: “The evaluation of the proposal is based on the prime vendor and their demonstration of their ability to fulfill the requirements of the scope of services.” TMS Joint Venture takes the position that question 7 in Addendum No. 2 means that the evaluation of a proposer’s experience and capability to fulfill the requirement of the scope of services is limited to a review of the experience and capability of the prime vendor and that the experience of others who are part of the proposer team may not be considered by the evaluators. MV Contract Transportation, Inc., takes the position that the experience of others who are a part of the proposer team may be considered in determining whether the prime vendor has the ability to fulfill the requirements of the scope of services. It is not clear from the testimony what the position of the Commission is concerning whether question 7 in Addendum No. 2 limited the evaluation to the prime vendors’ experience. Joyce Plummer, the Department employee responsible for the procurement, relied on the Commission for the answers to the questions asked by the proposers. Bobby Jernigan, the executive director of the Commission, relied on his staff to answer the questions. Thus, no one clearly stated the Commission’s position as to what the Commission intended by the response to question 7 in Addendum No. 2. The proposed recommended order of the Commission does little to shed light on whether the Commission intended to limit the evaluation to the experience of the prime vendor. For example, in its proposed recommended order, the Commission states that the statements about MV Contract Transportation, Inc.’s, experience which included MV Transportation, Inc.’s, experience were not misrepresentations, “as long as it is proper for the proposer to have included information about its parent company” and certain claims made by MV Contract Transportation, Inc., are true, “unless MV can only make claims as to the particulars of MV Contract Transportation, Inc.” Based on question 7 and the response to question 7 in Addendum No. 2 and the definition of proposer in the RFP, the evaluation and scoring of the proposals were to be based on the experience, solvency, assets, and capabilities of the prime vendor and not the prime vendor and the proposer team. If the Commission had wanted the experience and solvency of parent companies and affiliates to be considered in the evaluation, it could have said so in its response to question 7, but it did not do so. Section 8.1 of the Special Conditions of the RFP states: The Department will determine whether the Proposer is qualified to perform the services being contracted based upon their proposal demonstrating satisfactory experience and capability in the work area. The Proposer shall identify necessary experienced personnel and facilities to support the activities associated with this proposal. Section 20.2 of the Special Conditions of the RFP provides that the proposals shall include an executive summary, a management plan, and a technical plan. The sections were described in the RFP as follows: EXECUTIVE SUMMARY The Proposer shall provide an Executive Summary to be written in nontechnical language to summarize the Proposer’s overall capabilities and approaches for accomplishing the services specified herein. The Proposer is encouraged to limit the summary to no more than ten (10) pages. PROPOSER’S MANAGEMENT PLAN The Proposer shall provide a management plan which describes administration, management and key personnel. Administration and Management The Proposer should include a description of the organizational structure and management style established and the methodology to be used to control costs, services, reliability and to maintain schedules; as well as the means of coordination and communication between the Proposer and the Commission. The Proposer shall provide a management plan which describes administration, management and key personnel. The plan should address the following: Company’s experience in providing specialized transportation services, including but not limited to Medicaid NET. Include location and duration. Company’s assets available to operate in the county proposed to be served. List all assets that will be committed to this project. Describe the proposed local service area organizational structure and how it fits into the overall organizational structure of your company. Company’s ability to comply with the reporting requirements and the Scope of Services. Cite any failures to provide adequate and timely reporting in the past. Company’s solvency and ability to assume the risks of service provision in the proposed county. Does your company have a policies and procedures manual? If so, describe the type of policies and procedures contained in your manual, how often they are updated and how they are maintained. (Please provide a copy.) Describe your company’s driver training program. How will you ensure you’re [sic] your drivers and the drivers of any subcontracted transportation providers are trained? Does your company have a Quality Management Plan? If so, please provide a copy. If not, describe your methods for ensuring quality of services. Describe your company’s process for the procurement of subcontracted operators, if applicable, including your efforts for recruitment and retention of minority businesses. Please describe how your company’s internal office practices lessen the impact on non-renewable resources and global climate change (reduction in water, energy, paper use, minimalization of hazardous materials, compressed or flexible work week schedules, etc.). Discuss what initiatives your company will implement to effectively manage current funding levels and secure additional funds to support the system. Provide 3-5 professional references regarding your organization’s ability and experience in providing specialized transportation, including but not limited to Medicaid NET services. The references should state the period of time service was provided. Identification of Key Personnel The Proposer should provide the names of key personnel on the Proposer’s team, as well as a resume for each individual proposed and a description of the functions and responsibilities of each key person relative to the task to be performed. The approximate percent of time to be devoted exclusively for the project and to the assigned tasks should also be indicated. 3. PROPOSER’S TECHNICAL PLAN The Proposer shall provide a technical plan which explains technical approach and facility capabilities. Technical Approach The Proposer should explain the approach, capabilities, and means to be used in accomplishing the tasks in the Scope of Services, and where significant development difficulties may be anticipated and resolved. Any specific techniques to be used should also be addressed in addition to the following: The Proposer should provide a description and location of the Proposer’s facilities as they currently exist and as they will be employed for the purpose of this work. Identify your company’s software and demonstrate its ability to comply with CMS, HIPPA and Commission software necessary for reporting data as required in Exhibit A, scope of services. Provide documentation demonstrating the number of specialized transportation trips, including but not limited to, Medicaid NET, provided on a monthly basis and show the complaint ration on said trips. Please state when and where these trips were provided. Describe your company’s process for tracking and resolving complaints received. Please include the length of time it takes a complaint to be resolved by your organization. Describe your company’s ability to monitor activities of subcontracted operators. Reference evaluation tools used and include copies in proposals if available. Please describe your company’s vehicle inspection and maintenance program to ensure safe and reliable functioning of their vehicles. Address how your company will comply with the requirements of Chapter 14- 90, FAC. Have your vehicles or your subcontractors vehicles, been involved in any accidents that resulted in a fatality over the last year? Please attach the accident report(s). Describe the process to acquire vehicles for use in the service area. Provide the estimated amount of time required to acquire vehicles. Please describe any alternative energy resources your company or your subcontractors (or expectations listed in procurement for subcontractors) may utilize, such as solar or wind energy, and use of bio-diesel or other alternative fuels in support of your company’s energy needs. Provide a detailed plan describing the process that will be followed to ensure a smooth contract start-up on January 1, 2010. Based on the definition of proposer, which includes the prime vendor and the proposer team, and based on the information which was required to be submitted, it is clear that the Commission contemplated that the prime vendor would not necessarily be providing all the services required by the contract and that some services could be subcontracted. In Addendum No. 2, the Commission responded affirmatively to question 8 which provided: Page 15, Section 2a, Proposer’s Management Plan, #1 through #12 and Page 16, Section 3. Proposer’s Technical Plan #1 through #10, the terms “company” and “organization” are used throughout this section. Please verify that these terms are to mean the “Proposer.” The RFP and Addenda are not models of clarity; however, when the responses to questions 7 and 8 in Addendum No. 2 are considered together, information could be included about the prime vendor and the proposer team, but only the information about the prime vendor would be used in the evaluation process. Thus, the proposals would have to identify what information related to the prime vendor and what information related to the proposer team. The parties have stipulated as follows: MV Contract’s proposals, in part, described the experience, contracts, facilities, assets and/or personnel of some of its related entities (parent and affiliated corporations). Throughout its proposals MV Contract Transportation, Inc., refers to the term “MV,” which it identifies on page 9 of each of the proposals as “MV Transportation, Inc. and its affiliates.” The cover letters for the proposals state that MV is the current Subcontracted Transportation Provider (STP) for the county for which the proposal is being submitted, meaning that MV is the current STP for Palm Beach and Duval Counties. However, MV is not the current STP provider in each of the counties; MV Contract Transportation, Inc., is the current STP provider in the two counties. In its proposals, MV Contract Transportation, Inc., refers to the experience of MV, meaning MV Transportation, Inc., and its affiliates. The proposals do not identify who the affiliates are. One would presume that MV Contract Transportation, Inc., is one of the affiliates, since it is a wholly-owned subsidiary of MV Transportation, Inc., and is submitting the proposals. The proposals do not delineate between the experience and capabilities of MV Contract Transportation, Inc., and MV Transportation, Inc., and its affiliates. The RFP required that each proposal address the “Company’s solvency and ability to assume the risks of service provision in the proposed county.” The RFP did not require that certain documents, such as a financial statement, be submitted to satisfy this requirement. How this requirement was to be addressed was to be left to the proposer. MV Contract Transportation, Inc.’s proposals address the solvency issue by the following: 5. Financial Resources and Stability MV is a privately held firm that has neither been bought by nor merged with another firm. The lack of this debt load associated with such transactions has allowed MV to control interest costs and keep money in the pockets of our customers and employees and out of those of lenders. MV is in sound financial condition and has proven ability to run services efficiently. We are well positioned to handle the risks of this program, and understand the contractual expectations of the CTD, and the service expectations of our passengers. The Company’s financial position is solid, and has strengthened over the last three years as evidenced by the increase in working capital and working capital ratios. The Company has the financial resources and wherewithal to meet its financial obligations. For more information regarding the financial viability of MV, please contact Mr. Jeff Heavin, Chief Financial Officer, at (707)863-8980, extension 3009. Based on the definition of MV in MV Contract Transportation, Inc.’s, proposals, an evaluator could not tell to what extent the proposal is addressing the solvency of MV Contract Transportation, Inc., and the ability of MV Contract Transportation, Inc., to assume the risks of service provision in the proposed county. This is important because MV Contract Transportation, Inc., is the entity that would be legally bound and responsible to perform under the contract. The Commission would not be contracting with MV Transportation, Inc., or other affiliates of MV Contract Transportation, Inc., and, therefore, cannot hold MV Transportation, Inc., liable for the performance of the contract. Section 28 of the Special Conditions of the RFP provides: Evaluation Process: A Technical Review team will be established to review and evaluate each proposal submitted in response to the Request for Proposals (RFP). The Technical Review team will be comprised of at least three persons with background, experience, and/or professional credentials in relative service areas. The Procurement Office will distribute to each member of the Technical Review team a copy of each technical proposal. The Technical Review team members will independently evaluate the proposals on the criteria established in the section below entitled “Criteria for Evaluation” in order to assure that proposals are uniformly rated. The Technical Review team will assign points, utilizing the technical evaluation criteria identified herein and complete a technical summary. Proposing firms must attain a score of seventy (70) points or higher on the Technical Proposal to be considered responsive. During the process of evaluation, the Procurement Office will conduct examinations of proposals for responsiveness to requirements of the RFP. Those determined to be non-responsive will be automatically rejected. Criteria for Evaluation Proposals will be evaluated and graded in accordance with the criteria detailed below. Technical Proposal (100 Points) Technical evaluation is the process of reviewing the Proposer’s Executive Summary, Management Plan, and Technical Plan for understanding of project, qualifications, approach and capabilities, to assure a quality product. The following point system is established for scoring the technical proposals: Point Value Executive Summary 25 Management Plan 30 Technical Plan 45 The evaluators selected by the Commission to evaluate the proposals for Duval County were Karen Somerset, Douglas Harper, and Elizabeth De Jesus. The evaluators selected to evaluate the proposals for Palm Beach County were Karen Somerset, Douglas Harper, and Angela Morlok. The evaluators were advised that they were not to discuss the proposals with the other evaluators and that they were required to do an independent evaluation. Each evaluator was to fill out a technical evaluation summary sheet, which essentially tracked the areas listed in Section 20.2 of the RFP for what was to be included in the proposals for the executive summary, the management plan, and the technical plan. Each evaluator based his or her scoring on the maximum allowable points per category. Some evaluators assigned points for various aspects of the proposals, and others just gave points on the overall quality of the category being evaluated. Regardless of the method that an evaluator used to allocate the maximum points for each category, the evaluator evaluated all the proposals in the same manner. None of the evaluators discussed the proposals with the other evaluators, nor did the evaluators discuss how the proposals were to be scored with one another. The RFP did not require the evaluation team members to meet to develop a method to allocate the maximum amount of points for the categories to be evaluated. Although the RFP states, “[t]he Technical Review team will assign points utilizing the technical evaluation criteria identified herein,” it is reasonable to construe the RFP to mean that each of the evaluators was to assign points independently. This reading is reasonable because the rest of the sentence in which that language appears reads “and complete a technical summary.” The technical summary was not to be completed by the evaluation team as a whole. Each evaluator was to complete his or her own technical summary for each of the proposals evaluated. Other than Ms. Somerset, who skimmed the contents of the RFP, none of the evaluators had reviewed the RFP, including the addenda, prior to their evaluations of the proposals. Thus, the evaluators were not aware that they were to evaluate the prime vendor, rather than the proposer as defined by the RFP. The evaluators did not consider whether the experience and capabilities being evaluated were those of MV Contract Transportation, Inc., or MV Transportation, Inc. They thought the proposer was “MV.” Some of the evaluators knew that “MV” had the STP transportation contracts in Palm Beach and Duval Counties and assumed that entity who had those contracts was the proposer. Section 1 of the Special Conditions of the RFP provides: Since July 1, 2003, the Department has been using the State of Florida’s web-based electronic procurement system. MyFloridaMarketPlace. PROPOSERS MUST BE REGISTERED IN THE STATE OF FLORIDA’S MYFLORIDAMARKETPLACE SYSTEM BY THE TIME AND DATE OF THE TECHNICAL PROPOSAL OPENING OR THEY WILL BE CONSIDERED NON-RESPONSIVE (see Special Condition 18). (Emphasis in original) TMS Joint Venture is not registered with the myFloridaMarketPlace system; however, the venturers, TMS Management Group, Inc., and Transportation Management Services of Brevard, Inc., are registered with the myFloridaMarketPlace system. No credible evidence was presented on whether the joint venture could have been registered with the myFloridaMarketPlace system. Question 9 of Addendum No. 2 of the RFP stated: “On several forms, the proposer’s FEID number is referenced. If the proposer is a joint venture, shall the FEID numbers of each venturer be listed or shall only the lead administrative venturer’s FEID number be listed?” The Commission’s written response stated: “Only the lead administrative venturer’s FEID number should be listed.” An entity’s FEID number can be used to register with the myFloridaMarketPlace system. Thus, TMS Joint Venture took this response also to mean that, since both the venturers were registered on the myFloridaMarketPlace system, the listing of the lead administrative venturer as being registered on the myFloridaMarketPlace system was sufficient to make the proposals responsive. When Ms. Plummer received the proposals from TMS Joint Venture, she questioned whether the proposals were responsive and discussed it with her supervisor. The Department took the position that both venturers were listed on the system; thus, the registering of the lead administrative venturer was sufficient to deem the proposals of TMS Joint Venture responsive to the requirement to be registered on the myFloridaMarketPlace system. The parties have stipulated that “TMS’s proposals described the experience, contracts, facilities, assets and/or personnel of its Joint Venturers.” MV Contract Transportation, Inc., contends that TMS Joint Venture is not responsive to the RFP because it listed Greater Pinellas Transportation Management Services, Inc. (GPTMS), as the provider for a contract that was listed in the experience section of TMS Joint Venture’s proposals. The listing was clear that GPTMS had been the contractor for the project listed and not TMS Joint Venture. The evaluators could tell by reading TMS Joint Venture’s proposals what experience related to TMS Joint Venture and what experience related to GPTMS. The evaluators could not tell from reading the proposals of MV Contract Transportation, Inc., what experience was related to MV Contract Transportation, Inc., because the experience was described as the experience of MV, which was defined as MV Transportation, Inc., and its affiliates. The RFP required proposers to provide “a description and location of the Proposer’s facilities as they currently exist and as they will be employed for the purpose of this contract.” TMS Joint Venture described its call center in Clearwater, which “contains 6,000 square feet, with 3,700 feet of additional space to rapidly expand, of administrative space and provides for all functional areas.” TMS Joint Venture leases the building in which the call center is located, but it currently shares space in the call center with GPTMS. TMS Joint Venture did not disclose that it is currently sharing space with GPTMS. However, there was no evidence presented that the call center as it currently exists does not have sufficient capability to meet the needs of the contracts at issue. In TMS Joint Venture’s proposals, the Management Plan section states: The TMS senior management has spent years constructing and honing our client eligibility screening systems. TMS staff began innovating these systems in 1991, when management quantitatively analyzed our existing transportation systems. TMS was alarmed when we quantified the considerable costs that running trips for ineligible clients, imposed on the business. The Management Plan goes on to say what measures TMS Joint Venture takes to ensure that ineligible clients do not receive services. Mr. David McDonald, the president of TMS Management Group, Inc., explained that the language was meant to demonstrate that the senior staff members of TMS Joint Venture had been constructing and honing eligibility systems since 1991 and that they had applied their experience in developing the screening measures used by TMS Joint Venture. In TMS Joint Venture’s proposals, the Management Plan includes the following statement: For more than 15 years, the TMS team has managed the administration, coordination, and provision of Medicaid and all other types of human transportation. The TMS operations team has nearly 350 years of Medicaid and other transportation related service delivery experience. This statement is referring to the experience of the management team members and not specifically to the number of years that TMS Joint Venture or the venturers had been in business. That portion of the proposals goes on to list the various current contracts of the venturers of TMS Joint Venture. Section 19 of the Special Conditions of the RFP provides: Proposals found to be non-responsive shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A proposal may be found to be irregular or non- responsive by reasons that include, but are not limited to, failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, and improper and/or undated signatures. Section 16 of Pur 1001 form attached to the RFP provides: Minor Irregularities/Right to Reject. The Buyer reserves the right to accept or reject any and all bids, or separable portions thereof, and to waive any minor irregularity, technicality, or omission if the Buyer determines that doing so will serve the State’s best interests. The Buyer may reject any response not submitted in the manner specified by the solicitation documents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the evaluation of the proposals of MV Contract Transportation, Inc., were contrary to the RFP; that the way in which MV Contract Transportation, Inc., submitted its proposals prevents the evaluators from evaluating the proposals in accordance with the RFP; that the notices of protests and formal protests of TMS Joint Venture were timely filed; and that the proposals of TMS Joint Venture are responsive to the RFP. DONE AND ENTERED this 25th day of March, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 25th day of March, 2010.
Findings Of Fact The sign here in issue was erected in 1992 and remained in the same location until December 1986. The sign is located along the west side of U.S. 19 in Pasco County, Florida, 41 feet from the western edge of the pavement. The DOT right-of-way at this location is 57 feet. U.S. 19 is part of the state highway system. Respondent stipulated that the sign was located in the DOT right-of-way and was in violation. Upon receipt of the violation notice, the association relocated the sign off of the DOT right-of-way within ten days of the notice of violation (December 11, 1986).
The Issue Whether the City or the State should pay the cost of relocation of utilities on a dedicated street.
Findings Of Fact The City of Vero Beach acquired title in fee to the land under review. On January 6, 1959, the City Council of the City of Vero Beach passed Ordinance No. 798, which dedicated a 200 foot wide portion of City property extending approximately 3,900 feet in length from the south City limits to the south line of Government Lot 2 for a public street as a southerly extension of Indian River Boulevard. A 200 foot wide right-of-way for the extension of Indian River Boulevard was dedicated by plat to the City of Vero Beach. Prior to and subsequent to a portion of the property being thus dedicated as a public street, the City constructed substantial improvements within the area of dedication, including water lines, sewer lines and electrical transmission and distribution lines. From the intersection of 21st Street (also known as Miracle Mile Extension) south to the south city limits, the 200 foot wide swath of land dedicated as a public street was never improved as a public thoroughfare and is to the present day virtually impassable. The Indian River Boulevard right-of-way north of 21st Street to the intersection of Royal Palm Boulevard has been a part of the State highway system since approximately 1951 and has been improved for travel by the public. The Florida Legislature enacted Chapter 26620 which was approved and filed March 16, 1951. Said Act described the subject area as "declared, designated and established as a State road." A map of the City of Vero Beach approved November 18, 1925 shows Indian River Boulevard extending through the area in question. The Hearing Officer further finds: The City had knowledge that the roadway in question was designated as a proposed State road to connect other State roads through the City. The utilities located in the roadway area were located with full knowledge of the proposed road. A designated land area does not need to be formally absorbed or improved in order to be reserved as a roadway for future improvement.
Recommendation Reinstate Order for the Petitioner to remove utilities from the proposed right-of-way of Indian River Boulevard. DONE and ORDERED this 19th day of October, 1976 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Phil Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 I. W. Cordisco, Esquire City Attorney City of Vero Beach Vero Beach, Florida Daniel M. Kilbride, Esquire Assistant City Attorney City of Vero Beach
Findings Of Fact On an application received by the Respondent on September 5, 1979, the Petitioner, Community Medical Transporters, Inc. (CMT), applied for a temporary non-emergency medical transportation license. CMT indicated that it proposed covering the Broward County area and had three vehicles available. The application was denied on September 21, 1979, by Respondent for the reasons already set out above. CMT was recently incorporated in September, 1979, and has not operated a non-emergency medical transportation service in Broward County or any place else. While at present and at the time of the denial there are no medical transportation services in Broward County providing exclusively non-emergency service, there are at least four HRS licensed ambulance services which provide both emergency and non-emergency service in the area. In addition, there are several transportation services licensed by the Public Service Commission under Chapter 323, Florida Statutes, providing non-emergency service in Broward County. CMT does not hold a certificate of public convenience and necessity from the Broward County Commission. Respondent has no rules which define what statutes the public interest, safety, or convenience and the Department's witness was unable to define what the terms meant except to say that they meant holding a certificate of public convenience and necessity from the appropriate county commission.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the application of Community Medical Transporters, Inc., for a non- emergency medical transportation services license be DENIED BUT WITHOUT PREJUDICE to an application for a permanent license. DONE and ENTERED this 28th day of December, 1979, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: S. Steven Craycraft Community Medical Transporters, Inc. 5270 N.W. 15th Street Margate, Florida 33063 Harold Braynon, Esquire District X Counsel Department of HRS 201 West Broward Boulevard Fort Lauderdale, Florida 33301 =================================================================
Findings Of Fact On December 8, 1986, Respondent owned a sign that had been erected along the east side of U.S. 19 in Pasco County, Florida, approximately 51 feet from the nearest edge of the nearest through lane. U.S. 19 at this location is a part of the State Highway System. The DOT right-of-way at this location extends approximately 82 feet east of the eastern edge of the nearest northbound through lane of U.S. 19. Upon seeing the DOT violation notice posted, someone notified Respondent. Respondent had the sign removed from the DOT right-of-way within ten days of the notice of violation.
Recommendation It is RECOMMENDED that a final order be entered assessing a $75 fine against All American commercial Properties, Inc., for owning a sign on the DOT right-of-way along the east side of U.S. 19 in Pasco County on December 8, 1986. ENTERED this 22 day of July, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 22nd day of July, 1987. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0450 All American Commercial Properties, Inc. Attn: Shelley A. Balduf 6847 County Road 54 New Port Richey, Florida 33552 Kaye N. Henderson, P.E. Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Attn: Eleanor Turner, M.S. 58 Thomas H. Bateman, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue The issue for disposition is whether Barry Amos d/b/a Cloud Nine Travel violated section 559.927, F.S., by operating as a seller of travel without being registered, and if so, what remedial action is appropriate.
Findings Of Fact At all times relevant to the issues here, Barry Amos operated a business at 4312-101 Plaza Gate Lane, Jacksonville, Florida. In the latter months of 1993, Mr. Amos was interested in starting up a travel agency. He requested information from the department and was sent a registration packet with forms and a copy of the statute and rules. On December 29, 1993, Mr. Amos wrote to the department requesting an exemption from registration based on his understanding that he was entitled to such. His letter references a telephone conversation with "Melissa" at the department and states: "She informed me that since I would not be handling ticket stock or actual payments that I would not be required to register or post the surety bond with your department." (Petitioner's composite exhibit #1) Mr. Amos did not receive his exemption; instead the department sent another letter on February 10, 1994 reiterating that the law required registration unless he provided proof that he was exempt. Joseph Nicolosi is an investigator with the department's Division of Consumer Services. On July 19, 1994 he conducted what he calls an "on-site inspection" of Mr. Amos' business. He had the information on the business but did not have a proper phone number. He looked in the yellow pages and found a listing for "Cloud 9 Travel" with a telephone number. The individual who answered Mr. Nicolosi's telephone call identified himself as Barry Amos. Mr. Nicolosi asked about coming to the office to look at brochures and to plan a trip from Jacksonville to Colorado. Mr. Amos told him that his wife would meet him someplace or send him the brochures. Mr. Amos also said that he would have to figure out the cost of the trip and call him back and that payment would be made by Mr. Nicolosi to him for the trip; he, Mr. Amos, would make the arrangements. After the telephone call was terminated, Mr. Nicolosi called Mr. Amos back a few minutes later and asked if he would accept a check as payment. Mr. Amos replied that it would be better to use a credit card but he agreed that he would accept a check. Mr. Amos concedes that when he was in business as Cloud 9, he accepted personal or cashier's checks from the public for ticket purchases. He did not accept payment from the public for what he called "services", like a commission. The checks he accepted for ticket purchases were made out to Cloud 9 Travel and were used to purchase tickets for the clients. Commissions were paid to Cloud 9 from the ticket sellers. Barry Amos ceased operation as Cloud 9 Travel in January, 1995. He never registered as a seller of travel.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Department of Agriculture and Consumer Services enter its final order finding that Respondent, Barry Amos d/b/a Cloud 9 Travel, violated section 559.927, F.S., imposing an administrative fine of $250.00, requiring that Respondent continue to cease and desist until properly registered as a seller of travel and denying such registration until the administrative fine is paid. DONE and ORDERED this 19th day of April, 1995, in Tallahassee, Leon County, Florida. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1995. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Jo Englander, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Mr. Barry Amos 4312-101 Plaza Gate Lane Jacksonville, Florida 32217
Findings Of Fact Six signs were described in a violation notice to Respondent Dandy Signs from Petitioner, Florida Department of Transportation dated July 7, 1977. The notice stated the signs were alleged to be in violation of Chapter 479 and rules 14-10.04; rule 14-10.03. By stipulation of the parties the charges on the signs listed were dropped except for the following two signs: a sign located one mile west of U.S. 1, State Road 44, Mile Post 28.25 with copy "Bob's Sandpiper Restaurant" and a sign located at Junction 17-92 Deland, U.S. Highway 17 (Section 35 Mile Post .02) with copy "Buddy Sheats". The foregoing signs have no permit and evidence was presented to show that each sign is nearer to a permitted sign than 500 feet. The Respondent admits that neither sign has been permitted and that both signs violate the spacing requirements. Respondent was given time to submit evidence that the signs had at one time been permitted, but no evidence was submitted to this hearing officer although the hearing was held in excess of three months before this order is being entered.
Recommendation Remove the subject signs and invoke penalty under Section 479.18, Florida Statutes. DONE and ENTERED this 3rd day of March, 1978. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1978. COPIES FURNISHED: Philip S. Bennett, Esquire Florida Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Dan Richardson, Owner Dandy Signs 324 Flagler Street New Smyrna Beach, Florida 32069
Findings Of Fact At all times pertinent to the issues herein, the Department of Transportation, State of Florida, was the state agency responsible for the promulgation, within the limits of its delegated legislative authority, of administrative rules governing the construction and operation of public highways within the state. The Department's Notice of Rulemaking to amend Chapter 14-96, F.A.C., was published in the November 10, 1994 edition of the Florida Administrative Weekly. The Department proposed to substantially amend the provisions of Rules 14-96.001, .0011, .002, .003, .004, .005, .007, .008, .009, .011, .012, .015; to adopt new Rules 14-96.0121 and 14-96.016; and to repeal Rules 14-96.0031, .006, .010, .013, and .014. Forms were also to be incorporated into the rules by reference. Racetrac Petroleum, Inc., (Racetrac), which, by stipulation, the Respondent agrees has standing in general to contest this rule, operates 41 properties in Florida. Approximately 90 percent of these are located on the state highway system. There were, at the time of the hearing, two sites under construction and eight more in the permitting process. Future plans call for further development with as many as one hundred sites under consideration. Factors considered by Racetrac when it looks at property during site acquisition include traffic counts and access to major thoroughfares and to the roads which abut the property. There are also factors considered in determining the continued development of a specific site. These include the risk to investment capital, and the potential for future reduction in access to the property. Any reduction in or change to access to and from the property changes the risk factor. The Department has two primary objectives in designing highways. These are planning for a reasonable lifetime for the highway as initially constructed, and controlling vehicle conflicts. The latter relates directly to the capacity and safety of the highway. When it designs the highways for this state, the Department relys on principles of traffic engineering to address their safety and operation efficiency. These principles are based upon an understanding of driver behavior. It is better to anticipate future safety and operational conditions and design for them, than to have to address a problem after it occurs. Driver behavior is an integral part of the information considered by traffic engineers in analyzing safety and operations of the state highway system. Other information considered includes the Department's highway construction and expansion plans. Of great importance in highway design is the need to minimize vehicle conflicts as there is a demonstrated relationship between highway safety and the number of vehicle conflicts on that highway. In designing highways, the Department engineers rely on design manuals which outline the geometric design of the road and provide for such control devices as pavement markings and the like. Safety is also affected by the various decisions that a driver must make in any given time. The larger number of decisions to be made, the greater the safety problem. In order to reduce the number of conflicts, the Department must either separate the drivers or separate in time the opportunity for conflict. Separating conflicts in time allows the driver to make separate decisions for each conflict, and in so doing, improves the safety of the highway. Access regulation is an inherent factor in highway operation to insure the safety and efficiency of the highway. Access management includes four basic principles. These are (1) reducing the number of vehicle conflicts on a highway segment; (2) separating conflict points; (3) limiting deceleration in through traffic lanes; and (4) taking turning vehicles from through traffic lanes. Access connections may be in the form of private driveways and public streets which intersect with a state highway. Management of access through those connections includes the placement and design of those connections while maintaining the right of the abutting property owner to access to the State Highway System. Proposed Rule Chapter 14-96, F.A.C. is the Department's guideline for access management. It addresses the process by which an abutting property owner may secure a permit for a connection to the State Highway System and provides the means for the closure or modification, by the Department, of existing connections. The existing Rule 14-96 was adopted in April, 1990, prior to the amendment of the Access Management Act in 1992. The rule under consideration here is the Department's attempt to amend Rule 14-96 in response to the provisions of the 1992 Act amendments and to treat matters not addressed in the 1990 rule. The proposed rule in issue here seeks to control a technical operation - the management of connections between private driveways and the State Highway System. Inherent therein is the use of numerous terms, the definition of which must be understood if the rule is to be effective and accomplish its purpose. Proposed Rule 14.96.002(6) defines the relocation, alteration or closure of a connection. An "alteration" of a connection is defined as agency action which would "substantially reduce the width" of a connection. "Relocation" of a connection is described as action to "substantially relocate" a connection. In each case, the terms "substantially reduce the width" and "substantially relocate" have meanings which are generally understood within the transportation engineering community. The former is generally recognized as a narrowing of a connection by one lane or a narrowing which affects the ability of vehicles to make a turning movement through the connection. The latter is generally understood to mean a lateral movement of the connection by one lane width. These definitions, however, do not necessarily answer the question of whether a change adversely affects the property owner. In most situations, the change is fact specific. What may be a small change may well have a significant impact on a connected property owner. What may be a physically significant change to a connection may yet have little impact on the property owner served by it. Some reductive changes may have a positive and beneficial impact on the operation of the connection. Petitioner seeks to show that the Department does not provide notice to property owners before it engages in either relocating, modifying, closing or altering a connection. It is true that the Department's current rules regarding access management do not provide for written notice to property owners when minor changes to driveway connections are made. However, the evidence introduced at hearing indicates that as a general practice, the Department does make contact with property owners to discuss such changes before they are made. It is further clear that when driveway connections are changed, the Department issues notices of intended agency action along with a notice of appeal rights, and there is no evidence in the record to indicate that the proposed rule would, in any way, deny a property owner's right to an administrative hearing when a proposed Departmental action would adversely affect those substantial interests. Another issue in contest is whether a raised median can constitute a traffic control device, and what procedures are required to change median openings. Proposed Rule 14-96.003(6) classifies medians and median openings as traffic control devices or features, and provides that the Department may install, remove or otherwise modify such features to promote traffic safety and efficient traffic operations. The use of raised medians is designed to correct safety problems on state roads as they prevent unlimited left turns. Traffic engineering studies have shown that when raised medians are installed on highways, the crash rate goes down and the Department's standard for installing or modifying traffic control features to promote traffic safety and operations is consistent with the Department's other safety and operational enhancement practices, such as separating conflicts. To do so, the Department must have flexibility in the design of its roads. Since they provide guidance and direction to vehicles travelling on the highway, raised medians are recognized as traffic control devices. The openings in such medians are also considered traffic control devices because they are an integral part of the median design. Raised medians are safety devices constructed on multi-laned roads. Ordinarily there are two lanes on each side of the median to the edge of the road. Median openings are designed to allow a vehicle proceeding one side of the median to cross to the opposite of the road without proceeding to an intersection. A median opening is not, however, a method of ingress or egress for property abutting the highway. A vehicle exiting from a piece of abutting property can enter onto the highway and proceed in one direction without crossing the median. In order to get to the opposite side of the road, or into the traffic proceeding in the opposite direction, however, a driver must go through a median opening or an intersection on a road divided by a raised median. A median opening does not give access to the private property abutting the highway. Though it facilitates access from the opposite side of the road, it is not a part of the connection as a vehicle passing through a median opening toward property on the opposite side of the highway must traverse two or more lanes of the highway before it can reach the juncture between the property and the highway. Petitioner attempted to establish that median openings are a part of the connection to a state highway, and there is some evidence to support that position. However, the better weight of the evidence indicates that median openings which are aligned with driveways are generally not considered connections to state highways, but are merely a convenience to the property owner. By themselves, and with the driveway, they permit opportunity to use the driveway but are not considered access features. They do not connect private property to the highway, but merely allow traffic to cross from one side of the highway to the other. As was stated, a raised median with openings placed at appropriate places thereon, is a safety device promoting the safe and efficient operation of the highway. The design of raised medians and the location of the median openings is determined through a study and evaluation of the needs of that section of the highway, including the need to provide for left turn movements. Highway traffic engineers must have the latitude to design and place medians where they will have the most salutary effect on the traffic on that highway. The ultimate consideration of highway designers is to design a highway meeting the current and anticipated traffic needs in the area in such a way that promotes traffic safety and efficiency on the state highways. The term, "promote", is understood and used by transportation engineers, some of whom may, however, prefer to use the term "improve." In either case, however, whichever term is used in connection with traffic safety and efficiency, they are generally understood as meaning the creation of a driving environment that would minimize or reduce crashes. Whereas those terms are ordinarily used as criteria supporting highway construction and design, they also afford abutting property owners the opportunity to challenge a Department decision to close a median opening on the basis that neither traffic safety nor efficient traffic operations would be promoted by the closure. There are frequently solid bases for maintaining a median opening. Closing it may overload an intersection with traffic that would otherwise turn at the median opening. In addition, certain types of abutting properties, such as high volume or specialized vehicle operations, might justify maintaining a median opening. The current version of Chapter 14-96 does not require the Department to give notice to abutting property owners when a median opening is to be closed. Proposed Rule 14-96.003(5) also does not specifically provide for a written notice to an abutting property owner. However, it has historically been Department practice to provide such notice to property owners prior to taking closure action, and it is the intention of the Department, as evidenced by the testimony at hearing, to continue the practice of addressing the issue of notice on a case by case basis. Petitioner seeks to challenge the Department's definition of certain terms used within the proposed rule and outlined in Proposed Rule 14-96.002. One of these is the term, "connection permit" which is defined in subparagraph (5). This provision defines a connection permit as: "a written authorization issued by the Department allowing the initiation of construction of a specifically designed connection and any specific conditions related to the subject connection to the State Highway system at a specific location generating an estimated volume of traffic. Petitioner alleges this definition allows the Department to expand its control by specifically limiting a volume of traffic through a given connection in violation of the statute which permits limitations on vehicle use only on "non-conforming" access points. The Department rejects this assertion, claiming the phrase was included only to refer to the connection category applied for. The Department's position is a reasonable reading of the language in issue, and it is so found. Proposed Rule 14-96.002(13), challenged by the Petitioners as being arbitrary, seeks to list those organizations whose publications are considered "generally accepted professional practice", another term challenged by the Petitioner. This rule includes the Department as one of those agencies whose publications fall within that category. Petitioner claims it is inappropriate for the Department to list itself as an authority for determining what constitutes generally accepted professional practice when that is considered as a standard by which the Department will take action. At first glance it would seem that the practice is questionable. However, evidence at the hearing, from experts with national reputations in the fields of traffic engineering and traffic management, indicates that the Florida Department of Transportation is recognized as a national authority in the area of access management, the subject matter with which the rule in question deals. Some Department publications in this area, and that of transportation engineering, have been recognized nationally. It should also be noted that the proposed rule does not prioritize by way of use preference any of the publications listed, nor does it require applicants to use Department publications. By the same token, it does not make Department studies which have been based on Department publications, any more authoritative than those based on publications by others. It would appear, also, that including the Department as an authority in the proposed rule is consistent with "generally accepted professional practice" in transportation engineering, and the evidence also indicates it is generally accepted professional practice in engineering to use local publications in making engineering decisions for the local area. Some experts even suggest it would be improper to disregard local publications and give credence only to national publications. Another term used by the Department in the Proposed Rule at 14- 96.002(19), and challenged here by Petitioner is "non-restrictive median." Petitioner contends this definition contravenes the Manual and Uniform Traffic Control Devices, (MUTCD), (Rule 14-15.010) as it, allegedly, includes any painted center line as a non-restrictive median. It appears the Department has taken this definition directly from Rule 14-94.002(23). The MUTCD does not refer to "restrictive" as opposed to "non-restrictive" medians. It was the intent of the Department, in drafting this provision, to simplify the application of its spacing standards, and in doing so, has reduced the relevant categories of connections from twelve to six. "Reasonable access" is defined in Proposed Rule 14-96.002(22) as: ... the minimum number of connections, direct or indirect, necessary to provide safe ingress and egress to the State Highway System based on Section 335.18, Florida Statutes, the Access Management Classification, projected connection and roadway traffic volumes, and the type and intensity of the land use. Petitioner claims that the use of the word, "indirect" in this definition attempts to nullify the amendments to the Access Management Act, (AMA), which, according to Petitioner, eliminated the authority of the Department to consider either alternate or joint access as reasonable access. The term "reasonable access" in its definition, requires the consideration of varying factors. The Department has a concern for the safety of the traveling public as well as a recognition of the statutory mandate encompassed in the AMA that every owner of property which abuts a road on the State Highway System has a right to reasonable access to the abutting state highway. These countervailing forces have to be maintained in balance. The determination of what constitutes reasonable access requires the evaluation of several factors pertinent to the specific instance. Factors to be considered include traffic volume, safety, operational efficiency, highway characteristics, growth potential and the impact of the proposed connection on all of the above. Also to be considered is the basic statutory right of a property owner to reasonable access and the impact on him of denial of that access. No firm and fast formula for determining the reasonableness of access has been devised. Direct access is easy to determine. It is a connection which joins the highway directly. However, there are other means of providing access. These may include access gained by connection to a side street which directly connects with the highway, or the use of a joint easement or a service road and are called indirect access. In determining whether indirect access can constitute reasonable access, many factors, including those cited above, must be considered. Another definition challenged is that of "significant change", as defined in Proposed Rule 14-96.-002(27)as: ... a change in the use of the property, including land, structure or facilities, or an expansion of the size of the structures or facilities causing an increase in the trip generation of the property exceeding 25 percent more trip generation (either peak hour or daily) and exceeding 100 vehicles per day more than the existing use. If the Department determines that the increased traffic generated by the property does not require modifications to the existing permitted connections, a new permit application shall not be required. Petitioners claim that this provision tries to modify the definition of significant change as found in the AMA by giving the Department the authority to determine what is a significant change. Comparison to the AMA, (at Section 335.182(3)(b)), Florida Statutes, reveals that the first sentence of the rule definition is identical to the statutory definition of significant change. In the rule, however, the last sentence is added. It does not change the meaning or effect of the statutory definition but merely advises the public that a significant change need not necessarily require a new permit application. Proposed Rule 14-96.003(4), as it relates to the cost of alterations to a permitted connection, provides that the cost of all construction related to the permit shall be the responsibility of the permittee, with certain exceptions. If an existing permit requires alteration to meet current standards, the alteration will be done at no cost to the permittee, unless the permittee requests modifications beyond those required by the Department. In that case, the change shall be subject to Departmental approval and shall be the responsibility of the permittee. Petitioner claims this provision conflicts with the AMA where it grants authority to modify existing permitted or grandfathered connections. Petitioner reads into this provision authority which is not there. This provision deals particularly with the cost of any modification or alteration and does not purport to grant to the Department any authority not already within its charter. Petitioners claim that Proposed Rule 14-96.003(7) exceeds the authority granted to the Department by attempting to place a burden on a connection permit applicant to demonstrate that the proposed connection will create a benefit to the State Highway System. This provision states: If the requirements of rule chapter 14-97 or other adopted Department access management standards cannot be reasonably complied with, or if the standards can be met but the applicant desires to submit an alternative plan, the applicant may submit alternative plans which will require the approval of the Department's District Secretary or designee. The acceptance of any alternative plans shall be based upon maximum achievement of the purpose of Rule chapter 14-97 F.A.C. and Section 335.181, Florida Statutes. Any alternative access plan proposed under this section will need to provide document- ation, in a traffic study, signed and sealed by a professional engineer registered in the State of Florida, how the plan better serves the driving public and not just the applicant's clients or customers. The Department will also consider the transportation conditions stated in Section 335.184(3)(a), Florida Statutes. This provision provides for an applicant, who can meet the Department's standards but who prefers to submit a non-conforming proposal, to do so. The rule thereafter requires that applicant to show, by use of a professionally accomplished traffic study, where the alternative proposal serves the public better than the conforming plan. Once the applicant identifies the specifics of his alternative plan, the Department and the applicant discuss the alternative and the Department has the opportunity to stipulate any conditions pertinent to the alternative. If there is no agreement, though not specifically provided for in the rule, the Department claims the applicant has an opportunity to challenge any condition felt to be improper. The forum for or method of that challenge is not stipulated. Petitioner also challenges Proposed Rule 14-96.005(3)(a)&(b) on much the same grounds, but also alleges that these provisions require notice and a new application for any modification to an existing permit even when no significant change occurs. Petitioners claim there is no specific statutory authority for the Department to require this. Subsection (a) of the proposed rule merely requires, in the event of a significant change, an abutting property owner to seek of the Department a determination as to whether a permit application must be filed and whether changes to existing connections are required. If no significant change exists, no action is required by the property owner, and even should there be a significant change, if no modification to the connection is necessary, no new permit application is required. Subsection (b) of the proposed rule calls for the Department to issue notice to a property owner when a significant change has occurred and the property owner has not filed a required permit application. In any case, the Department claims, the property owner is granted opportunity to contest either or both the determination of significant change and the need to modify the connection in a hearing conducted under the provisions of Section 120.57(1), Florida Statutes. The Proposed Rule does not so provide, however. Petitioner contends that Proposed Rule 14-96.007(4)(c) & (d) constitute an unlawful indexing and creates an unlawful presumption of reasonable access in cases of joint or alternate access. To be sure, the proposed rule does establish a presumption that existing access is reasonable but it also provides an applicant seeking additional access with an opportunity to rebut this presumption. The presumption in subsection (d), that existing "grandfathered" access connections are reasonable, carries with it the opportunity for the applicant to show that it is not. In short, the presumptions created by the rule are rebuttable. Petitioner also claims that the requirement in Proposed Rule 14- 96.007(9) for recording of access permit conditions is not supported by any statutory authority. As noted in the rule requirement, the conditions are limited to only those contained in the access permit, and the recording requirement is no more than an effort to insure compliance and avoid the possibility of future misunderstanding. Another proposed provision in Proposed Rule 14-96.007(10) is contested by Petitioner who alleges there is no statutory authority to attempt to eliminate expansion of highway right of way through the acquisition of abandoned transportation corridors for access to state highways by abutting landowners. The rule in question states that abandoned rail corridors which are adjacent to state highways are considered intervening properties. This applies, however, only to those properties acquired for non-highway uses, not to that acquired for highway expansion. Petitioner also claims that through Proposed Rule 14-96.011(1)(d) the Department, without statutory authority, tries to make "potential" safety or operational problems grounds for revoking or modifying an existing connection. Section 335.187, Florida Statutes, which governs the revocation or modification of connections does not refer to "potential" problems. The proposed rule allows the Department to close or modify a permitted connection if it determines the connection poses a current or potential safety problem which is documented by an engineering study. There is no quarrel with action to close or modify a connection which is unsafe when that condition can be shown through existing factors. It is not enough to only react to existing problems, however. Department engineers must be able to predict those areas which can reasonably be expected to pose future safety problems. In doing so, they may use information which indicates the potential problem by expected changes to the conditions creating traffic on the highway. Petitioner contests Proposed Rule 14-96.012(2)(b) and (3)(b)3. Its challenge to the former is based on its contention that the proposed rules ignore the statutory mandate regarding closure or modification of unpermitted connections since they are applicable only to new connections. Petitioner also asserts that the latter unlawfully allows the Department to determine that a property owner's request for hearing was filed for purposes of delay and is, therefore, arbitrary and capricious. The proposed rule allows the Department to close or modify unpermitted connections for a variety of reasons. Included are: (1) that significant changes have occurred; (2) the safety or operational characteristics of the highway would be negatively impacted; and (3) the connection is not grandfathered. Notwithstanding the rule permits a property owner with an illegal connection to maintain that connection pending hearing or issuance of the permit, the Department may nonetheless close the connection if it can determine the owner's actions are for the purpose of delaying the Department's exercise of its jurisdiction. Further, though the Proposed Rule 14-96.012(2)(b) refers to conditions which "jeopardize the public safety", the Department considers that language to be operationally similar to the "current or potential safety problem" standard, as used elsewhere in the rule chapter, and it contends it does not intend to treat the two types of connections differently in regard to modifications or closures based on safety considerations. Petitioner also contends that the Department has no authority to modify existing permitted or unpermitted legal connections during construction projects as is provided for in Proposed Rule 14-96.015. While changes may be made, the rule does not permit changes to be made indiscriminately. Modifications may be made consistent with the Department's access management standards as outlined in Rule 14-96 and with the Standard Index. Further, the Proposed Rule provides for property owners to be given notice of proposed Departmental actions, except for eminent domain situations, which would afford the property owner the opportunity to challenge the propriety or necessity of the proposed modification. Notice is currently given in these situations even though the current rule does not require it.
Findings Of Fact In January 1984, Respondent Department of Transportation (DOT) published a Request for Proposal for travel services (RFP). After receiving proposals, Respondent reconsidered its financial statement requirement and returned all proposals. DOT then published a second RFP deleting the financial statement requirement. In its second RFP, Respondent stated: The Department intends to award the contract to the responsive and responsible proposer whose proposal is determined to be the most advantageous to the Department. A responsive proposer is one who has submitted a proposal which conforms in all material respects to this Request for Proposal . . . As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any minor irregularity or technicality in proposals received. Proposers are cautioned to make no assumptions unless their proposals have been evaluated as being responsive. The RFP directed that all proposals include a resume of the travel agency, explaining the abilities that make it best qualified to perform the required services and information relating to years of experience, ownership, minority ownership, volume of business, proof of membership in Air Traffic Conference (ATC) and International Air Transport Association (IATA), number of persons employed, number of persons to be assigned to DOT business, and computer/communications facilities. The required minimum services specified in the RFP included: 1) planning fares and itineraries; 2) scheduling and arranging airline and rental car reservations; 3) issuing and delivering airline tickets; 4) processing unused tickets; 5) providing sufficient direct communications to DOT; 6) providing rental car confirmation numbers; 7) ensuring social security numbers recorded on tickets; 8) providing copies of used tickets for billing reconciliation purposes; 9) providing a monthly financial statement in a prescribed format, and 10) providing monthly summary analysis of travel trends and patterns. Each travel agency was also required to list any additional services it proposed to provide that were not included in the minimal travel service requirements and to list the additional services to be incorporated in the executed contract. In order to determine the proposal which offered the most advantageous combination of services, Respondent developed a rating scale for the assignment of points to each additional service proposed according to its value (zero points for no value, one point for limited value, two points for reasonable value, and three points for significant value). Respondent intended that the agency proposing the most advantageous combination of services would receive the highest number of points and therefore award of the contract. Proposals were submitted by eight travel agencies. The proposals were evaluated by Respondent and points were assigned on the zero to three point rating scale. Intervenor's score was highest with 24 points. Petitioner's proposal was second with 14 points. Respondent initially announced its intention to award the contract to Intervenor, but thereafter advised proposers that it intended to reject all proposals and withdraw the intended award. Respondent's intent to withdraw is based on its admitted failure to announce criteria. This failure allowed bidders to obtain points for services of questionable or non-existent value. Petitioner, for example, received one point for Telex service which was not available when the proposal was submitted and still not installed at the time of final hearing. The ratings were highly subjective as indicated by the disagreement of witnesses over the value of various services. Intervenor, for example, received several points for such questionable services as a newsletter, proposed workshops and staff visits. However, Respondent's principal rater supported his reasons for assignment of points on a rational basis. He conceded only a one point change in Petitioner's score and no change in Intervenor's score. Both Intervenor and Petitioner claim advantages for the reliability and range of services provided by their computer systems. Respondent lacked the expertise necessary to resolve these competing claims with the precision demanded by Petitioner. However, the evidence offered at hearing by Petitioner in support of its claims of system superiority was largely self serving and unsubstantiated by any studies or performance data.
Recommendation From the foregoing, it is RECOMMENDED that Respondent enter a Final Order denying the petition of Universal Travel and Tours, Inc. DONE and ENTERED this 9th day of August, 1984, 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 9th day of August, 1984. COPIES FURNISHED: Thomas M. Beason, MOYLE, JONES & FLANIGAN 118 North Gadsden Street, Suite 100 Tallahassee, Florida 32301 Mark A. Linsky, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32301 William L. Grossenbacher, Esquire BORNE, RHODES, & JAFFRY Post Office Box 1140 Tallahassee, Florida 32302 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
