Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Stipulated Facts: Petitioner submitted its application for DBE certification on or about July 27, 1993. Petitioner and Travel Professionals International Licensing Co., d/b/a Travel Professionals, Inc. (TPI) entered into a franchise agreement on September 28, 1993. Department conducted an on-site review of Petitioner's business on November 4, 1993. Department notified Petitioner of its intent to deny its application for DBE certification by certified mail on December 9, 1993. Petitioner requested a hearing pursuant to Section 120.57(1), Florida Statutes, on December 15, 1993. One hundred per cent of Petitioner's stock is owned by Jeanne Santo, a "socially and economically disadvantaged individual" as defined in Rule 14- 78.002(1), Florida Administrative Code, and therefore, Petitioner is in compliance with 14-78.005(7)(b), Florida Administrative Code. All securities which constitute ownership by Jeanne Santo are held directly by Jeanne Santo, and therefore Petitioner is in compliance with Rule 14-78.005(7)(d), Florida Administrative Code. The contributions of capital or expertise invested by Jeanne Santo are real and substantial, and therefore Petitioner is in compliance with Rule 14- 78.005(7)(f), Florida Administrative Code. The provisions of Rule 14-78.005(g) and (h), Florida Administrative Code, do not apply to Petitioner. The franchise agreement (Agreement) between Petitioner and TPI contains the following terms and conditions which are not in the agreements between Petitioner and Airlines Reporting Corporation (ARC); Petitioner and International Airlines Travel Agent Network (IATAN); and Petitioner and Systems One: a requirement that Petitioner locate its travel office only in "That portion of Pinellas County, Florida lying south of Florida State Highway 694". a requirement that Petitioner pay a quarterly advertising contribution. a requirement that Petitioner attend mandatory managers' meetings. ARC is customary in the travel agency industry. IATAN is customary in the travel agency industry. A leasing agreement for an automated reservation and ticketing system is customary in the travel industry. The Agreement requires that Petitioner be an ARC agent. Facts Not Stipulated The Fral Highway Administration (FHWA) is the federal agency that inisters the DBE program on the national level. The Department is the agency charged with the responsibility of administering the DBE program for the State of Florida. In making its determination of an applicant's eligibility for DBE, the Department considers: (a) Surface Transportation Uniform Relocation Assistance Act of 1987 (Public Law 100-17); (b) 49 CFR Part 23; (c) Chapter 339, Florida Statutes, (d) Chapter 14-78, Florida Administrative Code, (e) United States Department of Transportation (USDOT) administrative decisions; and (f) guidelines and training material from the FHWA or USDOT. The USDOT through FHWA provided the Department with a copy of DBE Program Administration Manual (Publication No. FHWA-HI-90-047, April, 1990) which the Department uses as a guideline for USDOT's and FWWA's interpretation of the DBE program. Below are portions of the Agreement which are pertinent to this preceeding: Purposes of this Agreement: We have developed the Travel Professionals International System (hereinafter called "the TPI System) for the operation of retail travel agencies, and we have developed policies, procedures and techniques that are designed to enable such agencies to compete more effectively in the travel market... You have requested our assistance, the use of the TPI Systems, and a franchise from us to operate a retail travel agency using the TPI System.... Franchise: We hereby grant to you and you hereby accept from us a franchise to operate a retail travel agency utilizing the TPI System, only at the following location(s): That portion of Pinellas County, Florida lying south of Florida State Highway 694. We will not establish another franchisee or agency owned by us within the territory described above, or establish other franchises or company owned outlets providing similar products and services under a different trade name or trademark or modify your territory without your written permission, so long as you are not in default under the terms of this Agreement.... You may move the office of the travel agency to a new location in the same general vicinity with our prior written approval, which approval will not be unreasonably withheld. You may not operate any additional office or location without our prior written consent, which consent will be given upon inspection and approval of such new premises.... Advertising Contributions: In addition to the service fees set forth above, you will be required to pay an "advertising contribution" in the amount of ONE HUNDRED FIFTY ($150.00) DOLLARS per quarter. We may adjust the advertising contribution annually on October 1, provided that any increase in the advertising contribution will be made only with the affirmative vote of at least fifty percent (50 percent) of the franchisees...The advertising contributions of all franchisees shall be placed in an advertising fund to be managed by us, and shall be used exclusively for advertising. Tradenames, Service Marks, Logos, Trade Secrets, and other Proprietary Matters: d. As you know, you will be given certain information about the Travel Professionals International System, our products and methods of doing business, as well as preferred supplier agreements, training and educational programs, computer operation and computer system arrangements, correspondence, memoranda, operating, sales and marketing manuals, and other confidential information. You recognize and acknowledge that this information is a valuable, special and unique asset belonging to us and constitutes our trade secrets which you agree to keep secret and not to disclose, during the operation of this Agreement, or after its termination or expiration, to any person or entity for any reason or purpose whatsoever.... Relationship of Parties: During the term of this Agreement, and any renewal term, you will be an independent contractor, and you will have no authority, expressed or implied, to bind us or to act as our agent, legal representative, or joint venturer. At our option, you will be required to describe yourself on all business forms, invoices, orders, stationery, and the like, as an independent licensee of Travel Professionals International, and to submit all such items to us for our written approval...The operation of your business shall be determined by your own judgment and discretion, subject only to the provisions of this Agreement and our policies and procedures, as they may be adopted or revised from time to time. We will not regulate the hiring or firing of your employees, the parties from whom you may accept business, the working conditions of your employees, or the terms of your contracts with your customers, except as may be necessary to protect the Travel Professionals International System. Service To Be Provided By Us: We will provide the following services to you pursuant to this Agreement: (b) We will prescribe certain standards of operation designed to enhance your profitability, which we shall expect you to follow. * * * (e) We may make recommendations to you regarding accounting and recordkeeping systems. * * * We will provide you with a policy manual, operations manual, preferred supplier manual, marketing manual, and an employee handbook which may be updated periodically. We will provide you with marketing, sales and promotional aids to include currently available professionally produced television spots, a series of high quality radio jingles, and from time to time, printed and other promotional material for use in your local area. We will operate an ongoing training program for you and your personnel. This program will include seminars, conferences, familiarization trips, and printed materials, such as bulletins and manuals, relating to marketing, management, and accounting procedures, and the like, and developments with the travel industry... * * * (l) We will provide, at no charge, up to five (5) person days of management expertise and sales effort effective on the first date of contract signing.... Your Obligation: During the term of this Agreement, and any renewal term, you will obligated to pay promptly to us any fees that are due hereunder, to maintain and keep such records and reports as we may prescribe, and to provide us with copies of such records and reports. You will be required to allow us to make inspection of your business and premises at any reasonable time, and to allow us to examine your books, tax returns and records during normal working hours. We reserve the right to establish a uniform accounting system to keep your books and records in conformity with such system. Your business shall be conducted in conformity with the provisions of this Agreement, with such policies and procedures as we may publish from time to time, and all state, federal and local laws and regulations.... You will be required to cause your chief operating officer or manager to attend our next available training program and to cause each of the franchise employees and principals (as shown on Schedule A attached hereto) to attend the required training courses set forth in our published policies and procedures. At present, mandatory training programs we provide include "New Owners Orientation", "New Manager Orientation", and the periodic "Managers Meetings". Although we are not obligated to do so, we offer, and plan to offer in the future, periodic (at least three times per year), Managers Meetings. Attendance at Managers Meetings, when offered, is mandatory. In the event you fail to send a representative to any Managers Meetings, then you shall pay to us the registration fee for that meeting, notwithstanding your lack of attendance at such meeting. Although paragraph 8 does require Petitioner to pay a fixed sum to TPI for advertising, it does not restrict the qualifying owner's exercise of control over the day-to-day decisions concerning advertising. In fact, TPI, under paragraph 11(i) of the Agreement, agrees to furnish certain materials to assist Petitioner in advertising on the local level. It is clear throughout the Agreement that the operation of the business is to be determined by the qualifying owner's own judgment and discretion subject to the provisions of the Agreement and TPI's policies and procedures which may be adopted or revised from time to time. Paragraph 4 , Terms of the Franchise, provides for the termination of the Agreement prior to its expiration date. It is clear from the qualifying owner's testimony ("Because nobody tells me what to do."), that she would terminate the Agreement rather than to allow TPI to exercise the day-to-day control of the business. There is no question that the qualifying owner has the authority to take such action under Paragraph 4 of the Agreement, if in no other manner, than by defaulting under Paragraph 4(4). This gives the qualifying owner the final authority as to who exercises the day-to-day control of the business. It is clear from the testimony of TPI's Vice-President of Franchise Sales and Development that TPI does not consider those provisions of the Agreement that appear to place restrictions on the qualifying owner's discretion as to the day- to-day control of the business as being mandatory, notwithstanding the language of the provisions to the contrary. Likewise, it is clear that TPI will not involve itself in the hiring, supervision or firing of employees because of the liability it would place upon TPI, notwithstanding any provision in the Agreement. The parties to the Agreement are experienced business people, who have expertise in the travel agency industry and franchising. The parties to the Agreement have clear and mutual understandings and interpretation of the meanings of the terms of the Agreement . Their understandings and interpretations are that the Agreement does not restrict the qualifying owner's exercise of the day-to-day control of the business. The parties' interpretation of the Agreement is a possible and permissible interpretation. TPI has some 60 franchisees within 22 states, with 17 franchisees in the State of Florida. There are several other franchisors that franchise travel agencies throughout the United States, including the State of Florida. The purpose of franchise agreements in the travel business in general, and this Agreement in particular, is to enable the small, independent travel agency to compete more effectively in the travel market. The growing trend in the travel agency industry is to belong to a franchise. The Agreement is a typical franchise agreement and customary in the travel industry.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order granting Petitioner's application for certification as a Disabled Business Enterprise. RECOMMENDED this day 9th of January, 1995, at Tallahassee, Florida. WILLIAM R. CAVE 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 9th day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0568 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. Petitioner has listed the stipulated facts separately as paragraphs 1 through 14. These stipulated facts have been adopted in Findings of Fact 1 through 14, respectively. Proposed findings of fact 1, 2, 3 and 4-5 adopted in substance as modified in Findings of Fact 23, 24, 26 and 21, consecutively. Proposed findings of fact 6 through 9 are neither material nor relevant to this proceeding. Proposed finding of fact 10 is adopted in substance as modified in Findings of Fact 20 through 22. Department's Proposed Findings of Fact. The Department has listed the stipulated facts separately as paragraphs 1 through 14. These stipulated facts have been adopted in Findings of Fact 1 through 14, respectively. Proposed findings of fact 1 and 2 are adopted in substance as modified in Finding of Fact 19. Proposed finding of fact 3 is adopted in substance as modified in Findings of Fact 20 through 22. Proposed findings of fact 4, 5 and 6 are adopted in substance as modified in Findings of Fact 15, 16 and 17, respectively. Proposed finding of 7 is rejected as being neither material nor relevant to this proceeding. Proposed findings of fact 8 and 9 are adopted in substance as modified in Findings of Fact 18. Proposed findings of fact 10, 11 and 12 are considered conclusions of law or legal argument and for that reason are rejected as Findings of Fact. Proposed findings of fact 13 and 14 are rejected as not being supported by the record. COPIES FURNISHED: Oscar Blasingame, Esquire Blasingame, Forisz, Smiljanich, P.A. Post Office Box 1259 St. Petersburg, Florida 33731 Dorothy S,. Johnson, Esquire Mary J. Dorman, Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee Florida 32399-0458 Ben G. Watts, Secretary ATTN: Eleanor F. Hunter Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, James R. Sherman, has filed a claim against the bond in the amount of $299.00 alleging that Passport failed to perform on certain contracted services. In response to a mail solicitation offer for a five-day, four-night cruise to the Bahamas, in May 1990 petitioner telephoned a Tampa, Florida telemarketeer then using the name of Euno Discount Distributors. After speaking with the telemarketeer, petitioner agreed to purchase the package for a price of $299.00. A charge in this amount was placed on his credit card. During the course of the telephone conversation, petitioner was never told that there were various restrictions on travel dates or that such dates had to be secured at least ninety days in advance. Euno Discount Distributors (or an affiliated entity) had purchased an undisclosed amount of travel certificates from Passport for resale to the public. Passport had agreed to honor and fulfill all travel certificates sold by the telemarketeer, and the certificates carried Passport's name, address and logo. After receiving his travel certificates, petitioner learned for the first time that he could not travel on a weekend when using his certificates and that other restrictions applied. Because of these restrictions, on January 7, 1991, petitioner requested a refund of his money. In response to his inquiry, Passport advised petitioner to contact "the sponsor from whom (he) purchased the package." By now, however, the telemarketeer was out of business. To date, petitioner has never received a refund of his money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted in the amount of $299.00. DONE AND ENTERED this 9th day of January, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of January, 1995. COPIES FURNISHED: James R. Sherman 3198 Bailey Road Dacula, Georgia 32114 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Robert F. Boles, has filed a claim against the bond for more than $1,000.00 alleging that Passport failed to perform on certain contracted services. On an undisclosed date in 1990, petitioner purchased a travel certificate from Passport entitling the holder to four nights lodging at the Lucayan Beach Resort and Casino in Freeport, Bahamas, which Passport described as "the nicest property on the beach." Petitioner used his certificate to travel with his wife and two children to Freeport on April 1, 1991. The room to which petitioner was assigned did not have hot water. Petitioner was offered a different room with a less desirable view, but the hot water was not working in that room, and the room had not been cleaned since the prior guest had departed. Since the hotel was otherwise fully booked, petitioner decided to keep his original room, but says he had no hot water during his entire four-night stay. Besides a lack of hot water, the cable television connector was not repaired until the second day, the room air- conditioner was "noisy," and the bed sheets were not changed during the entire stay. As to the latter deficiency, petitioner says this was particularly galling since one of his children had chicken pox while on the trip. He acknowledged that he never requested the house cleaning department to change the sheets but says he had no responsibility to do so. Finally, the burned-out light bulb in the room lamp was never replaced. Whether petitioner asked that it be changed is not of record. When he checked out of the hotel, petitioner expected an adjustment on his bill but received none. Because of the foregoing problems, petitioner asks that he be refunded in excess of $1,000.00, which he says represents his costs incurred on the trip. According to the evidence, petitioner paid a $90.00 deposit to Passport in October 1990, plus $692.90 for upgrades to better accommodations, additional services and taxes in February 1991. The record does not show what portion of the $692.90 pertains to the upgraded accommodations. The derivation of the remaining part of petitioner's claim is unknown. The hotel's version of what occurred is found in a letter dated July 5, 1991, but it is hearsay in nature. It does corroborate other evidence that the hotel offered petitioner an apology, gave his family a free meal one evening, and attempted (albeit unsuccessfully) to resolve the problems.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be approved, and he be repaid $346.45 from the bond. DONE AND ENTERED this 13th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 13th day of December, 1994. COPIES FURNISHED: Robert F. Boles 1522 Ohio Avenue Palm Harbor, FL 34683 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, FL 32399-0810
The Issue Whether Petitioner is entitled to an exemption from the requirements of Section 559.927, Florida Statutes, under subsection (12)(h) of the statute.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Global Touring, Inc., is in the wholesale travel business. It sells Australia and New Zealand travel packages to travel agencies. Jennifer Pickens is Global Touring, Inc.'s sole shareholder and its President. Pickens has been in the travel business in Broward County, Florida, since 1983, when she started her own travel agency, Global Travel Service, which she operated as a sole proprietorship. At the time, the Air Traffic Conference (hereinafter referred to as the "ATC") had an airline ticket purchase and payment program for participating travel agents. In September of 1983, Pickens contracted with the ATC to participate in its program. She was given an ATC Agency Code Number (618310) and placed on the official ATC Agency List. Approximately a year later, Pickens began a wholesale travel operation, Global Touring Service, which sold tours to Australia and New Zealand. Global Touring Service and Global Travel Service operated out of the same office. Pickens used her ATC Agency Code Number to write airline tickets for both operations. Effective the close of business on December 30, 1984, the ATC terminated its airline ticket purchase and payment program for travel agents. The ATC program, however, was replaced by a similar program operated by the Airlines Reporting Corporation (hereinafter referred to as the "ARC"). Travel agents on the official ATC Agency List were given an opportunity, at their option, to be placed on the official ARC Agency List "in substantially the same status as that agent st[ood] on the ATC list on December 30[, 1984,]" by entering into an agreement with the ARC to participate in its replacement program. Pickens opted to participate in the program. She was assigned an ARC Agency Code Number and placed on the official ARC Agency List. On November 20, 1985, Pickens incorporated her business enterprises. She created one corporate entity, Jennifer R. Pickens Travel, Inc., with two operating divisions: Global Travel Service and Global Touring Service. The newly formed corporation continued to operate under the contract Pickens had entered into with the ARC. In 1986, Jennifer R. Pickens Travel, Inc., purchased another travel agency, Lighthouse Travel Services. Jennifer R. Pickens Travel, Inc., assumed Lighthouse Travel Services' contract with the ARC and Lighthouse Travel Services' ARC Agency Code Number and it cancelled the ARC agreement under which it had been conducting business prior to its purchase of Lighthouse Travel Services. Lighthouse Travel Services and Global Travel Service were combined into one retail travel operating division bearing the name of the former. In December of 1991, Jennifer R. Pickens Travel, Inc., changed its name to Global Touring, Inc., and eliminated its retail travel operating division. Since that time, it has engaged only in the wholesale travel business. On or about March 1, 1992, Global Touring, Inc., sold the assets of its former retail travel operating division, including its ARC contract and ARC Agency Code Number, to YAM, Inc. Following the sale, Global Touring, Inc., sought to enter into another contract with the ARC and obtain a new ARC Agency Code Number. Because the paperwork Global Touring, Inc., initially submitted to the ARC was lost, it was not until on or about December 9, 1992, that Global Touring, Inc., entered into such a contract and received a new ARC Agency Code Number (10-53349-3). The contract is still in effect. Since its inception, with the exception of the period from on or about March 1, 1992, to on or about December 9, 1992, Global Touring, Inc., has continuously operated under a contract with the ARC. While it has undergone a name change, it has remained under the ownership and control of the same person, Jennifer Pickens, during the entire time that it has had a contractual relationship with the ARC. Earlier this year, Global Touring, Inc. submitted to the Department an application for a statement certifying that, based upon the total number of years it has contracted with the ARC, it is exempt from the requirements of Section 559.927, Florida Statutes. Pickens, who prepared the application, failed to sign it. In the application, she asserted that Global Touring, Inc., had been "a member of ARC since: 09/14/83," holding "ARC Number 618310." The Department preliminarily determined to deny the application. In its letter to Pickens advising her of its preliminary determination (hereinafter referred to as the "Notice of Proposed Denial"), the Department gave the following reasons for its proposed action: Application for exemption unsigned, with wrong data; 2) ARC approval 10-53349-3, made 12/9/92 is less than 3 years. Such proposed action is consistent with the Department's practice of granting exemptions under subsection (12)(h) of Section 559.927, Florida Statutes, only to those sellers of travel who are able to show that they have an agreement with the ARC which has been in effect for at least the immediately preceding three years. Pickens responded to the Department's advisement with a letter of her own, the body of which read as follows: We wish to apply for a Formal Procedure Hearing. We applied for an exemption on July 22, 1994 and it seems that the reviewer completely ignored all the enclosures. We have been in the travel business since 1983. We took over Lighthouse Travel in 1985 and had the ARC number 618310 for seven years until selling Lighthouse Travel in 1992 and allowing the ARC number to remain with that part of the business. In 1992, after having our application lost, we again became members of ARC, and all of the above under the same company, Jennifer R. Pickens Travel Inc. which changed its name in 1991 to Global Tour- ing, Inc. In the interim we have become one of the 10 largest American Wholesalers to Australia and New Zealand. Our company can obviously prove an ARC relationship for 3 years (actually 11 years) and a history of selling travel for the same period. We therefore request an exemption as per our submis- sion and inasmuch as a formal hearing seems to be the procedure, we hereby request such a hearing. The letter was dated August 25, 1994, and signed by Pickens in her capacity as the President of Global Touring, Inc. After receiving Pickens' letter, the Department referred the instant matter to the Division of Administrative hearings.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order granting Petitioner's application for a letter of exemption pursuant to Section 559.927, Florida Statues. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of December, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1994.
The Issue The issue is whether, due to the nonresponsiveness or misscoring of Intervenor's proposal, Respondent's intent to award a contract to Intervenor based on its proposal submitted in response to a request for proposals known as Florida Travel Demand Modeling Software and License (RFP) is contrary to the governing statutes, rules or policies, or the RFP specifications, as provided by section 120.57(3)(f), Florida Statutes.
Findings Of Fact RFP and Proposals In November 2017, Respondent published the RFP. The RFP is divided into parts, including Special Conditions, Scope of Services, Price Proposal Form, and Introduction, which, according to Special Condition 36, are to be interpreted in this order in the event of conflicting provisions. The purpose of the RFP is to procure travel demand modeling software, which projects future service demands on a transportation system, so that transportation planners, engineers, and policymakers can design, schedule, prioritize, and budget transportation projects and expenditures. The Price Proposal Form is the first page of the RFP. It contains four columns to be completed by the proposer with dollar figures for year 1, year 2, year 3, and 3-year total. The Price Proposal Form contains five rows for the following prices: "Model Conversions," "Training," "Annual License Renewal," "Base Software Cost," and "OVERALL PRICE." The next part of the RFP is the Introduction. Introduction 1 invites interested persons to submit proposals "to provide travel demand modeling software and licensing in Florida for [Respondent], MPOs [Metropolitan Planning Organizations], local agencies and universities (teaching only)." The boldface language alerts prospective proposers that, although Respondent is conducting the procurement, the MPOs, local agencies, and universities in their academic capacity will be co-licensees with Respondent. Introduction 1 states that Respondent "intends to award this contract to the responsive and responsible Proposer whose proposal is determined to be most advantageous" to Respondent. Introduction 1 states that the estimated term of the contract is three years. Special Condition 1 warns that a proposer will be considered nonresponsive unless it is registered with the myfloridamarketplace system by the scheduled date for the opening of technical proposals. Special Condition 6 incorporates the Scope of Services. Special Condition 7 states that Respondent intends to award the contract to the "responsive and responsible vendor with the highest cumulative total points for the evaluation criteria." Special Condition 20 warns that a proposer may not apply "conditions . . . to any aspect of the RFP," and the placement of such conditions "may result in the proposal being rejected as a conditional proposal (see "RESPONSIVENESS OF PROPOSALS")." Special Condition 21 is "Responsiveness of Proposals." Special Condition 21.1 states that a: responsive proposal is an offer to perform the scope of services called for in this [RFP] in accordance with all requirements of this [RFP] and receiving [70] points or more on the Technical Proposal. 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 . . . failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, and improper and/or undated signatures. Special Condition 22.1 calls for each proposer to submit, each in its own sealed package, a Technical Proposal and a Price Proposal. Special Condition 22.2 requires that the Technical Proposal be divided into six scored sections and 30 unscored subsections; the six scored sections comprising five technical sections and one price section. The six scored sections are the six main sections of the Scope of Services, which is discussed below. Special Condition 22.4 states that "Technical Proposals should not exceed 30 pages in total." Special Condition 30 requires at least three evaluators with suitable experience and knowledge. Each evaluator will independently score each proposal, and the Procurement Officer will average the scores for each Proposer. During the evaluation process, the Procurement Officer is to examine the proposals for responsiveness and "automatically reject . . ." those that the officer finds are nonresponsive. Special Condition 30.2 explains that the technical evaluation "is the process of reviewing the Proposer's response to evaluate the experience, qualifications, and capabilities of the proposers to provide the desired services and assure a quality product." For the five technical sections making up the Technical Proposal, Special Condition 30.2.a assigns a maximum of 90 points, as follows: General Platform Capabilities 25 points Network 20 points Hardware Requirements and Options 10 points Development and Advanced Options 10 points Other Considerations 25 points These five sections are, respectively, Scope of Services 2, 3, 4, 5, and 7. Special Condition 30.2 states that, in evaluating the Technical Proposals, each evaluator is to use the following scale in assigning a single score for each section: Exceeds Reply fully meets all 4 Expectations specifications and offers innovative solutions to meet specifications. Reply exceeds minimum specifica- tions and provisions in most aspects for the specific items. Meets Reply adequately meets the 3 Expectations minimum described need, or provisions of the specific needs and is generally capable of meeting [Respondent's] needs for specific items. Partially Reply does not fully 2 Meets address the need, one or Expectations more major considerations are not addressed, or is so limited that it results in a low degree of confidence in the [proposal]. Reply is lacking in some essential aspects for the specific items. Does Not Meet Reply fails to address the 1 Expectations need, or it does not describe any experience related to the component. Reply is inadequate in most basic specifications or provisions for the specific items. Insufficient information provided to be evaluated. For the Price Structure, Special Condition 30.2.b states that the lowest Price Proposal earns 10 points and the other Price Proposals receive points based on a formula in which 10 is multiplied by a fraction whose numerator is the lowest Price Proposal and whose denominator is the price of the subject Price Proposal. Thus, a Price Proposal with the lowest price $100,000 would earn 10 points, and a proposal with a price of $120,000 would earn 8.33 points ($100,000/$120,000 x 10). Scope of Services 1 notes that the Scope of Services is the product of input from the Florida Model Task Force (FMTF), which comprises members of the Florida modeling community. Scope of Services 1 describes the objective of the procurement: [Respondent] has for more than three decades promoted a unified statewide modeling approach for consistency to the application of engineering and planning travel demand modeling activities. As part of this effort [Respondent] makes available a common modeling software platform for use by all public agencies in Florida which includes [Respondent], . . . MPOs, County and City Governments and Regional Planning Councils. Additionally, Florida universities are provided a limited teaching license for teaching and research purposes. [Respondent] seeks to . . . select a travel demand software package and license for the purpose of meeting the stated objective of providing a common modeling platform. This platform is intended to support modeling activities in the state and represent the Florida-specific standardized modeling procedures outlined in the Florida Standard Urban Transportation Model Structure (FSUTMS). * * * This scope of services represents input from the Florida Model Task Force (MTF)[,] . . . whose mission is to advance model development and applications to serve the transportation planning needs of [Respondent], MPOs and local governments. The input from the Florida MTF serves as a guide for developing the model platform scope. No one challenged the specifications of the RFP. Proposals were submitted timely by Intervenor, Petitioner, and Citilabs, Inc., which is the present vendor of Respondent's travel demand modeling software. The Procurement Officer examined each proposal to ensure that it contained a Technical Proposal and a Price Proposal and determined that each Proposer was properly registered to do business in Florida. Without undertaking further analysis of responsiveness, the Procurement Officer distributed the proposals to the evaluators for scoring, assuming that any failure to meet RFP mandatories would result in a lower score. For the Price Proposals, Citilabs submitted the lowest price, which was $96,000, so it received 10 points. Petitioner submitted a price of $180,000, so it received 5.33 points. Intervenor submitted a price of $260,000, so it received 3.69 points. These scores are not at issue. For the Technical Proposals, Intervenor received 83.33 points, Petitioner received 78.75 points, and Citilabs received 73.33 points. Thus, Intervenor received 87.03 points, Petitioner received 84.08 points, and Citilabs received 83.33 points. On December 20, 2017, Respondent published a notice of intent to award the contract to Intervenor. The intended award was protested by Petitioner, but not Citilabs. Responsiveness Introduction The Procurement Officer's responsiveness review never went beyond a determination that each proposer was registered to do business in Florida and each proposal contained a Technical Proposal and a Price Proposal. None of the evaluators conducted any examination of the proposals for responsiveness or reduced any score of Intervenor for the two instances of nonresponsiveness discussed in this section of the recommended order. In order to apply the deferential standards discussed in the Conclusions of Law, it is necessary to deem that Respondent determined that Intervenor's proposal is responsive on the two issues discussed immediately below. Although the RFP could have more clearly presented its mandatories by setting them out separately, its failure to do so is irrelevant. Dispersed through the RFP are numerous requirements imposed upon a proposal that, if ignored or violated, would render the proposal nonresponsive. The items discussed in this section of the recommended order are mandatories in the RFP. In its proposed recommended order, Petitioner claims that Intervenor's proposal is nonresponsive in model conversions and special access to the software. Conversions of ABMs and Timeframes for Conversions of All 13 Models Except for three provisions, the RFP could easily be misconstrued to call for the submittal of travel demand modeling software on a platform that might or might not accommodate the platforms, and thus the travel demand modeling software, presently used by Respondent, the MPOs, and local agencies. The first of these exceptions is in the Price Proposal Form. The first of only four price categories in the Price Proposal Form is "Model Conversions," a prominent two-word reference that stands without explanation or context, although the plural form alerts the proposer to the need to price more than one conversion. Nearly as laconic, Scope of Services 7.3.2 requires each proposer to "outline a plan for implementation of the software and/or software updates." An understandably puzzled proposer asked, "Is this about conversion plan for [Respondent] or general software update plan as a whole?" Failing to seize upon the opportunity to elaborate on conversion requirements, in Addendum No. 1, Respondent replied only, "The intent was to form a conversion plan." In Scope of Services 6, Respondent abandons its reticence and describes the conversion responsibilities in reasonable detail. As noted above, Scope of Services 6 is Price Structure, which describes each of the four price components included in the Price Proposal Form or Price Proposal. In its proposed recommended order, Respondent argued that responsiveness requirements for the Technical Proposal may not be culled from the portion of the RFP detailing the Price Proposal. Given the failure of the remainder of the RFP to detail conversion requirements, Respondent's argument is burdened by the fact that, if the argument were to prevail, Respondent would be deprived of the only provisions anywhere in the RFP to enforce important conversion responsibilities undertaken by the ultimate vendor. But Respondent's argument finds no support in the RFP itself. Scope of Services 6.1 addresses model conversions as follows: It is the mission of the [FMTF] that every travel forecasting model in Florida operates from the same software platform. These models are validated to standards established by the [FMTF]. The Vendor is expected to convert these models to the selected platform such that the converted models are provided as validated models. A timeframe and conversion methodology is required. While conversions are not expected to precisely meet the outputs of the original model, they are required to meet validation standards consistent with guidelines established through National Cooperative Highway Research Program (NCHRP) Report 716 and other resources identified on the FSUTMSOOnline.net modeling website. Specific requirements will also include recoding ancillary modeling scripts into the selected platform or to a more common, standardized programming language such as Python. Updates to socioeconomic data inputs, local travel demand variables and network coding are not required through this RFP. The vendor must provide a cost estimate for the conversion of seven (7) 4-step models (Florida Statewide Model, Florida Turnpike Model, Northwest, Capital Region, Gainesville, DS, and D1); four (4) ABM [activity-based models) models (Southeast, Tampa Bay, Northeast and Treasure Coast); and two (2) training models. Scope of Services 6.1 not only informs proposers what they need to include in their cost projections for Model Conversions, but, in so doing, also informs them of their obligation to convert Respondent's Citilabs model, ten local models, and two training models. Except for Scope of Services 6.1, the requirements of the RFP, as distinct from the mission statements contained in Scope of Services 1, might be misinterpreted as specifications for the procurement for Respondent of a travel demand modeling software on a platform whose compatibility with the platform presently used by Respondent and platforms presently used by the MPOs and local agencies is irrelevant. Most importantly, Respondent's argument ignores Special Condition 21.1, which identifies the entire RFP as a source of mandatories. Without regard to Special Condition 21.1, Special Condition 22.2 lists Scope of Services 6 within the Technical Proposal, which, Respondent would concede, is an obvious source of mandatories. Scope of Services 6 is merely the fifth of six sections to be scored by the evaluator. Respondent's argument to disregard Scope of Services 6 as a source of mandatories is a misreading of the RFP. Intervenor's proposal, which refers to its traffic demand modeling software as "Visum," responds to Scope of Services 7.3.2 by proposing to convert Respondent's present Citilabs model, but not all of the models currently used by the MPOs and local agencies: We understand that successful model conversion only can be achieved through a collaborative relationship in between [sic] [Respondent] (and affiliated agencies), local consultants, and the software provider. Therefore, we propose a process that all three parties can contribute to this process and ensure all local modeling and software expertise can be fully utilized for this process. The overall conversion process is divided into four tasks below: Kick-off meeting with [Respondent's] Central office: First, we will work with [Respondent's] Central office to come up with a set of basic templates which will be applicable to four-step models as well as ABM models. In this way, we can come up with set standard that can be applied to all models that need to be converted and/or new models that need to be developed in the future. Details on model conversion schedule and prioritization of each model will be discussed and decided based on required model update (for LRTP) schedule and similarities of models. Kick-off meeting with [Respondent's] District office(s): Based on priority list provided from previous step, we will set up individual kick-off meetings with each district. We expect to meet with local model coordinators as well as local consultants with local modeling knowledge (up to two consultants selected by [Respondent]) to learn about the model that needs to be converted. This will give us a background on special features of the existing models, expected run-time, memory requirements and current shortcomings. All data and documentation necessary for model conversion should be provided at the meeting so that it can be reviewed by conversion team. At the end of the meeting, conversion team will come up with initial model conversion plan and shared [sic] with model coordinator and invited consultants. Basic Model Conversion: Basic components in the existing model will be converted to Visum by [Intervenor] at no additional cost. This conversion includes network (traffic and transit) conversion for the base year model, 4-step procedures, trip tables, and any special scripts used in the current model (to model trip adjustments, special assignments, skim averaging, etc.). In case of models integrated with third- party ABM, we will provide network (traffic and transit) conversion for the base year model, assignment and skimming procedures, and scripts necessary for the ABM interface on the Visum side (any modifications required for the ABM side, i.e., code within the ABM is beyond the scope of the basic conversion process). Once the basic model conversion is completed, we will host a hand-over meeting to the model coordinator and selected local consultant (e.g. on-call consultant). At the meeting, we will present the process that was undertaken and detailed information on new attributes, calculations and overall model operation. We will also provide model conversion report so that [Respondent] and consultants can use it to understand converted model. Model fine-tuning and final delivery: [Intervenor] will take the lead along with [Respondent] model coordinator (or selected consultant with local knowledge) on this final model fine-tuning process that includes calibration and validation of the 4-step models along with [Intervenor]. The calibration and validation will be conducted based on guidelines/standards provided on NCHRP Report 716. For the ABM interface, the local consultant is expected to re- write/modify the code with the ABM system in order to successfully interface it with Visum ([Intervenor] will provide full support on the Visum side required in this process.) As a software expert, [Intervenor] will support [Respondent] model coordinator (or selected consultant), local model expert, to complete fine-tuning and localization process and attend meetings (as necessary) to provide continuous feedback. By contrast, Petitioner's proposal responds to Scope of Services 7.3.2 with an unconditional undertaking to convert, not just Respondent's Citilabs model and local nonABMs, but also local ABMs: In this section, we present our approach to and time frame for the model conversions. Quite obviously model conversions are the principal obstacle to a successful transition to new travel demand modeling software. We will not be taking on this task from scratch, as we have already converted a number of current Florida models and, upon selection, would aggressively ramp up the model conversion efforts. No one has more experience in converting models from Citilabs software to another platform than we do, as we have been doing it for more than two decades. Recently we converted the NFTPO [North Florida Transportation Planning Organization] activity-based model to run on TransCAD. In the process, we improved the models in several respects. First, we replaced the stick road network with an accurate HERE network that was already licensed. We then recreated the transit network so that the buses run on the correct streets in the road network. In doing so, we also fixed errors in both networks. We also identified and fixed a variety of errors in the model scripts and significantly reduced the run times for both models. We also converted the statewide model and the Olympus training model as part of the aborted ITN process. [The "aborted ITN process" refers to an earlier, unsuccessful effort by Respondent to procure the subject software by an invitation to negotiate.] At the outset of the conversion process, we will meet with the stakeholders for each model to be converted to understand their priorities and preferences and to develop a mutually acceptable approach to the model conversion. We will welcome the participation of involved consultants as well as agency managers in these discussions. We will use templates for FSUTMS in TransCAD to facilitate the conversion process. These will consist of a standard flowchart interface and the identification of the specific macro functions to be used for trip generation, trip distribution, model choice, and assignment. Highly experienced staff will then perform the conversions and test the results to ensure a successful outcome. Significant discrepancies will be investigated and resolved in a technically proficient manner, consulting with agency representatives if errors are found that need to be corrected. Each and every conversion will ensure that similar results are obtained, may at the option of each model stakeholder have obvious scripting errors corrected, and will improve upon validation measures and run much faster than the current Cube version model. Each conversion will be accompanied by a technical memorandum detailed the conversion effort, changes made, and validation achieved. The conversion effort will be further strengthened and memorialized in the creation of standard scripts for FSUTMS in TransCAD, which will be published and shared with users statewide. We estimate that we will be able to complete all the conversions in a 6- to 12-month time frame. Based on our prior experience, we know that different agencies will have different timetables for this work, and we intend to work with [Respondent] and other model stakeholders to schedule the work effort to reflect these schedules and [Respondent] priorities. We will be mindful of the improvement and standardization opportunities afforded by the conversion effort and will work close with [Respondent] and MPO staff to incorporate some upgrades to the models as part of the process. Upon close analysis, the promise of kick-offs featured in Intervenor's proposal fade to a more prosaic element of the kicking game, as Intervenor fails to convert and punts its responsibilities to Respondent, local agencies, and even unspecified private consultants. In three ways, Intervenor's proposal comes up short as to conversion, so as to deprive Respondent of much of the benefit of the bargain that is the purpose of the procurement. First, Intervenor's proposal does not undertake the conversion of the four travel demand ABM models, which include the heavily populated areas of southeast Florida and Tampa Bay. Instead, Intervenor shifts the responsibility for converting the ABMs, so as to enable them to interface with Visum, to local consultants who are, in the RFP, third-party beneficiaries of the procurement, not the vendor or its subcontractors. Intervenor's unwillingness to convert the ABMs evidences the difficulty of converting this type of model, as borne out by Petitioner's proposal. Petitioner has considerable experience converting Citilabs' travel demand modeling software, so Petitioner's conversion of Respondent's Citilabs model, which Intervenor also has agreed to do, should not be difficult; the open-ended timeframe to which Petitioner committed for converting all of the models--6 to 12 months--likely reflects the difficulty of converting the ABMs, which Intervenor has expressly declined to do. Second, Intervenor fails adequately to describe exactly what it will undertake as to the conversion of ABMs. For these four models, including two with very large service bases, the last sentence of the above-quoted excerpt from Intervenor's proposal offers only Intervenor's support of the "localization" efforts of other parties. Failing to define "localization," Intervenor nonetheless has made it clear that it does not accept the RFP requirement that it convert the four ABMs. To this requirement, Intervenor has attached a condition that relieves Intervenor of the responsibility for the final step or steps necessary for local agencies' travel demand models, which will share the new platform of Respondent's software, actually to work. By so doing, Intervenor has declined unconditionally to assume the daunting tasks of calibration, in which each model is adjusted to force results that match real-world conditions, and validation, in which the model is tested by performing a model run for an historic period, for which the actual data is known, to confirm that the model's output compares favorably to actual results--although, as described in Scope of Services 6.1, quoted above, validation in this RFP also may mean the ability of the model to reproduce the outputs of the model that it is replacing. Third, Intervenor's proposal does not contain the required timeline for the conversion work that Intervenor has undertaken to perform. Intervenor has not imposed upon itself the required timeline for any of the 13 models required to be converted. The materiality of this omission is underscored by Petitioner's warning, "Quite obviously model conversions are the principal obstacle to a successful transition to new travel demand modeling software." Intervenor's nonresponsiveness to the conversion requirements in Scope of Services 6.1 and 7.3.2 confers upon Intervenor a competitive advantage. Conversion, calibration, and validation of the 13 travel demand models are time- consuming, expensive processes, which are at the core of the services for which Respondent is paying in this procurement, so that a proposal that incompletely undertakes these responsibilities confers upon the proposer a significant competitive advantage. Intervenor has also undermined Respondent's ability to enforce the contract in case of incomplete work by shifting to Respondent and private consultants the final stages of the conversion of the ABMs and omitting a timeframe within which to complete any of the 13 conversions. Access as a Co-Licensee for Universities in their Teaching Capacity and Affordable Access for Universities as Consultants and Private Consultants Petitioner argued in its proposed recommended order that Intervenor's proposal is nonresponsive due to inadequacies in its undertaking to provide access to the travel demand modeling software for universities and certain private modeling consultants. As the heading indicates, there are two distinct aspects to this challenge. Scope of Services 7.4 provides: While [Respondent] makes the modeling software available to other public agencies (and Universities acquire no-cost teaching licenses), selection of the software will consider the costs to private industry working in Florida. Private industries and Universities work in collaboration with [Respondent] and Florida's public agencies. It is important to ensure that these industries, particularly smaller firms, have affordable access to the selected software. In Addendum No. 1, Respondent responded to a vendor's question of how and where to present pricing information pertaining to the specifications contained in Scope of Services 7.4. Respondent replied: "Please present a price, a discount, or your approach as to how these entities will have affordable access to the selected software in section 7.4." Intervenor's proposal responds to Scope of Services 7.4 as follows: [Intervenor] has been providing a separate pricing structure for academic users. First, all academic users in Florida will get access to not only Visum licenses as a part of this contract but also, for each semester, they will be eligible for additional classroom licenses for up to 60 students per request. If they would like to acquire separate licenses, they will be eligible for academic pricing where we provide all four off-line software that [Intervenor] provides. For smaller firms in Florida, we will apply maximum multiple license discount (50%) from first license; however, we will require them to submit Florida DBE [Disadvantaged Business Enterprise] certification to ensure their eligibility. In addition, we will offer a lease-to-own option as well as making Visum license to be even more affordable to them. Leased licenses will be fully functional with an expiration date. Upon expiration, user will be able to choose whether they would like to purchase a license and the full amount that they have paid until then (within 1-year) will be applied as a credit toward their purchase. In this way, we can provide affordable access to users with smaller companies. Petitioner's proposal, which refers to its travel demand modeling software as "TransCAD" and its traffic simulator software as TransDNA and TransModeler, responds as follows: Our offer will actually lower the cost to Florida consultants and university researchers. Many, of course, already have our software and will not need to acquire additional licenses. For those that will need licenses, we will provide TransCAD free of charge, but expect that the normal annual support fee of $1,200 be paid up front to receive the software. We will limit this offer to two copies per consulting firm for use in Florida and for work performed for Florida public agencies. Similarly, we will offer one optional TransModeler license to Florida consultants and university researchers for work performed in Florida for free but with the normal annual support fee of $1,500 per year to be paid in advance. Intervenor's proposal is nonresponsive in two respects. First, Scope of Services 7.4 clearly identifies as co-licensees local public agencies and universities in their teaching capacity. This is consistent with Introduction 1, which, as noted above, alerts in boldface that Respondent is acquiring the software and license for itself, the MPOs, local agencies, and universities in their teaching capacity. The university's teaching of traffic demand modeling is not feasible if only the professor were to be entitled to a free copy of the software, which students would be required to purchase at a cost of tens of thousands of dollars per copy. Attaching an impermissible condition to the requirement to treat the university in its teaching capacity as a co-licensee, Intervenor's proposal limits the free student copies to 60 per semester and offers additional student copies at an unspecified academic discount. Thus, Intervenor's proposal is nonresponsive to Scope of Services 7.4 and the Introduction in its treatment of universities in their teaching capacity as a co-licensee. As to Scope of Services 7.4, Petitioner's proposal is also nonresponsive because it imposes substantial "annual support fees" on all "free" university licenses--even though the above-quoted Price Proposal Form clearly includes the price of the "Annual License Renewal" for three years. Additionally, Petitioner's proposal fails to provide any free copies of the software for students. Second, regardless of whether they are private entities or universities, consultants, who are not co-licensees, are assured by Scope of Services 7.4 affordable access to the software. This assurance does not impose much of a burden upon a proposer. As amplified by Respondent's response to the second question in Addendum No. 1, each proposal was required to "present a price, a discount, or your approach as to how these entities will have affordable access to the selected software in section 7.4." Contrary to Petitioner's contention, a discount without a price against which to apply the discount is facially sufficient, so Intervenor's proposal is responsive to this requirement. However, Intervenor's proposal is nonresponsive because Intervenor inexplicably failed to offer its vague promise of preferential pricing to the class of users to whom Scope of Services 7.4 assures affordable access. Rather than extend its discount to all private and university consultants, Intervenor's proposal limits its discount to private consultants that are certified as DBEs, which is likely a small fraction of private consultants and, of course, improperly ignores all universities in their capacity as consultants. Intervenor's nonresponsiveness to these requirements confers upon Intervenor a competitive advantage. The advantage from failing to treat the universities in their teaching capacity as co-licensees means that every dollar exacted from students or universities in their teaching capacity for the term of the RFP is unearned because Respondent has already paid for these licensing rights in this procurement. The advantage from extending a discount to a small fraction of the class of persons entitled to the discount means that Intervenor will improperly realize thousands of dollars on the sale of undiscounted software to consultants that are not DBEs. Scoring A. Introduction The evaluators were T. Hill, T. Corkery, and Tabatabee (respectively, Evaluator 1, Evaluator 2, and Evaluator 3). The evaluators were not trained in the RFP, and they did not communicate with each other while scoring the three proposals. The evaluators worked briskly, completing their evaluations within two weeks. Evaluator 1 has been Respondent's state modeling manager for the past five years and has prior experience with Respondent in transportation modeling in a district office. He has a total of 18 years' experience in transportation modeling. Evaluator 2 has been employed by Respondent for 25 years. He is presently a senior travel demand modeler, in which capacity he has served for ten years. Evaluator 2 previously served as a transportation modeler for Respondent. Prior to his employment with Respondent, Evaluator 2 worked as a travel demand modeling consultant for seven years. Evaluator 3 lacks experience in modeling, but instead is experienced in statistics and the development of Respondent's traffic data system, which supplies the data used for traffic modeling. As noted above, none of the evaluators lowered a score of Intervenor's proposal due to its nonresponsiveness, but neither did they lower a score of Petitioner's proposal due to its nonresponsiveness. In any event, these omissions have not rendered the scoring clearly erroneous. Oddly, Evaluator 3 may have lowered a score of Petitioner for complying with an RFP provision. Evaluator 3 testified that Petitioner improperly included a price within its Technical Proposal, even though, as noted above, Respondent instructed the proposers to do so in Addendum No. 1. However, this act has not rendered Evaluator 3's scoring clearly erroneous. In contrast to the clear, confident testimony of Evaluators 1 and 2, who demonstrated fluency with the RFP and reasonable familiarity with the proposals, the testimony of Evaluator 3 was often vague, sometimes confusing, and, at least once, as noted in the preceding paragraph, confused. Perhaps due to his unique expertise, Evaluator 3 was not as conversant as the other evaluators with the RFP or the proposals. But Evaluator 3's shortcomings do not render his scoring clearly erroneous, although it inspires less confidence than the scoring of Evaluators 1 and 2. In any event, Petitioner would have lost to Intervenor even if Evaluator 3's scores had been discarded. Averaging the scores of Evaluators 1 and 2, Intervenor outscored Petitioner on the Technical Proposal 86.875 to 83.125, so the addition of Intervenor's Price Proposal score of 3.69 and Petitioner's Price Proposal score of 5.33 would have yielded a final score of 90.565 for Intervenor and 88.455 for Petitioner. Moreover, the scoring of the two sections at issue-- Scope of Services 3 and 7--did not reveal that Evaluator 3 was much of an outlier. For Scope of Services 3, Evaluators 1 and 2 assigned a 4 to both proposals, and Evaluator 3 assigned a 3 to both proposals. For Scope of Services 7, Evaluator 3 assigned to each proposal the same score as one of the two other evaluators: for Intervenor's proposal, Evaluators 1 and 3 assigned a 4, and Evaluator 2 assigned a 3, and, for Petitioner's proposal, Evaluator 1 assigned a 4, and Evaluators 2 and 3 assigned a 3. Petitioner's evidence of clearly erroneous scoring takes two forms. First, Petitioner relies mostly on the testimony of its principal, who is extremely knowledgeable about travel demand modeling, but equally interested in the outcome of the case. Second, Petitioner relies on a few internal inconsistencies in scoring that are not so grave as to render the scoring clearly erroneous. Petitioner's task of proving clearly erroneous scoring was undermined by the strong testimony of Evaluators 1 and 2, the open-ended nature of the scoring criteria driving a single score for each section, and, for Scope of Services 7, the large number of unweighted subsections. It is a daunting task for a party challenging a proposed award in a highly technical procurement to set aside scoring as clearly erroneous without the testimony of at least one independent expert witness, who is well informed of the facts of the case. Scoring of Scope of Services 3: Network Scope of Services 3 comprises two subsections: True Shape Network--At a minimum, the vendor's software must efficiently accommodate true shape networks. Integrated Advanced Network Capabilities--Inefficiencies of contemporary modeling networks have made it challenging to share data among models and have led to duplication in data collection. This results in less than optimal model execution times and consequently reduced capacity to develop multiple scenarios efficiently. The vendor's software shall include access to integrated advanced networks and capabilities that promote a unified network platform for all travel demand models in the state and promote more efficient and flexible networks. These subsections generally ask each evaluator to assess how efficiently the proposed software accommodates true shape networks, which capture the actual geometry of roads rather than invariably representing them linearly as sticks, and the accessibility of the proposed software to integrated advanced networks and capability that promote a unified network platform for all travel demand models. The phrasing of these criteria introduces an element of flexibility in the scoring of the proposals under Scope of Services 3, although this section is much less open-ended than Scope of Services 7 and its myriad criteria. Evaluator 1 testified to no significant differences between the proposals of Intervenor and Petitioner in handling true shape networks and integrating advanced networks. Evaluator 2 testified that the proposals of Intervenor and Petitioner offered true shape networks and also did well in importing other map-based information on top of the road information, which evidences the integration of advanced network capabilities. This testimony is credited, and Petitioner has failed to prove that the scoring of Scope of Services 3 was clearly erroneous in favor of Intervenor's proposal. Scoring of Scope of Services 7: Other Considerations Scope of Services 7 comprises nine subsections: Support Needs and Integration with Other Florida Models Model Flexibility Implementation and Collaboration Private Industry and University Consideration Comprehensive Documentation Training Plan Consultant Support Consultant Work Experience Addressing Florida's Future Modeling Needs Three of these nine subsections have a total of seven subsubsections, so a total of 16 separate scoring criteria are found in Scope of Services 7, which, like other scoring sections, is ultimately assigned a single score of 1 through 4. For Scope of Services 7, Intervenor's proposal received an average of 22.92 points, and Petitioner's proposal received an average of 20.83 points. As noted above, Intervenor's proposal is nonresponsive to Scope of Services 7.3 and 7.4, although Petitioner's proposal is nonresponsive to Scope of Services 7.4. Intervenor's proposal also offers one year, not three years, of training, so as to earn a relatively low score on Scope of Services 7.6 and describes less work experience than that described in Petitioner's proposal. However, the open-endedness of Scope of Services 7 requires deference even to Evaluator 3's enthusiastic endorsement of Intervenor's proposal's response to Scope of Services 7.6 for its division of the state, for personnel training, by latitude, not longitude, exactly as Evaluator 3 does. Nothing in the RFP compels a specific weighting of the 16 scoring criteria in Scope of Services 7. Addressing this point in its proposed recommended order, Petitioner argued that for a score "to be true of the overall whole [section,] it must also be true of a fair number of its parts." The deferential standards discussed in the Conclusions of Law undermine this assertion by reducing a "fair number" to a very low number. Although Evaluators 1, 2, and 3 struggled to justify their scores for Intervenor's proposal as to Scope of Services 7, as compared to the explanations offered by Evaluators 1 and 2 as to Scope of Services 3, Petitioner failed to prove that their scores were clearly erroneous in favor of Intervenor's proposal.
Recommendation It is RECOMMENDED that the Department of Transportation enter a final order rejecting Intervenor's proposal as nonresponsive. DONE AND ENTERED this 20th day of April, 2018, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 20th day of April, 2018. COPIES FURNISHED: Douglas Dell Dolan, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 (eServed) Frederick John Springer, Esquire Elizabeth W. Neiberger, Esquire Bryant Miller Olive P.A. 101 North Monroe Street, Suite 900 Tallahassee, Florida 32301 (eServed) Bryan Duke, Esquire Messer Caparello, P.A. 2618 Centennial Place Tallahassee, Florida 32308 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 (eServed) Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 (eServed) Michael J. Dew, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450 (eServed)
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Patricia Ritter, has filed a claim against the bond for more than $299.00 alleging that Passport failed to perform on certain contracted services. On March 24, 1990, petitioner received an offer by telephone to purchase travel certificates entitling the holder to a five-day, four-night vacation package to the Bahamas plus two nights lodging in both Daytona Beach and Orlando, Florida. The offer was made by Uno Gold Card, a telemarketeer located in Atlanta, Georgia, and authorized to sell Passport's travel certificates. Before agreeing to purchase the certificates, petitioner was told that she could take the cruise at one time and use the Florida portion of her trip at a later date. She was never told that some dates were not available, or that other restrictions on travel might apply. Petitioner agreed to purchase the certificates and authorized a $299.00 charge on her credit card payable to Uno Gold Card. After receiving her travel certificates, which carried the name, address, and logo of Passport International Express, a ficticious name under which Passport was then operating, petitioner decided to use the Florida portion of her trip. She filled out one of the certificates requesting September 3 and 4, 1990, as the dates on which she wanted to begin her four-night stay in Florida. This was because she and her husband were traveling to Florida that week on their vacation and it was the only time period when she could use the certificate. She sent in a $50.00 deposit with her request. On June 28, 1990, respondent returned petitioner's $50.00 deposit and advised her that she "failed to leave the required amount of days between (her) requested travel dates," and thus her reservation could not be honored. She was told to resubmit her form within 21 days. Because petitioner was unable to travel on a different date to Florida, she could not use the certificate. When she contacted Passport for a refund of her money, Passport declined to refund her money and instead told her to contact Uno Gold Card. By now, however, Uno Gold Card was no longer in business. To date, petitioner has never received a refund of her money. Had petitioner been told to begin with that there were restrictions on how and when the certificates could be used, she would not have purchased them. But for this misrepresentation on the part of Passport's agent, the transaction would not have been consummated.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and she be paid $299.00 from the bond. DONE AND ENTERED this 12th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1994. COPIES FURNISHED: Patricia Ritter 154 Midvale Road Wampum, PA 16157 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, FL 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, FL 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, FL 32399-0810
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, H. Fleischer, has filed a claim against the bond for $648.95 alleging that Passport failed to perform on certain contracted services. On an undisclosed date in 1991, petitioner responded to a newspaper advertisement promoting a five-day, four-night cruise to the Bahamas for $99.00 per person. After calling a toll-free number, petitioner was told that in order to take the trip, he must purchase a video for $198.00 plus $11.95 postage, or a total of $209.95. Petitioner agreed to purchase the video in order to take advantage of the trip. The advertisement was being run by a telemarketeer in Tennessee who had been authorized to sell Passport's travel certificates. As such, it was acting as an agent on behalf of Passport. In June 1991, the assets and liabilities of Passport were assumed by Incentive Internationale Travel, Inc. (Incentive). Even so, any travel described in certificates sold after that date under the name of Passport was still protected by Passport's bond. Within seven days after receiving the video and other materials, which carried the name, address, logo and telephone number of Passport, petitioner returned the same to the telemarketeer along with a request for a refund of his money. When he did not receive a refund, he filed a complaint with the Department. In response to a Department inquiry, in December 1991 Incentive declined to issue a refund on the ground the video was purchased from a Tennessee firm, and not Passport, and Passport had never received any money from the telemarketeer. Incentive offered, however, to honor the travel certificate by allowing petitioner to purchase a trip to the Bahamas under the same terms and conditions as were previously offered. On July 6, 1992, petitioner accepted Incentive's offer and paid that firm $439.00 for additional accommodations, meals, fees and taxes. Shortly after July 24, 1992, petitioner received a letter from Incentive advising that his trip had been cancelled and that the firm had filed for bankruptcy protection. To date, petitioner has not received a refund of his money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and he be reimbursed $648.95 from the bond. DONE AND ENTERED this 13th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 13th day of December, 1994. COPIES FURNISHED: H. Fleischer 15 Wind Ridge Road North Caldwell, NJ 07006 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, FL 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, FL 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, FL 32399-0810
Findings Of Fact Petitioner was born in 1936. While on active duty in the United States Navy in 1955, he suffered an injury which subsequently led to the amputation of his left foot. When discharged from the Navy, his disability was rated by the Veterans Administration (VA) at 40 percent. Subsequent problems with the stump of the left leg, arthritis, and a spinal fusion led to VA disability increases, which disability rating at time of hearing was 100 percent. Petitioner applied for work with Delta Air Lines, Respondent, in 1966 and was employed as a reservations agent in Chicago. At this time his VA disability rating was 70 percent. In 1967 Petitioner, at his own request, was transferred by Respondent to Tampa, Florida. At this time Petitioner was able to move around the bay in which he worked with and without his crutches. In September 1979 Petitioner was hospitalized for stump revision and remained in an off-duty status until June 1980 when he returned to his position with Delta. At this time Petitioner carried out his duties as a reservation agent in a wheelchair. Following his return to work in 1981 Petitioner's performance of duty was marginal. Petitioner takes prescribed medication for pain. On one occasion the medication adversely affected his ability to perform his duties satisfactorily and he was told by his supervisor not to take medication at work. The doctor changed this prescription from 1-100 mg. daily to 4-25 mg. daily and Petitioner continued his medication as prescribed without further problems. On October 28, 1981, Petitioner was examined by Dr. Frazier, one of the physicians used by Delta for its employees. The purpose of this examination was to evaluate Petitioner's physical condition for continued employment. Report of this examination is contained in Exhibit 5 wherein Dr. Frazier concluded that Petitioner "has several progressive disabilitating diseases, that combined with his psychological state make him unemployable for Delta Air Lines. I would recommend because of his depression, amputation, hypertension, osteo-arthritis and spinal fusion problems that he be retired on disability." Respondent does not have a retirement for physical disability status. In lieu thereof it has short-term disability benefits and long-term disability benefits. Long-term disability benefits are calculated as a percentage of the employee's basic monthly salary less social security benefits the employee receives. Petitioner was in a long-term benefit status while recovering from stump revision in 1979-1980. Following Delta's receipt of the report of Dr. Frazier, Petitioner was sent home in a short-term disability status while the report was evaluated. Respondent subsequently advised Petitioner that he was qualified for sedentary work and directed him to return to his position with Delta Air Lines. Petitioner returned to work around June 1982 as a reservations agent. Fifteen or twenty reservation agents work in a "bay" where each has access to a telephone and computer terminal. These agents handle all reservation requests via telephone with no visual contact with the customers. They work an eight-hour shift with two 10 minute breaks and one-half hour off for lunch. While operating from his wheelchair, Petitioner usually took a station near the entrance to the bay which provided easier access for the wheelchair than a station farther down into the bay. He made no complaints about access to his station to Delta supervisory personnel. Reservation agents' telephone communications are monitored by supervisors on an intermittent basis to ensure the agent is carrying out his duties in a satisfactory manner and is providing proper information to the customers. In June 1972 Petitioner was placed on three months' probation. In September 1972 this probationary period was extended an additional three months. In July 1974 Petitioner was again placed on probation and given a "final chance" letter. In October 1977 he was given a letter for poor performance. Petitioner acknowledged that several times before 1982 he had been disciplined by Respondent but not fired. In December 1982 Charles Cortright, a retired architect, called the Tampa office of Delta Air Lines to get information on a flight to and from the West Coast interrupted with cruises while on the West Coast. Specifically, Cortright wanted to fly to Seattle, take a ferry trip to Alaska, perhaps two more sea cruises from West Coast ports, take a train from Seattle to San Francisco, and fly back to Tampa from San Francisco. He was referred to Petitioner, who quoted him a price of $278.00 on the air portion of this trip, but, since Petitioner did not think the cruises could be arranged by Delta, referred Cortright to a travel agency. Petitioner testified that he referred Cortright to three travel agencies located in the vicinity of Cortright's residence and did not specify the agency at which Petitioner's wife worked. Although Cortright testified that he was not referred to any one by name and did not know that Petitioner's wife worked at Tri-Cities Travel Agency, he went to Tri-Cities and his reservations were made by Malinda, who, in fact, was Petitioner's wife. It is likely that Cortright did not know that Malinda was Petitioner's wife, but it is believed that Cortright was told by Petitioner to ask for Malinda and he did so. When the airline tickets arrived at the travel agency, Cortright was advised by the agency the price of the air fare was $302.00. Cortright then, on December 14, 1982, called Delta and asked to speak to Petitioner to inquire about the difference in the fares quoted by Petitioner and the cost of the tickets at the travel agency, and to get the fare guaranteed that was quoted by Petitioner. At the time this call was received by another agent, Jennings King, King was being monitored by his supervisor, Carolyn Corvette. In this phone conversation Cortright said he had spoken to Petitioner two times before, that he went to the agency to which he had been directed by Petitioner, that he spoke to Malinda as directed by Petitioner, and that he was charged a higher fare than was quoted by Petitioner. Corvette had the call transferred to the customer service desk and authorized guarantee of the lower fare quoted. She promptly prepared a memo of the incident to Arthur Arden, Chief Reservation Supervisor (Exhibit 7). Arden called Cortright, who confirmed that Petitioner had directed him to Tri-Cities Travel Agency. Arden extracted from Delta's computer the reservation made for Cortright which disclosed the reservation was made by Malinda at Tri-Cities (Exhibit 8). Knowing that Malinda was Petitioner's wife, Arden, on December 15, told Petitioner that he was suspended from work and would be recommended for dismissal. On December 15, 1982, Arden signed a memo to Harry Dean, Delta's Regional Manager at Tampa, recommending that Petitioner be terminated (Exhibit 6). Dean concurred, sent the memo to Delta's Atlanta office, and Petitioner was fired. All reservation agent trainees are told that they should make every effort to arrange all of the transportation needs of the customers through Delta Air Lines, including tours requiring other modes of transport than air; and that they should never refer a customer to a specific travel agency. If a travel agency's services are needed by the customer, the customer should be referred to the yellow pages of the phone book to select a travel agency. This same information is contained in the Standard Practices Manual, which is available to all reservation agents. The reason for this rule is to eliminate, insofar as possible, conflicts of interest and to refrain from alienating some travel agents by appearing to favor other travel agents. This could create a serious problem for the air lines and is taken very seriously by air line company management. Petitioner's testimony that he did not refer Cortright to Tri-Cities Travel Agency and that he never referred a customer to a specific travel agency was rebutted by Betty Maseda, a fellow reservations agent who frequently sat alongside Petitioner at work and on several occasions overheard Petitioner giving specific instructions to customers on exactly how to get to Tri-Cities Travel Agency and to ask for Malinda. Ms. Maseda considers herself a good friend of Petitioner and did not volunteer this information to Respondent until after Petitioner had been fired.