The Issue Is Petitioner Amdahl Corporation (Amdahl) entitled to be awarded the computer contract under RFP 046-95REBID because the Department of Highway Safety and Motor Vehicles' (DHSMV's) decision to award this contract to Unisys Corporation (Unisys) was arbitrary, capricious, illegal or fraudulent?
Findings Of Fact On April 4, 1995, DHSMV released RFP 046-95-REBID, requesting proposals for a distributed server system. General Condition 8 of the RFP reserves to the state the right to waive any minor irregularity or technicality in proposals. Under the RFP's terms, each bidder was required to submit separately a technical proposal and a price proposal. The technical proposal was to contain a transmittal letter identifying the bidder and all subcontractors, including any subcontractors which the state had certified as minority business enterprises, (CMBE's) and the percentage of the total contract price allocated to CMBEs. Responsive proposals would be scored, in part, on CMBE participation. RFP Special Condition 6.1.4 provided that points would be awarded for participation by a CMBE. CMBE participation of more than 24 percent of the contract value would be awarded 50 points. Points would be prorated for a lower level of proposed CMBE participation, and if no CMBE participation was proposed, no points would be awarded in that category. Amdahl and Unisys both submitted proposals. DHSMV opened the technical proposals on May 2, 1995 and evaluated them for technical quality. After this evaluation, the separate price proposals were opened on May 4, 1995. Special Condition 3.27 provided that the agency could request clarification of the responses. The RFP conditions pertinent to the issue of CMBE participation are more specifically set out as follows: RFP General Condition paragraph 3 provides: ...A proposal may not be altered after opening of the price proposals... RFP Special Condition 5.3 provides: Proposals which for any reason are not timely received will not be considered. Late proposals will be declared non-responsive, and will not be scored. Unsealed and/or unsigned proposals by telegram, telephone or facsimile transmission or other means are not acceptable, and will be declared non-responsive and will not be scored. A proposal may not be altered after opening. RFP Special Condition 3.26.5 provides: EACH PROPOSAL SHALL BE A FIRM AND FINAL OFFER BY THE PROPOSER. PROPOSALS BASED UPON PROVISION OR ASSUMPTIONS OF SUBSEQUENT NEGOTIATIONS BETWEEN THE PROPOSER AND THE STATE AS TO THE EQUIPMENT, SOFTWARE, TERMS AND CONDITIONS SHALL BE REJECTED. (Emphasis in original.) RFP Special Condition 3.27 provides: The DHSMV reserves the right to contact any and all proposers concerning clarification of responses to this RFP. TECHNICAL DOCUMENTATION MAY BE REQUIRED AND REQUESTED WHEN EVALUATING THE RESPONSES SUBMITTED UNDER THIS RFP. THE PURPOSES OF THE TECHNICAL DOCUMENTATION IS TO VALIDATE COMPLIANCE OF THE PRODUCT(S) PROPOSED WITH APPLICABLE TECHNICAL REQUIREMENTS OF THE RFP AND TO ALLOW A TECHNICAL EVALUATION OF THE PRODUCT. (Emphasis in original.) RFP Special Condition 3.23, relating to CMBE participation, provides: Each Respondent must state...what percent- age of the total contract price will be spent with CMBE firms who will be supplying them. The CMBE participation claimed in the techni- cal proposal must be substantiated in the price proposal, or points assigned for unsubstantiated CMBE participation will be withdrawn... [O]nly certified State of Florida CMBEs will be considered in evaluating this portion of a Respondent's proposal. RFP Special Condition 5.7.1. provides: The [transmital] letter must identify any and all joint proposing firms and/or subcontractors. RFP Special Conditions 6.1.1 and 6.1.2 pertaining to the technical evaluation, discuss two items that will result in a finding of "unresponsiveness". Items 6.1.3 and 6.1.4 are listed after that and do not discuss "unresponsiveness." RFP 6.1.4 provides: In order to evaluate the Technical responses the following steps shall be followed: 4. Any minority business participation as defined in RFP Section 3.23. These points will be awarded as follows: CMBE participation of more than 24 percent (24 percent) of the total contract value, 50 points. CMBE participation of less than 24 percent (24 percent), but greater than zero, (proposed percentage divided by 24 times 50 points). Zero percentage (0 percent) CMBE participation, 0 points. These points shall become "Total 6.1.4." RFP Special Condition paragraph 3.1 provides: MANDATORY REQUIREMENTS: The Department has established certain mandatory requirements which must be included as part of any proposal. The use of the terms "shall", "must", or "will" (except to indicate simple futurity) in this RFP indicates a mandatory requirement or condition. The words "should", "prefers", or "may" in this RFP indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature will not itself cause rejection of a proposal. (i) RFP Special Condition paragraph 3.2 provides: NON-RESPONSIVE PROPOSALS, NON-RESPONSIBLE RESPONDENTS: Proposals which do not meet all requirements of this RFP or which fail to provide all required information, documents, or materials will be rejected as non-responsive. MATERIAL REQUIREMENTS OF THE RFP ARE THOSE SET FORTH AS MANDATORY OR WITHOUT WHICH AN ADEQUATE ANALYSIS AND COMPARISON OF PROPOSALS ARE IMPOSSIBLE, OR THOSE WHICH AFFECT THE COMPETITIVENESS OF PROPOSALS OR THE COST TO THE STATE. Respondents whose proposals, past performance or current status do not reflect the capability, integrity or reliability to fully and in good faith perform the require- ments of the Contract may be rejected as non- responsive. The Department reserves the right to determine which proposals meet the material requirements of the RFP, and which respondents are responsible. (Emphasis supplied). When the price proposals were opened, the agency initially found it was unable to determine the exact nature and price allocation for CMBE participation for four bidders' technical and price proposals, so the agency requested written clarification from all four, including Amdahl and Unisys. The agency's purpose in requesting these clarifications was to equate the dollar amount being spent by each proposer on CMBEs with the proposer's total contract price so that the agency could verify that CMBE participation met the claimed percentages of the total amount of the proposal. Unisys responded by letter through facsimile transmission on May 4, 1995 that its primary CMBE participation would come from Coastal Consulting, Inc., (Coastal) which would deliver the Unisys hardware and software described in Unisys' price proposal. Coastal would provide the primary CMBE participation, but Computer Academy, Inc. was also a CMBE which would provide a lesser percentage of participation in another category. Unisys then submitted a further clarification by letter through facsimile transmission, also on May 4, 1995. This letter designated the exact dollar amounts assigned to each of these components and again specified Coastal would provide hardware and software. The total amount for these products was $878,629, approximately 30 percent of the total contract price. DHSMV accepted this documentation and awarded Unisys' proposal the maximum 50 points for CMBE participation above 24 percent as allocated by the RFP. DHSMV also asked Amdahl to clarify dollar amounts it had assigned to CMBE participation. By a May 4, 1995 letter, Amdahl also set out the exact amount of contract funds to be paid to the CMBE designated in its proposal. The agency accepted Amdahl's documentation and awarded Amdahl the maximum 50 points for CMBE participation provided in the RFP. The agency considered Unisys to be a responsive bidder. Unisys' bid received the highest technical score of 588 points. Its total price bid was $2,445,012.90. The agency considered Amdahl to be a responsive bidder. Amdahl received the second highest technical score of 557.6901. Its total price bid was $2,647,057.00. Specifically, the agency evaluated the bids as follows: Price Technical CMBE Participation Total (max. 500 pts.) (max. 80 pts.) (max. 50 pts.) Unisys: 500.0000 38 50 588.0000 Amdahl: 472.6901 35 50 557.6901 Later that same day, May 4, 1995, DHSMV posted a notice that Unisys had been selected as the bidder for benchmarking. The benchmarking process involves a trial run of the tentatively successful bidder's equipment and services. If the systems perform to expected standards, agency staff recommend that the benchmarking bidder's proposal be accepted and the contract awarded to that bidder. After the bids were opened, scored, and the results announced, an Amdahl representative telephoned DHSMV Chief of General Services, Russ Rothman, and suggested that Coastal was not state-certified as a CMBE to provide hardware and software. Mr. Rothman then spoke to Marsha Nims of the Minority Business Enterprise Advocacy and Assistance Office for the State of Florida. She advised him that, indeed, Coastal was not state-certified to provide hardware and software, but was certified to provide consulting services. She also told him that if DHSMV awarded its contract to Unisys with Coastal as Unisys' qualifying CMBE in the wrong category, her office would not credit DHSMV with points toward DHSMV's minority participation goal. The RFP did not say in so many words that in order for the bid proposer to receive points from DHSMV for CMBE participation, the CMBE subcontractor would have to be approved by Ms. Nims' office in the particular category for which the subcontractor was proposed. That requirement was inherent in the RFP requirement that the minority subcontractors be certified by the State in the first place. See, RFP 3.23. No reasonable person could interpret the RFP language to mean that DHSMV wanted proposers to utilize MBEs certified for services different from the services they were scheduled to perform as subcontractors. Although DHSMV witnesses testified that DHSMV has no interest in the type of work to be performed by the CMBE or who the CMBE is as long as the prime contractor/proposer spends the proper amounts of money on CMBEs, it is abundantly clear that failure to attain credit for minority participation can diminish DHSMV's compliance with State minority goals and offends the State policy to encourage minority participation in State contracting. The very fact that the agency cared enough to include a CMBE requirement in its RFP is sufficient proof that CMBE compliance mattered to the agency. After speaking with Ms. Nims, Mr. Rothman did not disqualify Unisys or subtract points for Unisys' designation of Coastal as one of its minority subcontractors. He telephoned Rick Johnston of Unisys and explained that the State MBE certification office would not count Coastal's participation toward DHSMV's MBE goal if Coastal were used by Unisys to provide hardware and software as set out in Unisys' proposal. On May 8, 1995, Unisys transmitted a letter to DHSMV to the effect that Unisys would restructure its proposal so that Unisys would provide the hardware and software and would utilize Coastal to provide necessary support services. To do this, Unisys proposed to subcontract with Coastal rather than supply eleven of its own full-time employees to provide consulting services to DHSMV as originally set out in Unisys' proposal which had resulted in the agency awarding benchmarking status to Unisys. Neither the total contract price nor "over 24 percent" level of CMBE participation changed under the proposal as restructured by Unisys after all proposals were opened and after the intent to award on the basis of Unisys' original proposal was posted, but clearly, the proposal was more than a "further clarification." Unisys' proposal was materially altered after opening and award despite agency witnesses' testimony to the contrary. The RFP only provides for scoring "any" CMBE participation, large or small. See, RFP 6.1.4. A proposer was free to offer zero CMBE participation and receive zero points in that category while still being considered responsive on the mandatory technical components. However, the fact that the RFP does not make CMBE compliance a mandatory requirement so as to affect a proposer's threshold responsiveness does not automatically render such a "second-look" alteration an "immaterial" change. The change in this case affects the competitiveness of proposals. See RFP 3.2. DHSMV improperly treated Unisys' revision as only a minor change and did not disallow any CMBE points. It continued to work with Unisys to schedule the benchmark. If DHSMV had rejected Unisys' revised proposal, as Amdahl contends it should have, Unisys' proposal would not have received the 50 maximum points for CMBE participation, due to the disqualification of Coastal. Instead, Unisys would have been given at most 6.19 CMBE participation points for a second CMBE subcontractor, Computer Academy, Inc., included in its original proposal to provide training at $69,500. Unisys' total score then would have been 544.19, or about 13.5 points below Amdahl's score of 557.6901. Assuming no changes were made to Amdahl's score, if the agency had deducted points assigned Unisys for Coastal's participation as a CMBE when it discovered Coastal was not appropriately certified to provide the products specified in Unisys' original proposal, Amdahl would have been permitted to benchmark in Unisys' place. It is axiomatic that this constituted an unfair economic advantage to Unisys. The benchmark was originally scheduled to take place June 2-5, 1995, with evaluation and approval on June 6, 1995, but the benchmark was rescheduled several times. In the interim, on October 11, 1995, Unisys notified DHSMV that Coastal had withdrawn from any participation in the RFP as of August 28, 1995. The letter provided that CMBE Computers and Technical Services, Inc. (CTS) now would fulfill both the training and equipment requirements of the contract. CTS is a successor company to Computer Academy, Inc. Apparently, Computer Academy, Inc. was a CMBE for training purposes on May 4, 1995, the date of scoring and posting the award. The record is unclear as to Computer Academy's status during benchmarking or at the present time. CTS was not in existence as of May 4, 1995. CTS was not even incorporated until September 25, 1995. CTS was not certified as a CMBE in computer hardware and software until September 29, 1995, well after the date for submittal of RFP proposals and well after opening, scoring, and award of benchmarking status to Unisys. CTS did not reach its agreement with Unisys until October 4, 1995. Due to the withdrawal of Coastal and the delay in subcontracting with CTS, Unisys had no qualified CMBE in place as originally bid between August 28 and October 4, 1995. This period also encompassed the period of benchmarking. The benchmarking ultimately was successfully completed by Unisys on October 18, 1995. On October 19, 1995, Unisys informed DHSMV that CTS would be supplying hardware and software in the amount of $878,629, or 36 percent of the total contract price. The substitution of CTS for Coastal and Computer Academy under the circumstances of this case constituted yet another material alteration of Unisys' proposal after award. RFP Special Condition paragraph 4.5 provides: 4.5 RAID DISK SUBSYSTEM: The DHSMV prefers Redundant Array of Independent Disk (RAID) technology, and will award additional evaluation points for devices proposed and included in ATTACHMENT-C that support RAID levels 0, 1, 3, 5 on all proposed platforms. RAID is not a mandatory requirement. While a "preferred" and not a "mandatory" requirement for base-line responsiveness purposes, the RAID requirement at RFP 4.5 was clearly material because without it, an adequate analysis and comparison of proposals was impossible, and its inclusion or exclusion affected competitiveness of proposals. See, RFP 3.2. RAID is an acronym for Redundant Array of Inexpensive Disks. RAID technology permits computer users to store large amounts of information on inexpensive hardware devices. The different levels of RAID refer to techniques used to make use of the inexpensive disk devices to store and retrieve pyramidal data, so as to reconstruct data in the event that a disk in their array of disks fails, thereby preventing loss of data and continuity of operation. The agency wanted the four RAID levels it had specified in the RFP so as to protect the driver's license and motor vehicle data collected by the agency statewide. Amdahl proposed to provide the required RAID levels through a subcontractor known as Sun Micro Systems Computer Company (Sun). The RFP permitted bidders to submit written questions prior to submitting proposals. The questions and answers were made a part of the RFP by Addendum number 1. The following question and answer related to the requirements for obtaining the 20 bonus points for offering RAID capability: RAID Disk Subsystem, Page 30 The requirement for RAID 0, 1, 3, and 5 at the hardware level appears to have been deleted. Can RAID now be provided by soft- ware to qualify for the RAID points? No. RAID levels 0, 1, 3, and 5 can not be provided by software. DHSMV intended RFP 4.5 and the foregoing question and answer to mean that RAID could not be provided on a system that would run on software/the host computer. The question and answer show on their face that DHSMV would not accept RAID levels 0, 1, 3, and 5 if provided by software. The greater weight of the credible evidence is that any person knowledgeable in the industry would have known that by prohibiting RAID from being provided at the software level, RAID would have to be run on a separate, independent dedicated controller, not the host computer. DHSMV included the requirement that RAID could not be provided at the software level because it did not want to have the capacity of its host computer burdened with running the RAID system. Despite the foregoing clarifying question and answer, Amdahl's witnesses interpreted the RFP to merely prohibit providing RAID solely through software. Amdahl requested no further clarification and did not protest the specification as interpreted by the question and the agency's answer. Rather, it proceeded on its own interpretation and submitted Amdahl's RFP proposal. Unisys asserted that Sun could not provide RAID Level 3 capabilities under any circumstances, but the evidence to that effect was not persuasive. The expert testimony in support of this theory was contradictory in parts, and much of it was based on old or incomplete sources. Marketing information in the computer field is notoriously quick to go out of date, and no completeness of investigation was established. While experts may, and often do, form their opinions in whole or in part upon hearsay, unsubstantiated hearsay as the basis of expert opinion undermines the competency of experts who rely on it. Therefore, no finding is made with regard to Unisys' contention that Sun cannot deliver RAID 3 by any means. However, it is not disputed that the Sun RAID system proposed by Amdahl to DHSMV in this case clearly involves both hardware and software in combination, is dependent on the host computer, and would not be provided through an independent dedicated controller. Therefore, Amdahl's proposal encompassing the Sun RAID configuration did not meet the RFP's RAID specifications. Simply because Amdahl's response binds it to provide RAID 0, 1, 3, and 5 levels does not meet the DHSMV specification if there has never been a meeting of minds on what was offered and accepted. The assertion that any proposer can be held liable for breach of contract if it does not deliver what is promised is an empty and costly safety net under such circumstances. Amdahl was not entitled to those additional 20 points originally assigned its proposal on that basis. Without the 20 bonus points for providing RAID, Amdahl's score for its response to the RFP would be lower than Unisys' score even after 50 points for CMBE participation is subtracted from Unisys' score. The spread would be as follows: Unisys: 588 minus 43.81 (if only Coastal's disqualification were considered) = 544.19; or 588 minus 50.00 (if Computer Academy's participation on May 4, 1995 is no longer considered) = 538.00. Amdahl: 557.6901 - 20 = 537.6901.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order awarding RFP 046-95REBID to Unisys Corporation and dismissing Amdahl Corporation's Petition herein. RECOMMENDED this 29th day of January, 1996, in Tallahassee, Florida. ELLA JANE P. DAVIS, 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 29th day of Janaury, 1996. APPENDIX TO RECOMMENDED ORDER 95-5382BID The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner Amdahl's PFOF: 1-5, there are two fives; 6, the first 7, 8-13, 19-20, 26-29, 31, 34 Accepted in substance except that unnecessary, subordinate, and/or cumulative material has not been adopted. The second 7, 14, 21-25, 30, 33 Rejected because as stated they are legal argumentation, preliminary matters, or conclusions of law, but covered. 32, 35 Contrary to the facts as found upon the greater weight of the credible competent evidence or there is insufficient evidence to reach this determination. 15-18 Rejected as subordinate to the facts as found. Respondent DHSMV's PFOF: 1-4, 7-13, 17-25, 28-33 Accepted in substance except that unnecessary, subordinate, and/or cumulative material has not been adopted. 5-6, 34 Rejected as legal argumentation or a misleading statement contrary to the facts as found. 14 Accepted as restated to better explain the agency's initial concern with CMBE compliance and why it required the clarification be made in dollar amounts instead of percentages. 15-16 Contrary to the facts as found upon the greater weight of the credible competent evidence. However this isolated testimony has been covered within the Recommended Order's finding of fact. 26-27 Covered with preliminary matters. Intervenor Unisys' PFOF: 1-3, 5-19, 21-29, 37, 43-48, 51-54 Accepted in substance except that unnecessary, subordinate, or cumulative material has not been adopted. Interspersed legal argumenta- tion or is likewise rejected. 4, 20, 30-31, 36 Rejected as legal argumentation or a misleading statement which does not fully explain the issue. However, the issues are covered within the Recommended Order 34, 38, 40-42 Rejected as legal argumentation, a preliminary matter, or conclusion of law. 35, 49-50 Legal argumentation; mere quotation of isolated testimony; Contrary to the facts as found upon the greater weight of the credible competent evidence; or there is insufficient evidence to reach this determination. 32, 39 Accepted as restated to better explain the agency's initial concern with CMBE compliance why it required the clarification be made in dollar amounts instead of percentages. 33 Accepted that the May 4 clarification of Amdahl and Unisys did not materially alter their proposals. These became part of the proposals. Alterations after award of benchmarking status were a different matter as discussed in the Recommended Order. COPIES FURNISHED: Julie Gallagher, Esquire Post Office Box 10948 Tallahassee, Florida 32302 Karen Zucker, Esquire c/o Amdahl Corporation Chevy Chase Pavilion 5335 Wisconsin Avenue NW Washington, DC 20015 Michael Alderman, Esquire Judson Chapman, Esquire Enoch J. Whitney, Esquire Department of Highway Safety & Motor Vehicles Neil Kirkman Building, A-432 Tallahassee, Florida 32399-0504 Mary Piccard, Esquire Robert Vezina, Esquire Post Office Box 589 Tallahassee, Florida 32302-0589 Charles J. Brantley, Director Division of Motor Vehicles Room B439, Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch J. Whitney, Esquire Department of Highway Safety & Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
The Issue The issues to be resolved in this proceeding are delineated with particularity in the Joint Pre-hearing Stipulation executed by all parties; however, the issues generally are as follows: Whether Experior has standing to challenge the RFP Process. Whether Promissor was a qualified or responsive proposer. Whether Experior's cost proposal was entitled to the maximum points if Promissor's proposal is determined to be unqualified or non-responsive. Whether the scoring of the proposals by Evaluator three was affected by his bias or was so aberrant as to be unsupportable or illogical or in violation of the RFP. Whether DBPR's award of MBE/WBE preference points to Experior and PSI was inappropriate and should be eliminated. Whether Experior suffered an unfair competitive disadvantage.
Findings Of Fact The Department first decided to seek proposals for computer-based testing (CBT) services on March 29, 2002, when it issued RFP 01-02-001. General Condition Number Seventeen of that RFP stated that any material submitted in response to the Request for Proposal will become a public document pursuant to Section 119.07, including any material which a responding proposer might consider confidential or a trade secret. Any claim of confidentiality was waived upon submission. Experior never protested that General Condition Number Seventeen in that first RFP. The cost proposals submitted by all proposers in response to that first RFP became public record after the Department posted the notice of intent to award the contract to Experior on September 17, 2002. Promissor and PSI filed notices of intent to protest and formal written protests. In response to those protests, however, the Department decided to reject all proposals. Experior then challenged the rejection of all proposals by filing a notice of intent to protest on October 24, 2002, but ultimately withdrew that protest on October 31, 2002. Thereafter on January 13, 2003, the Department issued requests for proposal RFP 02-03-005 (the RFP), seeking proposals for the provision of computer-based testing services for several professions regulated by the Department. That is the RFP with which this case is concerned. Questions arose by potential vendors at a Pre-Proposal Conference, which was held on January 21, 2003. Representatives of the Department, Experior, Promissor, and PSI attended. Amendment One to the RFP grew out of that conference and was issued on February 3, 2003. This amendment contained the written questions and the Department's answers and the minutes of the Pre-Proposal Conference. The Department appointed certain employees to serve on the evaluation committee. The employees who were appointed were Karen Campbell-Everett; Steven Allen; Mollie Shepard; Alan Lewis; Milan Chepko (alternate) and Joe Muffoletto (alternate). Additionally, Department employee Valerie Highsmith was appointed to evaluate proposer references. Ultimately, alternate evaluator Joe Muffoletto replaced evaluator Steven Allen due to the death of Mr. Allen's father. Amendment One to the RFP then identified the evaluators and informed all proposers that the educational and professional background of each evaluator could be obtained by making a public records request. The protest filed by Experior alleges that evaluator Joe Muffoletto was not appropriately qualified. Experior did not file a challenge to the evaluators within 72 hours after they were identified in RFP Amendment One. Realistically this would have been difficult to do unless they already knew what the objections to qualifications might be, since Amendment One, in identifying the evaluators, informed the proposers that they would need to make a public records request to obtain the educational and professional background of each evaluator. In any event, preponderant evidence shows that Mr. Muffoletto's experience is sufficient to constitute "experience and knowledge in program areas and service requirements" for the CBT contract within the meaning of Section 287.057(17)(a) (which only requires that evaluators "collectively" have such experience). Mr. Muffoletto has a bachelor's degree, with a major in English and a minor in psychology. He holds a master of science degree in education and master of arts degree in multi- disciplinary studies and has completed the graduate level course called "assessment of learning outcomes" at Florida State University. Before working for DBPR, in 1996, he was a junior high and high school English teacher for 30 years. He has worked as a computer trainer for students taking the New York State Regents Competency Exam. In 1996-1997 he was an OPS test editor with DBPR and from 1997 to 1999 worked for the Florida Department of Education as a coordinator of test development, where he trained consultants on how to write test items, review test items, and amend test content outlines and blue prints. While in that position, he also wrote an RFP and developed a set of exams. Since 1999 he has been a psychometrician with DBPR and currently develops computed-based examinations for landscape architects and auctioneers and regular examinations for electrical contractors. Promissor, Experior and PSI each submitted responses to the second RFP. The technical proposals were distributed to members of the evaluation committee for review sometime after a standardization session for evaluators was conducted on February 11, 2003. The members of the evaluation committee separately conducted an analysis of each proposal and awarded points based on their review. Each evaluator submitted his or her completed technical evaluation guides or score sheets to Lyra Erath, who then forwarded the score sheets to the lead evaluator, Molly Shepard. The evaluation of the proposer references was completed by Valerie Highsmith and her score sheets for such evaluations were submitted to Bobby Paulk. On February 27, 2003, the Department opened the cost proposals, which reflected the following prices proposed per hour: Promissor: $9.00; Experior: $10.50; PSI: $11.35; and NCS Pearson: $14.75. The score for each cost proposal was calculated in accordance with a mathematical formula set out in the RFP. Promissor proposed the lowest cost and thus received the maximum cost score of 175 points. Experior received 150 points, PSI 138.77 points, and NCS Pearson 106.79 points. Upon concluding the evaluation process established by the RFP, Promissor's proposal was ranked first with 490.08 points out of a maximum available 555 points. PSI was second place, being awarded 461.40; Experior was awarded 440.03 points and NCS Pearson, 305.16 points. The bid/proposal tabulation was posted by the Department on March 12, 2003. Therein it indicated its intent to award the contract for CBT Services to Promissor. On March 17, 2003, Experior and PSI filed notices of intent to protest the intended award to Promissor. Experior thereafter timely filed a formal written protest, although PSI did not. ISSUES TO BE RESOLVED The Time Period for Contract Implementation Experior's protest alleges that the time period for contract implementation was allegedly "too aggressive" (short). The RFP however, repeatedly notified all proposers that they would waive any protest of the terms and specifications of the RFP unless they filed such protest within 72 hours of receiving notice of the specifications, as provided in Section 120.57(3). Similarly, RFP Amendment One informed the proposers that the RFP was amended to include "changes and additions" and that failure to file a protest within the time specified in Section 120.57(3) would constitute a wavier of Chapter 120 proceedings. RFP Section V, states "A. DBPR estimates that the contract for the RFP will be effective on or about March 17, 2003, and the testing services begin May 19, 2003." The 30- day periods the protest claims were "too aggressive" (i.e. too short) were specifically disclosed in RFP Section X concerning "scope of services." The time period of which Experior now complains was apparent on the face of the RFP. Indeed, when Experior's personnel first read the RFP, they had a concern that the time period might give Promissor a competitive advantage. At the Pre-Proposal Conference on January 21, 2003, Mark Caulfield of Experior even expressed concern that the 60 days allowed for implementation was a very aggressive schedule and asked the Department to reconsider that time period. The concern over the implementation schedule was documented in written questions which DBPR answered in Amendment One, telling all proposers that the implementation schedule was fair, in its view, and would not be changed. Experior did not protest the RFP's implementation time period within 72 hours of first reading the RFP and never filed a protest to any term, condition or specification of RFP Amendment One, including the Department's notice that it felt that the implementation schedule was fair and that it would not be amended. Thus, any challenge to the implementation schedule was waived. Even had Experior not waived its challenge to the implementation schedule, there is no persuasive evidence that the schedule would give Promissor an unfair competitive advantage over Experior and PSI. The DBPR tests are already finalized and would simply have been transferred to a new vendor if a new vendor had been awarded the CBT Services Contract. Experior failed to adduce persuasive evidence to show that any proposer was advantaged or disadvantaged by the implementation schedule which applied to all proposers. Evaluation of the MWBE Submittals RFP Section XIV.Q. encouraged minority and women-owned businesses (MWBE) to provide work goods, or services associated with services contemplated by the RFP. Proposers were to be awarded additional points for committing to use MWBEs, based on the percentage of the business under the contract the MWBE would perform. Experior, Promissor and PSI each proposed to use MWBEs to supply goods or services needed to perform the CBT contract. Promissor indicated that it would use one MWBE for 30 percent of the contract value. Resultingly, the Department awarded Promissor 16.5 MWBE preference points (30 percent x 55 maximum points). Experior presented no persuasive evidence showing how the Department interpreted and applied the MWBE provisions of the RFP or showing that the Department acted in excess of its authority in determining the award of MWBE points, as described in Amendment One. Experior offered no evidence concerning whether the Department considered or applied the "two subcontractor" limitation in RFP Section VI.5 ("no more than two subcontractors may be used") when it evaluated the Experior and PSI MWBE proposals, nor how it applied that limitation. Experior and PSI both indicated they would use three MWBE vendors. Experior proposed to use JR Printers (Printing Services); Colamco, Inc. (computer equipment for testing centers); and Workplace Solutions, Inc. (furniture for testing centers). (Furniture is a commodity, not a service.) PSI proposed to use Victoria and Associates (staffing services); Franklin's Printing (printing/mailing services); and National Relocation Services, Inc. (furniture, computers, delivery and installation [commodities, not services]). Based on the proposals, the Department awarded Experior 7.15 points and awarded PSI 17.48 points. Although Experior claims that it and PSI each exceeded the two subcontractor limitation by proposing to use three MWBEs, RFP Section XIV.Q. did not specifically require that proposed MWBEs be subcontractors, but rather only required that MWBEs be utilized by the primary vendor (contractor) to provide work, goods or services. Thus a vendor of goods or a supplier of services could qualify as an MWBE (and, implicitly, not necessarily be a subcontractor). Experior did not prove that any of the MWBEs proposed by PSI or Experior were actually subcontractors on an ongoing basis. The parties stipulated that the companies that each proposed to use were vendors. Moreover, when questioned about the provisions of Section VI regarding sub- contracting of services under the RFP, Jerome Andrews, chief of purchasing and human resources, differentiated the purchase of services from the purchase of commodities as being defined by statute. (See Sections 287.012(4) and 287.012(7).) Experior did not explain or offer persuasive evidence relating to its allegation that PSI's proposal for MWBE services was misleading. Experior did not show that PSI's MWBE proposal did not conform to the RFP requirements or, if there were a defect, how many points, if any, should be subtracted from PSI's total. Moreover, to the extent that Experior claims that the proposal was defective because PSI's proposed suppliers would not provide services over the course of the entire contract, Experior's proposal suffers the same defect, as Experior's proposal admits that "[c]omputer equipment and furniture services will be performed during the implementation phase of the contract." Thus, if PSI's MWBE point award had to be reduced, so would Experior's. Experior fail to carry its burden to show any error in the scoring of the PSI MWBE proposal. It did not establish that these vendors were subcontractors and thus did not establish that the relevant vendors were of a number to exceed the subcontractor limitation in the RFP. It did not persuasively establish that such would have been a material defect, if it had been exceeded. Completion of Evaluation Sheets Some of the RFP's evaluation criteria identified the number of points available and state that such points would be "awarded as a whole and not broken down by sub-sections." In contrast, the remainder of the evaluation criteria simply stated that a specific number of points was available for each specified criterion. In each instance where the evaluation criteria stated that points are "awarded as a whole and not broken down by subsections," the corresponding section of the RFP was broken down into two or more subsections. In each instance where the evaluation criteria simply listed the number of points available, the corresponding section of the RFP was not broken down into subsections. Experior alleged that the evaluators did not properly score Experior's proposal in instances where the evaluation sheet indicated "points are to be awarded as a whole and not broken down by subsections." Experior offered no proof regarding how the Department interpreted that provision or the manner in which the scoring was actually conducted, however. The score sheets reflect that the evaluators actually did award points "as a whole," not broken down by subsections, for those evaluation criteria where that was required. The record does not support any finding that the Department or its evaluators violated the requirements of the RFP, Department policy or controlling law and rules in this regard. Issue of Bias on the Part of Evaluator Three Experior contends that Evaluator Three, Mr. Muffoletto, was biased against Experior. The persuasive evidence does not support that allegation. During his employment with the Department, Mr. Muffoletto interacted with Experior on one occasion regarding reciprocity of an out-of-state examination. This experience left him with the impression that Experior was "proprietary" because it was protective of the content of its examinations. The evidence did not show he had any other impressions, positive or negative, concerning Experior or misgivings about Experior being selected in the first RFP. The mere fact that his total score for Experior was lower than those awarded by other evaluators does not establish bias or irrationality in scoring. The evidence shows that Mr. Muffoletto scored the proposals in a rational manner. He appeared to evaluate criteria comparatively and gave a proposer more points if that proposer was more convincing than another on a particular criteria or point of evaluation. He gave lower scores when the proposer simply copied the text of the RFP and then stated that the proposer would meet or exceed the criteria; in accordance with instructions that evaluators could give lower scores in such cases, so long as the scoring was consistent between proposals. Mr. Muffoletto gave higher scores when the proposers gave more individualized responses, provided more thorough statistics and ways to interpret those statistics, gave numerous specific examples and had a more attractive presentation. Even if Mr. Muffoletto had been biased, it has not been persuasively shown that such would have a material impact on the outcome of the evaluation. If the scores of Evaluator Three were completely eliminated for both PSI and Experior, which is not justified, PSI's point total would be 459.12 and Experior's point total would be 453.54. If Evaluator Three were deemed to give Experior scores equivalent to the highest scores awarded to Experior by any other evaluator, PSI's total would be 461.42 and Experior's point total would be 458.87. Even if Evaluator Three had given Experior the maximum points for each criterion, PSI's point total would have been 461.42 and Experior's point total would have 461.12. Issue of Prior Knowledge of Experior's Prior Cost Proposal Experior contends that Promissor's knowledge of Experior's cost proposal submitted in response to the first RFP in 2002 gave Promissor an unfair competitive advantage. Experior waived that challenge, however, when it withdrew its protest to the rejection of all bids submitted in response to the first RFP. Experior knew when it filed and withdrew its protest to the first RFP decision that all cost proposals had become public record and so it was incumbent on Experior to have challenged the issuance of a second RFP, if it had a legal and factual basis to do so. At the latest, Experior should have challenged the second RFP specifications when issued (within 72 hours) as Experior had already obtained the other proposers' cost proposals and so it knew then that the prior cost proposals were available to all for review. Even if Experior had not waived that challenge, the evidence does not support a finding that Promissor gained any competitive advantage. Although Experior attempted to show, through the testimony of Mark Caulfield, that Promissor could not perform the CBT Services Contract at a profit at the $9.00 per hour price it proposed, Mr. Caulfield actually testified that it would be possible for a company to perform the services for $9.00 per hour, and he did not know what Promissor's actual costs were. Moreover, there is no persuasive evidence that Experior's prior cost proposal played any role in Promissor's determination of its bid for the second RFP or, if it did, that such consideration would have violated any provision of the RFP, governing statutes or rules or Department policies, under the prevailing circumstances, if it had occurred. Alleged Improper Scoring of Experior's Proposal with Respect to Criterion VII.A. Experior alleged that Evaluator One should have awarded 15 points instead 11 points for Experior's proposal format, criterion VII.A., but Experior did not offer the testimony of Evaluator One or any other evidence supporting that allegation. Experior failed to carry its burden of showing that the award of 11 points to Experior for criterion VII.A., was irrational or violated the requirements of the RFP or controlling policies, law or rules of the Department. Even if Evaluator One had awarded 15 points for that criterion, Experior admitted it would have no material impact on the outcome of the procurement, given the more than 21 point advantage PSI enjoyed over Experior. Responsiveness and Qualification The preponderant evidence does not establish that Experior was entitled to but did not receive the additional 21.38 points that it would have to earn to score higher than PSI and move into second place. Experior did not establish error in the evaluation or scoring of its proposal or PSI's proposal that alone, or collectively, would be sufficient for Experior to overtake PSI. As a result, Experior could only prove its standing ahead of PSI by having the Promissor proposal disqualified, which would move it to the first-ranked position because of accession of the full 175 points for having what, in that event, would be the lowest cost proposal. Experior's objection to the Promissor proposal is not meritorious. Its protest alleges that "because Promissor will [allegedly] subcontract for services representing more than 33 percent of contract value, Promissor is disqualified from submitting its proposal and its proposal must be stricken from consideration." Experior did not allege any error in the scoring of Promissor's proposal and so Promissor's highest score cannot be changed. Indeed, even if Experior were awarded the maximum technical score of 325 points, Experior's score would be 482.15 points, still less than Promissor's score of 490.08 points. Experior, as a practical matter, cannot earn enough points because of the disparity in final cost proposal scores to overtake Promissor, unless it can prove Promissor should be disqualified. Experior's proof did not amount to preponderant, persuasive evidence that the Department erred in determining that Promissor's proposal was responsive and that Promissor was a qualified proposer. The Department did an initial review of the proposals to determine if they were responsive to all mandatory requirements, and any proposer determined non-responsive would have been excluded at that point. Promissor's proposal contained all required information in the required format and was deemed responsive. The preponderant evidence shows that the Department's determination that Promissor was responsive and qualified comported with the requirements of the RFP and controlling policy, rules and law. Promissor expressly stated that it would comply with the RFP's subcontracting guidelines upon performing the contract wherein it stated "Promissor agrees and commits to meet the requirement of the RFP." Promissor's proposal stated its intent to subcontract less than 33 percent of the contract value, and that was all that was required for the proposal to be responsive. There is nothing in the Promissor proposal that indicated that Promissor would not comply with the subcontracting guidelines. Experior's entire challenge to the Promissor proposal is based on the contention that Promissor intended to use a subcontractor to provide call center services under the Florida contract but did not say so in its proposal. The Promissor proposal actually stated that Promissor would use its "proprietary scheduling system" or "proprietary reservation system" to service the Department's contract as it was currently doing, not that it would use any particular call center. These representations appear to be true, as Promissor's "scheduling system" or "reservation system" (the proprietary software Promissor uses to take reservations) that it said it would use for the new Florida contract is the same system used under the prior contact with the Department. Ordinarily, whether or not Promissor would actually comply with the subcontractor guidelines could not be determined until Promissor actually performs the contract. It is an issue of contract compliance and not responsiveness or qualification. Here the evidence shows that Promissor was in compliance with the 33 percent maximum subcontracting requirement before the originally scheduled contract implementation date. Since Promissor wished to obtain the maximum points for minority participation, Promissor decided to subcontract to the maximum possible extent with an MWBE. In doing so, Promissor wanted to assure that the use of Thompson Direct, Inc., for call center services did not make it exceed the 33 percent subcontractor standard. Thus, Promissor decided, before it submitted its proposal, to perform the call center services from one of its three regional centers and this decision was communicated internally before Promissor prepared its proposal. Promissor initially intended to perform the call center services from its regional offices in Atlanta, Georgia. In order to implement that decision, senior executives of Promissor, including its president, toured that office in early March, before the Department posted its notice of intent to award to Promissor. After the notice of award was posted on March 12, 2003, Promissor promptly posted an employment advertisement on its website seeking persons to act as call center representatives to service the Florida contract from the Atlanta office. That advertisement was posted on March 14, 2003, a day before Experior filed its notice of intent to protest. In early to mid-April, the manager of the Georgia regional office prepared a project plan that revealed that the Georgia regional office might not be ready to perform call center services by the May 20th contract implementation date. Promissor then decided to use its Maryland regional office to perform the call center services. Regardless of the location of the call center, the scheduling system used by Promissor would be the same as under the prior contract and the same as Promissor promised in its proposal. The Scranton call center and the three regional offices use the same proprietary scheduling system provided by Promissor and run from servers located at Promissor's headquarters in Bala Cynwyd, Pennsylvania. Even at the Scranton call center that was previously used, Promissor trained all of the employees, who handle calls only for Promissor, wrote the scripts for their use and provided the proprietary scheduling software. The Maryland call center was actually accepting all calls for the Florida programs to be serviced pursuant to the RFP by May 19th, before the May 20th contract implementation date. Since the call center services were actually being provided by Promissor's Maryland regional office before the contract implementation date, Experior's claim that Promissor would provide those services through a subcontractor is not supported by preponderant evidence. Allegations that Promissor Made Misrepresentations Regarding Subcontractors In light of Promissor's actual provision of call center services from its regional office before the contract implementation date, Experior's contention that alleged misrepresentations occurred in the Promissor proposal are without merit. Even if Promissor had not actually performed, however, Experior failed to prove that Promissor made any misrepresentations or was unqualified. In support of its claim that Promissor was unqualified, Experior introduced into evidence three proposals that Promissor or ASI (a corporate predecessor to Promissor) had submitted to agencies in other states in the past three years. Experior argues that Promissor/ASI made misrepresentations in the other proposals and, therefore, Promissor made misrepresentations in the proposal at issue in this proceeding. Its basis for alleging that Promissor made misrepresentations in the Florida proposal at issue is its contention that Promissor/ASI made misrepresentations in other proposals to other states. No evidence was offered that Promissor had made a misrepresentation to the Department as to this RFP, however. In light of Promissor's actual performance in accordance with its proposal and the RFP requirements, the proposals from the other states have little relevance. Experior did not prove that Promissor made misrepresentations in the other proposals, particularly when considering the timing of those proposals and Promissor's corporate history. Promissor's corporate history must be considered in evaluating the claim of misrepresentation to the other state agencies in other states. In 1995, Assessment Systems, Inc., or "ASI," was acquired by Harcourt Brace Publishers. In June of 2001, ASI was sold with a number of other Harcourt companies, including a company called Harcourt Learning Direct, to the Thompson corporation. Harcourt Learning Direct was re-named Thompson Education Direct. Soon after, the federal government required, for anti-trust reasons, that Thompson divest itself of ASI. Accordingly, ASI was acquired by Houghton Mifflin Publishers in December 2001, and its name was later changed to Promissor. Up until December 2001, the entity now known as Promissor and the entity now known as Thompson Education Direct were corporate affiliates under the same corporate umbrella. The Kansas Proposal Experior's Exhibit five was ASI's Proposal for Agent Licensing Examination Services for the Kansas Insurance Department dated May 8, 2000. A letter that accompanied the proposal stated that ASI would not engage a subcontractor for examination development or administration services. Mark Caulfield testified that he did not know whether or not what was said in this letter was true on the date it was written. He testified that he did not know if ASI was using any subcontractors or any outside contractors for any purpose in May of 2000. In fact, as of May 2000, ASI did not subcontract for any call center services; at the time that the letter was written, all of the representations in the letter were true. ASI was awarded the Kansas contract and Experior did not protest. Experior did not offer any evidence related to the requirements in the Kansas RFP and is not aware of any issues between Kansas and Promissor regarding the contract. There is no evidence that the Kansas request for proposals had any subcontracting limitations in it. The proposal that ASI submitted to Kansas in May 2000 listed a phone number for ASI's call center. In preparation for the hearing, witness Mark Caulfield called that phone number and claimed that a person answered the phone "Promissor," and said she was located in Scranton, Pennsylvania. Experior did not show that the person that answered the phone was an employee of Promissor. Whether or not the person who answered the phone in that example was or was not an employee of Promissor and could or could not bind Promissor with any statement as a party admission, is beside the point that it has not been shown who would have answered the phone in May 2000, or where they would have been located, as to whether or not that person was the employee of Promissor or its immediate corporate predecessor in interest or whether that person was employed by some subcontractor. That is immaterial, however, in the face of the fact that it has not been proven that the Kansas request for proposals had any subcontracting limitations in the first place and, therefore, no misrepresentation in the Kansas situation has been proven on the part of Promissor. The Maine Proposal Experior's Exhibit seven is ASI's proposal to provide real estate examination administration and related services for the Maine Department of Professional Regulation and is dated August 1, 2001. As of August 1, 2001, ASI did not subcontract for call center services. On pages 2-10 of the Maine proposal, there is a reference to ASI having an extensive network of program-specific, toll-free telephone lines and program-dedicated customer care representatives. This statement was shown to be accurate and was an accurate statement when made on August 1, 2001. The statement refers to the monitoring of the reservation process done by ASI management. Experior admitted that it had no reason to believe that in August of 2001, ASI did not have an extensive network or program-specific toll-free telephone lines and program-dedicated customer care representatives, and Experior did not prove that to be currently untrue. Experior's Exhibit eight is Promissor's Real Estate Candidate handbook regarding the Maine procurement dated April 2003. As of April 2003, the statements made in the handbook were accurate and correct. The handbook listed on page 11 a customer care phone number of 877-543-5220. Experior provided no evidence as to the location where that phone number rang in April of 2003. Experior did not show persuasive evidence regarding the requirements in the Maine RFP and there is no evidence that the Maine RFP had any subcontracting limitations as are in question in the instant case. The Oklahoma Proposal Experior's Exhibit nine was Promissor's response to Bid No. N031354 for License Testing Services for the Oklahoma Insurance Department. It is dated December 18, 2002. Promissor did not state in the proposal that it would not use subcontractors. There is no need to reference subcontractors in the Oklahoma proposal as the Oklahoma RFP did not contain subcontracting limitations. Oklahoma has approved the manner in which Promissor is performing under that contract and Experior did not establish that the statements in Promissor's proposal were false when made or now. The Texas Proposal Experior's Exhibit twelve is Promissor's press release titled "Texas Selects Promissor as Exclusive Provider for Insurance License Testing," dated October 1, 2002, in which Promissor referred to "the Promissor Call Center." Experior did not establish that Texas was not served by a Promissor call center or that Promissor was not performing in the manner its Texas proposal promised. In fact, Texas has approved Promissor's performance under the Texas contract. Even if the proposals Promissor offered had stated that Promissor would provide call center services through a specified entity (which they did not do), and then Promissor later performed such services through another entity, such evidence would be insufficient to prove that Promissor would not comply with the Florida RFP's subcontracting guidelines, especially given Promissor's actual performance in accordance with its proposal. Experior did not establish with preponderant evidence a "routine business practice" of Promissor to make misleading or false promises in proposals to evade subcontracting guidelines. There is no evidence in any of the four states concerning which Experior provided evidence, that they had any subcontracting limitation in their RFPs. The evidence showed that the statements in each of these proposals were undoubtedly accurate at the time they were made; to the extent that the provision of call center services differs from what was promised (although the evidence does not establish that), such difference is explained by the changes in corporate structures that have occurred since the proposals were submitted. Additionally, the evidence established that Promissor has submitted between 70 and 120 proposals since the beginning of 2000 across the nation. The documents relating only to other proposals to other states that were not even proved to have requirements similar to Florida's are insufficient to establish that Promissor had a "routine" practice of making misleading promises about its call center services. Accordingly, the Petitioner has not offered preponderant, persuasive evidence that Promissor is unqualified as a proposer.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation denying the Petition and approving the intended award of the contract to Promissor, Inc. DONE AND ENTERED this 22nd day of August, 2003, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 22nd day of August, 2003. COPIES FURNISHED: Wendy Russell Weiner, Esquire Mang Law Firm, P.A. 660 East Jefferson Street Tallahassee, Florida 32301 Joseph M. Helton, Jr., Esquire Michael J. Wheeler, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2022 Paul R. Ezatoff, Esquire Katz, Kutter, Alderman & Bryant, P.A. 106 East College Avenue, Suite 1200 Tallahassee, Florida 32301 Michael P. Donaldson, Esquire Carlton Fields Law Firm 215 South Monroe Street, Suite 500 Tallahassee, Florida 32301 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue for determination is whether Respondent's intent to award a contract for bridge-tending services (RFP DOT 92/93 2088 REBID) to Intervenor constitutes fraudulent, arbitrary, capricious, illegal or dishonest action.
Findings Of Fact The parties stipulated to findings of fact set forth in paragraphs 1.-12., below. Stipulated Facts Respondent issued the RFP for bridge-tending services on May 14, 1993. Proposals submitted in response to the RFP were opened on June 16, 1993. Proposals were submitted by five firms, including Petitioner and Intervenor. All proposals were determined at the time to be responsive. A Technical Review Committee (TRC) was appointed to review the technical portion of the proposals. The three members of the TRC were Alan Hyman, J. L. Gillis, and Yingyong Sujjavanich. The members reviewed the technical portion of the proposals on June 17, 1993. The evaluation forms completed by the TRC and a summary score sheet were delivered to Respondent's purchasing office on the morning of June 18, 1993. The price proposal was evaluated by Respondent's purchasing office. The price evaluation of each proposal was performed by applying a formula which compared the submitted price quotations. After the scores for the technical proposal and the cost proposals were totalled, it was determined that Intervenor's proposal had earned the highest number of points. This result was presented to Respondent's District 2 Executive Committee and a recommendation was communicated by the Purchasing Director to award the RFP to Intervenor. The Executive Committee accepted the recommendation and directed that the contract be awarded to Intervenor. On June 18, 1993, at 4 p.m., the bid tabs were posted noticing Respondent's intent to award the contract to Intervenor. On or about July 6, 1993, Petitioner requested a meeting with Respondent's representatives regarding the RFP. That meeting was held on July 9, 1993. At the meeting, Petitioner raised an issue regarding an arithmetic error in the scoring of the technical proposals. Intervenor remained the proposer with the highest number of points. However, another proposal formerly ranked as number two was lowered to number three status and Petitioner, previously ranked number three, was raised to number two rank. On July 12, 1993, Respondent posted an amended bid tab indicating its intent to award the contract to Intervenor. Other Facts Respondent chose to score the bid pricing, a non- subjective task, in Respondent's District 2 office. Technical portions of the proposals were reviewed by the TRC, comprised of members from Respondent's District 5 office. This unusual step was taken by Respondent in order to reduce prejudice to any proposal in view of previous accusations made against District 2 employees. Bud Rosier, Respondent's employee, has overall responsibility for bridge determination that District 5 employees chosen as committee members were qualified to evaluate the proposals. Each response to the RFP contained a technical proposal and a price proposal. Intervenor's technical proposal received 1.33 points less than Petitioner's technical proposal. The price proposals, as noted above, were scored in accordance with a mathematical formula that compares price proposals to each other and does not take any subjective factors into consideration. Intervenor was awarded 5.55 points, compared to Petitioner who received no points for a proposal more than $140,000 higher for the initial year of the contemplated contract. Although members of the TRC were not given any background information by Respondent regarding the competing proposals, beyond that contained in the submitted bid packages, no information was withheld from the committee. The members were given adequate time to review the proposals and do any desired independent background checking regarding past performance of any proposer, although no requirement in the RFP mandated such a background review. At least one of the TRC members, Sujjavanich, chose not to independently research past performance of the Intervenor. No evidence was offered at hearing with regard to whether the other two members independently researched any of the proposers' past performances. Even if review of past performance, apart from the materials submitted by the proposers, were required by provisions of the RFP, failure of the evaluators to accomplish that task would result only in the loss to Intervenor of the 3.66 points awarded for past performance and Intervenor, with a remaining total of 81.89 points, would remain the highest ranked proposer. In view of the objective process used to arrive at the results of the evaluation of the prices of the competing proposals, there was no need to provide this information to the members of the TRC who were doing the technical proposal evaluation. Although the RFP provided that the TRC would be given such results, the failure of Respondent's personnel to provide this information to the evaluators could not have made any difference in the final result since the committee, using the objective price evaluation criteria, would have arrived at the same result as the purchasing office on cost scores. The admitted failure to provide the superfluous cost information to the TRC is inadequate to show that such omission resulted in prejudice to the final scores of any of the competing proposals and must be considered to be only a minor variation from the RFP by Respondent. Contrary to Petitioner's allegations, there is no competent substantial evidence to support any finding that the members of the TRC (Hyman, Gillis, and Sujjavanich) did not possess required background, experience or professional credentials adequate for evaluating proposals for bridge-tending services. All three members of the TRC were familiar with the RFP, attachments to the RFP, bridge-tending procedures and bridge-tending qualification procedures. There is no competent substantial evidence to establish that Intervenor's proposal is not financially feasible. Proposed utilization of 72 bridge-tenders by Intervenor for a total price of $673,333.44 does not mean that 72 bridge-tender positions would be established or filled, or that the positions would be paid at the rate proposed by Petitioner of $8.40 per hour. The evidence establishes that a proposer would need an optimum number of bridge requirements.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered granting the award of the bid in RFP DOT 92/93 2088 Rebid to Intervenor. DONE AND ENTERED this 4th day of October, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4271BID The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-12. Accepted. 13.-16. Rejected, relevancy. 17. Accepted. 18.-19. Rejected, relevancy. 20.-25. Accepted. 26.-27. Rejected, cumulative. 28. Rejected, credibility. 29.-33. Rejected, relevancy. 34.-35. Accepted. 36.-37. Rejected, argumentative and mischaracterization. 38.-46. Rejected, subordinate to HO findings. 47.-51. Rejected, relevancy. Intervenor's Proposed Findings. 1.-2. Rejected, cumulative. 3.-4. Accepted. 5.-6. Rejected, unnecessary. Rejected, cumulative. Rejected, unnecessary. Rejected, argumentative. 10.-11. Rejected, unnecessary. 12.-13. Adopted by reference. 14.-16. Accepted, but not verbatim. 17.-22. Adopted by reference. 23. Rejected, unnecessary. 24.-30. Adopted, but not verbatim. 31. Rejected, narrative. 32.-35. Rejected, cumulative. Respondent's Proposed Findings. 1.-11. Adopted. 12. Rejected, unnecessary. 13.-17. Adopted, not verbatim. 18.-19. Rejected, cumulative. 20.-22. Adopted. 23. Rejected, recitation of RFP. 24.-26. Adopted. 27. Rejected, recitation of RFP. 28.-29. Adopted in substance. COPIES FURNISHED: Thomas Cassidy, III, Esquire. John O. Williams, Esquire Renaissance Square 1343 East Tennessee Street Tallahassee, Florida 32308 Carolyn S. Holifield, Esquire Mark D. Tucker, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwanee Street Tallahassee, Florida 32399-0458 Timothy G. Schoenwalder, Esquire 204-B South Monroe Street Tallahassee, Florida 32302-3068 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399 Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building # 562 605 Suwannee Street Tallahassee, Florida 32399
The Issue The issues to be resolved in this proceeding concern whether the Petitioner has been the victim of an unlawful employment practice by the refusal by the Respondent to hire him for an employment position and whether that refusal was based upon the Petitioner's race or his age, as envisioned in the provisions of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact The Petitioner is a black male, age 73, at the time the application for employment in question was submitted. The Respondent is a department of the Alachua County government maintaining, among other operations, the RSVP. This is a county-staffed program which organizes and facilitates retired or senior citizens providing volunteer services to various organizations in the community in and around Alachua County. The Respondent is an "employer" for purposes of Chapter 760, Florida Statutes. In March 1992, the Petitioner was the "911 coordinator" for Alachua County, earning a salary of $25,000.00 per year. He became aware of the subject opening with the RSVP operated by Alachua County. He submitted an application for that job, the position of Director of the RSVP. The Respondent operates seven programs, including the RSVP, the foster grandparents program, crime advocates, the crisis center, veteran services, social services and animal services. Elizabeth Jones is a 59-year-old white female, who has been director of the Department of Community Services since 1991. The director of the RSVP, the position in question, is supervised by Ms. Jones. Elmira Warren is a 44-year-old black female, who was director of the RSVP. Shortly before the announcement of the vacancy for the RSVP director, Ms. Warren was promoted from that position to the position of director of the foster grandparents program by Ms. Jones. On March 5, 1992, Ms. Jones executed and submitted to the county's personnel department the "Alachua County Notice of Vacancy" for the position of the RSVP director. The Notice of Vacancy form depicts that the Respondent had a vacancy for the RSVP director which had been created by Ms. Warren's promotion. Pursuant to county procedure, the department submitting a Notice of Vacancy advises the personnel department as to whether the job description for the vacant position involved is an accurate one. Ms. Jones reviewed that job description to make sure that it was correct and reviewed the minimum qualifications, including the requested preference for applicants with experience working with senior citizens. The Notice of Vacancy form contains a verification that the job description has been reviewed and accurately reflects the position, including the minimum requirements, which are job related. Ms. Jones used the job description throughout the interview process. The job description for the RSVP director has not changed since 1983. It requires that occupants of the position shall have obtained graduation from an accredited four-year college or university, with major course work in a human relations field and with three years responsible experience in social work, community development, group organization, and grantsmanship, preferably with senior citizens. It requires that one year of that training be in a supervisory and administrative position or any equivalent combination of training and experience. Pursuant to county personnel procedure, the position vacancy was posted. The accuracy of that posting was verified by Ms. Jones. It was also advertised in the Gainesville Sun, a newspaper of general circulation in Alachua County. Thirty-three (33) applications were received by the personnel office for that position and reviewed by that office to determine which applicants met the minimum qualifications for the position. Eight applications were determined to meet the minimum qualifications and were forwarded to Ms. Jones and her department for consideration and the interview and selection process. The Petitioner's application was forwarded by the personnel office to the Department, along with seven others, including that of Ms. Gablehouse, the applicant ultimately selected to be hired. Both the job description and the job announcement specify a hiring preference for an applicant with experience with senior citizens. Pursuant to regular county personnel policy and procedure, a department may initially screen forwarded applications for a background which more closely resembles the qualities in a prospective employee that the department is looking for, within the overall general minimum qualifications. When there are a number of candidates who meet the minimum requirements, as well as the preferred or desired level of background experience, as for instance, the preference for persons for experience working with senior citizens, the county generally selects employees from those people who have the preferred or desired background or experience. Thus, the preferred job criteria, as a matter of regular practice and policy by the county, is used as a device to further screen applicants. Ms. Jones decided what criteria to use in judging the applications prior to receiving the applications. Her criteria included the job description and specifically included the preference for experience working with senior citizens. After reviewing the applications, Ms. Jones decided to interview everyone, except Mr. Ray, Mr. Davis, and the Petitioner, of the eight applicants that were forwarded to her. Ms. Jones did not interview applicant Davis because he had a conviction for battery on his record, and his only experience with senior citizens was in conjunction with work with his church, rather than in a community-at-large type of setting. Ms. Jones did not interview Mr. Ray because he had recently been terminated from his previous employment and his references were not favorable. Ms. Jones did interview the Petitioner, as there was nothing on the face of his application showing that he had experience with senior citizens. The four persons interviewed by Ms. Jones for the RSVP director position had all listed relevant experience with senior citizens. Two of them referred for interview were not actually interviewed because they withdrew their applications from consideration. The Petitioner's application, by his own admission, did not list or reflect experience working with senior citizens. Pursuant to regular county procedure, an interview log is used to identify all applicants interviewed and to provide comments concerning why a specific person was selected for the position. Ms. Jones kept such an interview log and explained in writing in the log why the Petitioner was not interviewed. She explained that the Petitioner was not interviewed because his experience did not include experience with senior citizens. Pursuant to county personnel procedure, the personnel staff reviews the log and the position vacancy package to insure that comments in the log correspond with information contained in the individual applications. This process provides oversight of the selection process. The personnel office review found the selection process used by Ms. Jones to be proper and in accord with county policy and procedure. The RSVP is one involving a staff that meets with senior citizen volunteers who are looking for volunteer experiences. That staff interviews those retired citizens and suggests sites or activities that can utilize senior citizen volunteers. Ms. Jones continued the job preference criteria for senior citizen experience because she regarded it as important that the RSVP director have such experience working with senior citizens. Such criteria, in her belief, had been useful in the past in selecting employees who were capable and appropriate for work with senior citizens. Melinda Gablehouse is a 33-year-old white female. She was ultimately hired by Ms. Jones for the RSVP director position in question. Her application for the position reflects extensive experience working with senior citizens. She also had prior experience with the RSVP prior to working for Alachua County. Based upon her past employment experience, Ms. Gablehouse believes that experience working with senior citizens is vital to the success of the directorship of the RSVP. Ann Snavely is a 55-year-old white female. She is a program specialist who has been with the RSVP since 1982. Ms. Snavely also believes that experience working with senior citizens is an important job criteria reflective of a necessary skill for the position of director of the RSVP. Ms. Elmira Warren is a 44-year-old african-american female. She was previously the RSVP director until she was promoted by Ms. Jones to director of the foster grandparents program. Ms. Warren stated that it would be very helpful for the RSVP director to have experience with senior citizens, as well. In her testimony, she pointed out the differences involving work with senior citizens as clients, members of the public, or employees, as opposed to working with youth or more youthful citizens or employees. Ms. Jones ultimately selected Ms. Gablehouse for the position of RSVP director because her background reflected the best level of experience working with senior citizens. This, coupled with her personal knowledge and experience working with the RSVP in a prior job position, together with her attitude toward the position, reflected, in the mind of Ms. Jones in selecting her, that she was clearly the best qualified candidate. Neither age nor race was a factor used by Ms. Jones in deciding who she would interview nor who she would hire for the RSVP director position. Experience with senior citizens is an age-neutral and race-neutral job criterion and a criterion readily qualifiable. It is, therefore, an objective job criterion. The evidence establishes that Ms. Gablehouse was more qualified than the Petitioner for the position of RSVP director.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief. DONE AND ENTERED this 8th day of July, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 8th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5469 Petitioner's Proposed Findings of Fact 1-21. Accepted. 22. Rejected, as not entirely in accord with the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter. 23-30. Accepted. 31-32. Accepted, but not itself dispositive of the material issues presented. 33-38. Accepted, but not itself dispositive of the material issues presented, and subordinate to the Hearing Officer's findings of fact on this subject matter. 39-40. Accepted, but not dispositive of the material issues presented. 41-42. Accepted. 43. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. 44-48. Rejected, as immaterial. Accepted. Accepted, but immaterial to resolution of the issues presented. Respondent's Proposed Findings of Fact 1-6. Accepted. 7. Rejected, as immaterial. 8-21. Accepted. 22. Rejected, as immaterial. 23-50. Accepted. Rejected, as immaterial. Accepted. COPIES FURNISHED: N. Albert Bacharach, Jr., Esquire 115 N.E. 7th Avenue Gainesville, Florida 32601 Robert M. Ott, Esquire Post Office Box 2877 Gainesville, Florida 32602 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, Esquire General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Petitioner, instead of Intervenor, is entitled to the award of RFP-DOT-98-99-4005.
Findings Of Fact The Department issued and advertised RFP-DOT-98-99-4005 (RFP) for bridge tending, maintenance and repair service contracts for movable bridges in St. Lucie and Martin counties. Theresa Martin has been the Department's District IV Contractual Services Coordinator for the past four years. Ms. Martin is responsible for reviewing all requests for contractual services contracts, and did so in the present case. In preparing RFP’s, including the RFP that is the subject of this proceeding, the Contractual Services Office follows the statutory and rule provisions of Section 287.057, Florida Statutes, and Chapter 60A, Florida Administrative Code, and utilizes the Department's Contractual Services Acquisition Procedures, Procedure Number 357-040-020-D. The RFP specifications were not protested. Three proposers submitted timely responses to the RFP: General Electric Industrial Services(GE), Old Tampa Bay Enterprises (OTBE), and C&S Building Maintenance (C&S). The Department determined that the proposals of all three vendors were responsive. Having determined that the proposals were responsive, the Department reviewed and scored the proposals in accordance with the criteria listed in the RFP. The RFP established five (5) different criteria upon which the Department was to evaluate each proposal. The criteria and the maximum allotted points for each criteria were as follows: Management Plan . . . . . . . . .35 points Technical Plan . . . . . . . . .35 points 3. Price . . . . . . . . . .. . . . 25 points Certified Minority Business .. . .5 points Executive Judgment . . . . . . . .5 points GE received the highest rating among the three proposers for its proposal and OTBE was rated second. Based on these ratings, the Department of Transportation posted its intent to award the project to GE. The RFP required submission of separate price and technical proposals. The price proposal included forms for both the proposer’s price and for certification of the proposer’s intention with respect to the use of Disadvantaged Business Enterprises (DBEs). The price proposal and technical proposal were to be submitted to the Department at the same time but in separate sealed envelopes. The price proposal and the technical proposal were then opened separately and scored separately. The technical proposals were properly reviewed and scored by a technical review committee. After the technical proposals were scored, the members of the technical review committee reviewed the price proposals and provided the Department’s contract administrators with their views as to whether the price proposal was acceptable. The technical review committee concluded that GE’s pricing was acceptable, although it exceeded the Department’s estimated budgetary ceiling. The RFP expressly provides: "This is an Indefinite Quantity Contract for which the Department has established an estimated budgetary ceiling amount of $480,000.00. The Contractor shall not exceed the estimated budgetary ceiling amount without an executed Supplemental Agreement. A Supplemental Agreement to increase the estimated budgetary ceiling amount may be entered into based upon Department need and availability." The Department did not interpret the "estimated budgetary ceiling" as an absolute cap. Rather, the Department considered the "estimated budgetary ceiling" a budgeting tool that gave the proposers an indication of the Department’s estimation of the dollar amounts necessary and available for the contract. The estimated budgetary ceiling amount is typically based upon the Department's recent expenditures in similar contracts. Given that the budgetary ceiling in the RFP is an estimate, the RFP specifically authorizes the Department to amend or supplement the contract with additional dollars during the course of the project. The budgetary modification process provided by the execution of Supplementary Agreements for indefinite quantity contracts occurs on a regular basis in District IV and is provided for in the Department's governing Contractual Services Procedures. Consistent with the Department's interpretation of the "estimated budgetary ceiling," a price proposal that was higher than the budgetary estimate would not be considered irregular and rejected as non-responsive. OTBE apparently believed that the RFP’s statement of an "estimated budgetary ceiling" created an absolute cap on the amount of permissible bids. Based on its mistaken belief, OTBE submitted a price of $479,987.00, three dollars below the Department’s estimated budgetary ceiling amount. Both GE and C&S bid amounts that exceeded the estimated budgetary ceiling with GE’s total price bid being $575,100.00. Although the price proposals of GE and C&S exceeded the estimated budgetary ceiling of $480,000.00, the Department did not consider either of these proposals non-responsive. The Department’s decision in this regard was consistent with its definition and interpretation of estimated budgetary ceiling. To determine the number of points each proposal would be awarded in the price category, the Department applied the mathematical formula that was specified in the RFP. According to the RFP: THE PRICE USED IN AWARDING POINTS WILL BE THE GRAND TOTAL SHOWN ON PRICE PROPOSAL FROM "C." ALL RESPONSIVE PRICE PROPOSALS WILL BE SCORED IN RELATION TO THE LOWEST PRICE PROPOSAL USING THE FOLLOWING FORMULA: (Low proposal/subject proposal x 25 points = awarded price points) The points awarded for the price proposal after applying the aforementioned mathematical formula were applied to the price proposal and then added to the particular proposer’s technical proposal point total. Pursuant to the formula specified in the RFP, the low price proposal received 25 points and the other proposals received a proportionate share of 25 points equal to the ratio of the low price to the proposer’s price. The Department reviewed and scored the prices bid by GE, OTBE, and C&S using the price formula established in the RFP. OTBE, with the low bid a price of $479,100.00, was awarded 25 points in the price category. The RFP formula was also applied to GE’s price bid of $575,100.00; as a result thereof, GE was awarded 20.87 points in the price category. OTBE received the benefit of its low bid by receiving the maximum points in the price category. There was no minority business enterprises or DBE goal set for this RFP. However, pursuant to Section 287.057(6)(c), Florida Statutes, the Department provided a point preference for proposers that certified that they would subcontract at least 3 percent to 10 percent of the contract value to certified DBEs. The RFP provided that: The Department will add up to 5 points to the scores of firms (non-CDBE) utilizing Certified DBE’s as subcontractors for services or commodities as follows: 10% and above of total project dollars - 5 points, 3% - 9.9% of total project dollars - 2 points Complete and attach the DBE Preference Points Certification Form (Form "D") in the Price Proposal if CDBE preference points are to be considered. The DBE Preference Certification Form was included as part of the RFP package and was required to be submitted as part of each proposer's price package. Furthermore, the face of the form also required each proposer to declare if it intended to subcontract part of the work to DBEs and specified the scoring for certification of an intent to use DBEs. The DBE Preference Certification Form also advised vendors that a proposer who certified an intent to subcontract at least 10 percent of the contract was awarded 5 points; that a proposer who certified an intent to subcontract more than 3 percent, but less than 10 percent, was awarded 2 points; and that a proposer who did not commit to an intention to subcontract to DBEs would receive no additional points in this category. The purpose of utilizing the DBE Preference Form Certification is for the Department to provide an incentive for contractors to utilize DBEs on Department projects and to bind the proposer to the commitment that is certified on DBE Preference Certification Form. However, when the Department utilizes the form, it is a discretionary election of the proposer to take advantage of utilizing a DBE and receive the additional points. OTBE’s DBE Preference Certification Form stated that OTBE did not intend to use DBEs. Thus, OTBE did not receive any points in the certified business criteria. GE stated on its DBE Preference Certification Form that it intended to subcontract at least 10 percent of the contract to DBEs. Based on GE's certification of an intention to use DBEs for 10 percent of the contract work, in accordance with the provision of the RFP, the Department awarded GE 5 points. On the DBE Preference Certification Form, there was a place for the proposer to list the DBEs it proposed to use and to indicate the type of work and/or commodities that the DBEs would provide. On its DBE Preference Certification Form, GE listed the two DBE entities that it intended to use on the project: Advanced Marketing Consultants and J.C. Industrial Manufacturing Corp. (JC Machines). With regard to the type of work that could be subcontracted to these DBEs, GE indicated on its DBE Preference Certification Form that Advanced Marketing Consultants could provide payroll services and that JC Machines could perform mechanical repairs. The Department’s District IV Contracting Office reviewed GE’s price proposal, including GE’s DBE Preference Certification Form. As part of that process, the District IV contract administrator checked with the Department’s Central Office in Tallahassee, Florida, and confirmed that the DBE’s listed in GE’s proposal were certified DBEs. There is sufficient work available under the contract specifications for GE to meet its DBE commitment using the DBEs that GE listed in its proposal. Moreover, the DBEs listed by GE are capable of performing much of the work required in the RFP’s Scope of Services. The RFP required that each proposal include the names of qualified personnel that are able to perform the job duties and responsibilities outlined in the RFP specifications and that the proposer intended to use if it were awarded the contract. In this case, all three proposers, GE, OTBE, and C&S, submitted the same three key personnel for the bridge superintendent, bridge electrician, and bridge mechanic positions. At the time the proposals were submitted, the key personnel included in those proposals were all working in the positions for which they were listed. Apparently, these individuals had agreed to continue in their positions regardless of which proposer was awarded the contract. The RFP did not require that the personnel listed in a proposal be current employees of the proposer. Rather, the Department expected that these individuals would be employed by the proposer after the vendor was awarded the contract. The RFP specifies the percentage of work that the successful proposer may sublet under the contract. Section 6.0 of the RFP's Scope of Services (Section 6) provides in relevant part: The Contractor shall not sublet, transfer, assign or otherwise dispose of the contract or any portion thereof, or his right, title or interest therein without written approval of the Maintenance Engineer otherwise and in accordance with this agreement. Contractor shall not sublet more than fifty percent (50%) or [sic] a non set-a-side project. Based on the above-quoted provision, the successful proposer, as the prime contractor, can subcontract no more than 50 percent of the value of the contract. Notwithstanding the RFP’s limitation on the percentage of work that may be subcontracted, the RFP did not require proposers to state what percentage of the contract work they intend to subcontract. Moreover, the RFP did not require the vendors to submit proposed subcontracts nor did the RFP specify required terms for subcontracts. Therefore, at the time the RFP’s were evaluated, the Department did not and could not determine precisely what portion of the contract a proposer intended to subcontract or to whom work would be subcontracted. The Department interprets Section 6 to be a contract performance issue. The reason is that the percentage of the work that is subcontracted by the prime contractor after execution of the agreement is monitored by the Department during the performance of the contract. Such monitoring is accomplished by the Department’s requiring that all requests to subcontract portions of the contract be approved by the Department's project engineer. GE or any other successful proposer is obligated to comply with all the requirements and specifications of the RFP and contract. Failure of a successful proposer to comply with these requirements is a contract performance issue and not an issue that the Department is required or able to address at the proposal review and selection phase. In the instant case, the Department intended to award the contract to the responsive and responsible offerer whose proposal it determined to be the most advantageous to the State taking into consideration price and other criteria. GE was the apparent highest ranked, responsive, and responsible proposer or offerer with a total score of 87.20, including 20 points in the price category and 5 points for certifying its intent to use DBEs. OTBE was the second ranked proposer with 82.67, including 25 points for the price category; OTBE properly received no points for the DBE Preference Certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order awarding the contract to GE Industrial Systems and dismissing Petitioner’s challenge to the award of RFP-DOT-98-99- 4005. DONE AND ENTERED this 22nd day of June, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1999. COPIES FURNISHED: Thomas F. Barry, Secretary ATTN: James C. Myers, Clerk of the Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Brian F. McGrail Assistant General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Brant Hargrove, Esquire 1545 Raymond Diehl Road, Suite 150 Tallahassee, Florida 32301 Jonathan Sjostrom, Esquire Steel, Hector & Davis, L.L.P. 215 South Monroe Street, Suite 601 Tallahassee, Florida 32301-1804
The Issue Whether the proposed decision of the Department of Health (Department) to award a contract to the Intervenor, Chauncey Group International and Experior Assessments, LLC (Chauncey Group), is contrary to governing statutes, rules, or policies of the Board of Health (Board), or the specifications of RFP-DOH00- 015 (RFP).
Findings Of Fact The Board of Nursing is a state board which regulates the practice of nursing in the state. The Department of Health is the state Department which, among other things, is charged with the provision of general health services to the citizens of the state. ASI is a corporation with headquarters in Bala Cynwyd, Pennsylvania. The Chauncey Group is located in Princeton, New Jersey. Both ASI and the Chauncey Group have experience in administering tests to determine whether applicants may be designated certified nursing assistants. The Board determined that it required the development and administration of its nursing assistant certification program competency examination in accordance with applicable federal and state guidelines for the development of valid, reliable, and legally defensible examinations. It further determined that this could best be accomplished by contracting with a private vendor. The Board designated Dr. Ruth Stiehl as its representative for the preparation of the RFP. The Board employed the services of the Department in the preparation and evaluation of the RFP. Jim Brewer, a purchasing analyst for the Department, was designated administrative lead in the preparation of the RFP. Eunice E. Filar, an employee of the Department, was the person who was in charge of assembling the RFP. Dr. David Paulson, the Department's Manager for Testing Services, was her supervisor. The RFP required written questions to be submitted before March 28, 2001, and set the mandatory pre-proposal conference for April 11, 2001. It provided that additional questions identified at the pre-proposal conference would be answered by email or fax until April 18, 2001. Proposals were due at 2:00 p.m. on May 9, 2001, according to Subsection 2.10 of the RFP, or 2:00 p.m. on May 10, 2001, according to Subsection 2.4 of the RFP, and Jim Brewer. The addendum of April 7, 2001, stated that they were due on May 10, 2001, at 2:00 p.m. That time and date, being the last, is the time and date which is operative. Proposals were to be evaluated beginning May 15, 2001. Evaluation training was on May 23, 2001, and was conducted by Juan Trujillo, a psychometrician with the Department. Evaluation training had originally been scheduled for May 16, 2001, but had to be cancelled because Mr. Trujillo was ill. The proposals were submitted in boxes which were opened by Jim Brewer on May 10, 2001. This was reflected by a document signed by Mr. Brewer and Diane Harper. The proposed services portion was reviewed first. The cost proposal was not opened until on or about May 24, 2001. Section 5 of the RFP provided instructions to prospective offerors. It included such information as to the composition of the title page, required a brief narrative indicating the responder's understanding of the project, addressed mandatory requirements, and addressed other matters. Subsection 5.4, specifically addressed mandatory requirements. The section listed 11 mandatory requirements and recited that the failure to comply with each and every mandatory requirement would render a bid non-responsive and that non- responsive bids would not be evaluated. The requirements included such things as the number of copies of the proposal required to be submitted, whether or not the submission was in the required format, and whether the submission included sample scheduling and administration manuals as provided elsewhere in the RFP. Subsection 5.4.3 was a mandatory requirement which read as follows: "Was the bid accompanied by a surety bond or certified check as specified in 2.12." Subsection 2.12, recited, in part, as follows: "All proposals shall be accompanied by a surety bond or certified check in the amount of ten percent (10%) of the submitted bid price's annual total and conditioned upon successful offeror submitting the specified performance bond within ten (10) calendar days following notice of award, in the form and manner required by the offeror. Failure by an offeror to provide the required bid guarantee in the manner stated, shall cause the proposal to be considered non-responsible [sic] to this solicitation." Department personnel certified mandatory criteria compliance on May 18, 2001. The signatures of Ms. Filar and Dr. Paulson on the form entitled "Part 1: Proposal Mandatory Criteria (amended)" indicated that both responders had met the mandatory requirements. When the proposals were submitted, the business relationship between Chauncey Group International and Experior Assessments, LLC., was in the nature of joint adventurers. Each provided the Department with a cover sheet reflecting that they were separate business entities and each entity signed the mandatory forms required by the RFP but, in fact, they had joined together to provide the service sought. There was no prohibition in the RFP against responses from partners or joint adventurers. In a letter dated May 30, 2001, the Chauncey Group informed Jim Brewer that the ownership structure had changed and that Chauncey Group International had purchased 100 percent of Experior Assessments, LLC. Mr. Brewer testified that he did not view this to be of any consequence and he did not consider this to be a supplemental response to the RFP. The letter did not give the Chauncey Group an advantage over ASI. The check which was provided to the Department for the joint venture was provided only by Experior Assessments, LLC. This was done despite ambiguous and inappropriate email advice from Jim Brewer that, "Yes, vendors responding as partners to our RFP should each submit a bond. The bond could represent each vendor's responsibility or share as long as this is clearly defined in the proposal." The advice from Mr. Brewer was contrary to the requirements of RFP Subsection 2.12. It was also contrary to the RFP because the time for asking questions of the Department, and receiving answers, had expired. However, this did not give the Chauncey Group any advantage and, in fact, the Chauncey Group failed to make the submission as suggested by Mr. Brewer. The check, submitted by Chauncey Group International was in the proper amount, and included funds from both Chauncey Group International and Experior Assessments, LLC. This submission complied with RFP Subsection 2.12 because there was only one proposal from the two entities, despite the submission of two cover sheets. Consequently, the certification by Ms. Filar and Dr. Paulson, that both responders met the mandatory requirements, was correct. Once it was determined that mandatory requirements had been met, then the four other major areas addressed in the RFP could be evaluated. This is provided by Subsection 6.3. These other areas were proposed services, which had a weight of 45.1 percent; reference checks, which had a weight of 9.9 percent; minority vendor participation, which had a weight of 5.1 percent; and cost, which had a weight of 39.9 percent. The proposed services portion of the RFPs was evaluated by Rosemarie Erwin, Cheryl O'Donoghue, Betty Hurley, Raquel Bassett, and Carrie Harris. The evaluators used a form entitled, "Revised RFP Evaluation Criteria-for CAN Services." They were not permitted to see the cost proposals. The proposed services portion of the evaluation could have generated up to 615 points for each proposer. All of the forms used by the proposed service evaluators were dated May 23, 2001. The last proposed service evaluation was turned in on May 31, 2001. The evaluators' background experience and knowledge of the areas and requirements of the RFP were sufficient; the evaluators were qualified, fair, and experienced. The evaluators arrived at varying conclusions, as would be expected. None of the evaluators' scores were arbitrary, capricious, or contrary to the requirements of the RFP. The reference checks were accomplished by Lee Skinner, a psychometrician who was an employee of the Department. The reference checks could have generated as many as 135 points for each proposer. The reference checks resulted in ASI attaining 125.6 points and the Chauncey Group receiving 118.3 points. The minority vendor participation was evaluated by Dr. Paulson, Mr. Brewer, and Ms. Filar on May 25, 2001. Neither the Chauncey Group nor ASI properly completed the minority vendor participation form. No points for minority vendor participation were awarded to either proposer. The minority vendor portion could have generated up to 70 points for each proposer. The cost proposals were evaluated by Dr. Paulson and Ms. Filar on May 25, 2001. The cost proposals could have generated up to 545 points for each proposer. The ASI cost proposal was zero for the line which stated: "5. Per applicant cost for written examination in Spanish (excluding audio tape)." Located by the zero in the space provided were two asterisks which were repeated below the authorized signature line. The sentence following the two asterisks stated as follows: "Please note: Spanish examinations are provided in oralformat [sic] only and include a test booklet." Subsection 3.9.5 of the RFP states, "Administer both a written portion and a skills-demonstration portion of the examination to eligible candidates." Subsection 3.9.5b of the RFP, at the tenth bullet, or "k" if the alphabet is continued after "b," states that the responder must, "Provide a Spanish language examination to a candidate requesting the translated exam. (Currently a Spanish written, oral and skills demonstration examination are provided at no additional cost)." ASI's response in the proposed services portion, at Subsection 4.5.K, which corresponds to Subsection 3.9.5b (tenth bullet) of the RFP, stated as follows: "ASI will continue to provide a written, oral and skills demonstration examination in Spanish when requested in advance by the candidate. A candidate who wants to take examination in Spanish must indicate such on their application and submit the appropriate fee. Under our current contract, ASI answered the State's additional needs by providing bilingual Nurse Aide Evaluators (over 15% of all Florida NAEs speak Spanish), allowing candidates to take the written and skills examinations in Spanish." ASI's response to item 5 in the cost proposal was not responsive because it provided only for oral examinations, and quoted no cost figure. Clearly, what was being solicited was the cost for written examinations. This resulted in the Chauncey Group's receiving ten more points in the cost category than ASI. The cost proposal figures, and the results of all of the other evaluations were put into a computer program by Ms. Filar and Dr. Paulson. The computer program generated the final results. Ms. Filar and Dr. Paulson were not, as previously noted, on the team which evaluated the proposed services. Ms. Filar and Dr. Paulson did not refer to the proposed services portion of ASI's response when addressing the cost proposals and they were not required to do so. Though it is clear what Richard Soule, vice-president of business development for ASI, meant to say in the cost proposal, the response must be evaluated only on what it actually says. On June 4, 2001, Dr. Paulson, by memorandum, forwarded the result of the evaluations to the Board. The memorandum had an attachment entitled "Evaluation of Proposals for RFP #DOH00- 051." The attachment elucidated the evaluation methodology used and provided details as to how the results were obtained. At a public meeting of the Board on June 13, 2001, the memorandum with the attachment was discussed. Ms. Filar was there to answer questions. Questions by board members were posed to Ms. Filar and she responded to them. A motion was made to award the contract as recommended by Dr. Paulson's memorandum with attachment and the motion was passed unanimously. The Board issued a Notice of Intent to award the contract to the Chauncey Group, five days later on June 19, 2001. The attachment considered by the Board reported that the Chauncey Group received a total of 1101.5 points and that ASI received 1060.9 points and asserted that the Chauncey Group was the winner. The point total was incorrect because in arriving at that figure, the attachment reported that the Chauncey Group received 125.6 on the reference checks and that ASI received 118.3. As noted above, it should have reflected that ASI received 125.6 and that the Chauncey Group received 118.3. Correcting this error, by adding 7.3 points to ASI's total, and deducting 7.3 points from the Chauncey Group score, results in final scores of 1094.2 for the Chauncey Group, and 1068.2 for ASI. This error alone would not affect the outcome of the recommendation to award the contract to the Chauncey Group or the Board's decision. However, the span between the scores, 26, is less than the 70 points which might have been awarded for minority vendor participation. As noted above, Dr. Paulson, Mr. Brewer, and Ms. Filar decided not to award points to either responder in the case of minority vendor participation. The standard for obtaining minority vendor participation points was set forth in the RFP as Part IV as the "Minority Vendor Participation Form." This form required the following: "(1) the name of the offeror company; (2) a statement as to whether or not the offeror qualified as a minority vendor; (3) a statement as to whether or not the offeror planned to use a minority business as a subcontractor; (4) the name and address of the subcontractor; and (5) how the minority subcontractor was to be used. In the case of ASI, Part IV, the "Minority Vendor Participation Form," was properly completed except for the question, "How do you plan to use the minority vendor." This question was not answered at all in the Part IV form. Even though Part IV was the only place in the RFP in which minority vendor participation was noted, the form itself is presented as an evaluation tool. There was no requirement that responders complete the form so long as the information was provided. Accordingly, it was of no consequence where the information was reported. ASI responded to the question as to how they would utilize minority vendors in Subsection 4.5.C of their technical response. This response was buried deep in ASI's proposed services response, and its location caused the Department to miss it entirely. Nevertheless, it is responsive and should have been considered for what it was worth. In the case of the Chauncey Group, Part IV, the "Minority Vendor Participation Form," was not provided at all. Instead, a document entitled Minority Business Enterprises was included. It provided the name of the offeror company, the Chauncey Group. The submission failed to note whether the Chauncey Group was or was not a qualifying minority vendor, although the overall context of the submission made it clear that the Chauncey Group was not a qualifying minority vendor. The submission stated that the Chauncey Group, was, "negotiating in good faith with the Minority Business Enterprise vendors listed below, and will select one to use on this contract." This responded to the requirement that the offeror plan to use a minority business as a subcontractor. The names and addresses of the proposed subcontractors were provided. The Chauncey Group met the final requirement by explaining that the minority vendor selected would provide printing and mailing services. As noted above, 70 points were available for minority vendor participation. There were no standards provided in the RFP for awarding points in this category. The efforts of both proposers were so minimal in the area of minority vendor participation that it was not arbitrary for the Department to assign no points in this category. Subsequently, the Department properly informed the Board that neither proposer received any points for minority vendor participation. The error which changed the point totals, involving the reference checks, doe not change the fact that the Chauncey Group received the most points. The Board was correct when it decided to issue a Notice of Intent to award the contract to the Chauncey Group.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the contract be awarded to the Chauncey Group. DONE AND ENTERED this 28th day of September, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2001. COPIES FURNISHED: Paul R. Ezatoff, Esquire Jeffrey L. Frehn, Esquire Katz, Kutter, Haigler, Alderman, Bryant & Yon, P.A. 106 East College Avenue, 12th Floor Post Office Box 1877 Tallahassee, Florida 32302-1877 Douglas A. Mang, Esquire Wendy R. Wiener, Esquire Mang Law Firm, P.A. 660 East Jefferson Street Tallahassee, Florida 32302 Ruth R. Stiehl, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Amy Jones, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact The Department administers the CDCSAP Act (the "act"). The Florida legislature makes annual appropriations to fund the CDCSAP. These funds are used to finance activities of qualified CDCs. CDCs are community-based organizations which, in concert with state and local governments and private enterprise, facilitate or financially support revenue-generating business for the purpose of community economic development, redevelopment, preservation, restoration and revitalization. To this end, the Department's line staff person for the CDC program, James Fox, who is a planner employed by the Department, reviews applications, gives technical assistance workshops on rules and gives statewide speeches to CDC programs and at their annual meetings. Fox is familiar with the community development corporations statewide and the activities of each CDC program. He has been instrumental in assisting local entities prepare applications to become CDCs to include filing their non-profit corporate status with the Secretary of State. He has authored a pamphlet for the Department which has been distributed to entities desirous of achieving CDC status entitled "How to become a CDC". (Respondent's Exhibit 1). This pamphlet is widely utilized by entities seeking CDC status and provides all of the basic information needed to become a CDC. The act empowers the Department to administer the CDCSAP and authorizes issuance of one and three year administrative grants, planning grants and loans to fund the activities of eligible CDCs. The act requires the Department to monitor expenditures of CDC funds and to provide technical assistance to CDCs. In addition to CDCSAP grants and loans, CDC has also received funding from private foundations and local governments. The Department has adopted Chapter 9B-14, Florida Administrative Code. That chapter implements the act and establishes regulations and procedures governing the CDCSAP. CDCs fiercely compete annually for administrative grants when filing their applications with the Department. These grant applications are reviewed by Fox. There are approximately fifty CDCs statewide and they annually submit applications for grants. Once these applications are received, Fox reviews and scores them pursuant to Rule 9B-14, Florida Administrative Code. In so doing, the Department uses three reviewers and the reviews are individually conducted. In reviewing the grant applications, a funding matrix is used. Using the matrix, a score and rank is made for each application. Next, the division director goes over each application and the matter is discussed with the Department's Secretary. Later a letter of intent is given (to either grant or deny the application). The score lists the rank and order and is not an entitlement to funding. After the applications are reviewed, the Department's senior management lists a "pre-appeal" score and ranking for each applicant. Once the CDCs are notified in writing of the score and ranking in the pre-appeal scoring matrix, they are also advised that the number and amount of administrative grants awarded will be contingent upon passage of a state budget and appropriation for the fiscal year. Applicants are also advised of rights to pursue an appeal regarding the correctness of the scores pursuant to Section 120.57, Florida Statutes. (Respondent's Exhibit 3). If an appeal is initiated, an administrative proceeding is conducted usually under the informal provisions of Section 120.57(2), Florida Statutes. A hearing officer assigned by the Department conducts a hearing and issues a recommended order. A final order is then entered by the Department's Secretary. Thereafter, each applicant is assigned a final score and ranking in the matrix which determines funding order priority. The final scores are usually determined prior to adoption of an appropriations act by the legislature. As noted, the final score does not establish whether a particular CDC will be funded. Section 290.036(3), Florida Statutes and Rule 9B-14.007(3) and 9B- 14.009(11)(a)-(c) provide the parameters within which the Department determines the number, type and amount of administrative grants it will award. When grant applications are submitted and evaluated, the Department is, at the time, unaware of the amount of money available for upcoming grants because the legislature has not passed an appropriations bill for the fiscal year. Final decision with respect to the number and amount of administrative grants is made after the final appropriation bills and summary statement of intent is transmitted to the Department. "Proviso language" is passed by the legislature as part of the appropriations bill. It is signed by the governor, has the force of law and is binding on the Department. Legislative statement of intent language is transmitted to the governor at a date after passage of the appropriations act by chairpersons of the House and Senate committees on appropriations. The intent language is the statement of how the legislature, in its considered opinion, thinks the appropriated funds should be spent. It guides the Department regarding use of appropriated funds. The Department considers and relies on applicable legislative proviso or intent language in deciding its final determination as to number and amount of administrative grants. Absent extraordinary circumstances, the Department follows the statement of intent language in reaching its final funding decision. Over the years, a pattern has emerged which evidences that the Department carefully considers applicable proviso or statement of intent language. Specifically, from a historical perspective, for the 1983-84 funding cycle, the legislature appropriated $1,175,000 for the CDCSAP but did not include either proviso or legislative statement of intent language. The governor vetoed $200,000.00 of that sum leaving $975,000 to fund the program. The Department awarded administrative grants in varying amounts to 23 CDCs. Subsequently, the legislature amended the statute to allow the Department to fund no more than 18 CDCs. (Respondent's Exhibit 7 and Chapter 84-240, Laws of Florida). For the 1984-85 funding cycle, the legislature appropriated $1,600,000 for the CDCSAP and included proviso language directing that no more than 16 CDCs be funded. In accordance with that proviso language, the Department awarded administrative grants of $100,000 each to 16 CDCs. For the 1985-86 funding cycle, the legislature appropriated $1,600,000 for the CDCSAP but included neither proviso nor statement of intent language. The Department awarded grants of $100,000 to 16 CDCs. For the 1986-87 funding cycle, the legislature appropriated $1,600,000 for the CDCSAP and included proviso language directing that no more than 16 CDCs be awarded administrative grants and that a specific CDC be awarded a training grant. Pursuant to that proviso language, the Department awarded administrative grants of $85,000 each to 16 CDCs, and a $40,000 training grant to the specified CDC. For the 1987-88 funding cycle, the legislature appropriated $1,337,156 for the CDCSAP and included proviso language directing that no more than 16 CDCs be funded. Pursuant to that proviso language, the Department awarded grants of $83,338 each to 15 CDCs. Another $83,338 was divided to provide grants of $41,669 each to two eligible CDCs which received identical scores for the last funding slot. For the 1988-89 funding cycle, the legislature appropriated $1,337,156 for the CDCSAP and included proviso language directing that no more than 16 CDCs be funded. Pursuant to that proviso language, the Department awarded grants of $72,380 each to 16 CDCs. For the 1989-90 funding cycle, the legislature appropriated $1,337,156 for the CDCSAP and included statement of intent language directing that no more than 16 CDCs be funded. The Department awarded grants of $83,572 each to 16 CDCs. For the 1990-91 funding cycle, the legislature appropriated $1,699,600 for the CDCSAP and included statement of intent language directing that no more than 18 CDCs be funded. The Department followed the statement of intent and awarded grants of $90,564 each to 17 CDCs which scored above the minimum point threshold as set forth in the matrix. For the 1991-92 funding cycle, the legislature appropriated $1,600,000 for the CDCSAP but included neither proviso nor statement of intent language. The Department awarded grants of $88,888 each to 18 CDCs. Final scores and ranking does not establish entitlement to funding under the program. The final score establishes whether a CDC is eligible to receive either a one or three year administrative grant depending on the total number of points received. The score also results in ranking of each CDC so that depending upon legislative appropriations and expressions of intent regarding funding, a funding priority is established. Prior to 1991, the act provided only for the award of one year administrative grants. In 1991, the Florida legislature amended the act to permit the award of multi-year administrative grants and planning grants. (Chapter 91-263, Laws of Florida). The provisions of the act relative to funding provides: The amount of any administrative grant to a community development corporation in one year shall be any amount up to $100,000. The Department may fund up to 18 Community Development Corporations this year as provided for in the general appropriations act. The Department shall develop a diminishing scale of funding each year based on the annual appropriation to ensure compliance with this section and Section 290.0365. See Section 290.036(3), Florida Statutes (1991). To incorporate the 1991 statutory changes into Rule 9B-14, Florida Administrative Code, the Department initiated rulemaking pursuant to Section 120.54 in September 1991. Several workshops were held to gain input from CDCs regarding proposed changes to the rule. In addition, a public hearing was held in January 1992 at which the Department received oral and written comments from CDCs regarding the proposed rule challenges. Amendments were adopted and took effect on March 22, 1992. During the rulemaking process, no comment was submitted regarding the proposed changes to Rule 9B-14.009(11). No party initiated a rule challenge to the proposed amendments pursuant to Section 120.54(4), Florida Statutes. Rule 9B-14.007(3), which was not affected by the 1992 amendments, states in relevant part that "[n]o grant will be awarded for funds exceeding $100.000." Respondent's Exhibit 2 at Rule 9B-14.007(3). Rule 9B-14.009(11), as amended in 1992, now authorizes the award of two types of administrative grants of one and three years duration in addition to planning grants. The pertinent portion of this rule provides: A maximum of 18 administrative grants may be awarded in any fiscal year pursuant to Section 290.036(3), Florida Statutes. Applicants which receive a score of 150 or more points will be awarded a three year administrative grant. Applicants which receive a score of at least 100 points but less than 150 points will be awarded a one year administrative grant. For the 1992-93 funding cycle, prior to the application deadline and after the amendments to Rule 9B-14 were adopted, public application workshops were held in Tallahassee and Miami. At the workshops, representatives of the Department discussed the recent statutory and rule changes to the CDCSAP as well as the proper way to complete applications. The application deadline for administrative grants for the 1992-93 grant cycle was April 1, 1992. The Department received 29 timely applications. When the 1992-93 grant applications were received, evaluated and given tentative scores and rankings, the Department was unaware of the amount of legislative appropriations for the CDCSAP and whether any proviso or statement of intent language would accompany the appropriation. After the applications were evaluated, the preappeal scores and rankings derived and the applicants were notified of the results, several CDCs including Petitioners appealed their scores. Informal hearings were held during late May 1992. The hearing officer's recommended orders were issued June 25, 1992 followed by the Department's final orders on July 8, 1992. Thereafter, each applicant was assigned a final score and ranking. For the 1992-93 funding cycle, 21 CDCs scored above the 100 point minimum threshold. Of these 21, 12 CDCs scored above 150 points and 9 CDCs scored above 100 points but less than 150 points. Each of the Petitioners scored above 100 points but less than 150 points. In late June 1992, the legislature passed an appropriations act which was signed into law on July 2, 1992. On July 14, the Department received a copy of the appropriations act and the accompanying statement of intent regarding the disbursements of appropriated funds of the CDCSAP. The Department requested funding of $1,800,000 for the CDCSAP grant and loan program for fiscal year 1992-93. However, the legislature reduced that funding request to $800,000 for the CDCSAP grants and included a statement of intent language directing that those CDCs which received sufficient point scores under Rule 9B-14 to qualify for a three year administrative grant be funded. The intent language states: It is the intent of the legislature that funds provided in specific appropriation 293A shall be used to award administrative grants in accordance with the provisions of Section 290.036, Florida Statutes, of equal amounts, to those Community Development Corporations that receive a sufficient point score under the Department of Community Affairs evaluation of FY 1992-93 grant applicants to qualify for a three year administrative grant pursuant to criteria established in Chapter 9B-14.009(11) (b), F.A.C. In reaching its decision respecting funding, the Department considered whether to follow the statement of intent language and award 12 grants of $66,666 each, or instead to award 18 grants at $44,444 each. The Department's Secretary ultimately decided to follow the statement of intent language and award grants of $66,666 each to the 12 CDCs which qualified for three year grants under Rule 9B-14. The action of the Secretary was within the discretion accorded by Section 290.036(3), Florida Statutes and Rule 9B-14.009(11)(a) to award "up to" 18 grants. The Department has not issued any type of statement which indicates that, in future funding cycles, it will award only three year administrative grants. The Secretary's decision relates only to the 1992-93 fiscal year. Section 290.036(3), Florida Statutes and Rules 9B-14.007(3) and 9B- 14.009(11)(a), Florida Administrative Code commands the Department to award between 0 and 18 administrative grants each year, provided no single award exceeds $100,000. Flexibility is given to the Department based on the uncertainties each year surrounding the legislative appropriations process. Due to the vagaries of the appropriations process, it is not practical or feasible for the Department to adopt a rule which requires it to award a specific number of administrative grants annually. Nor is it feasible or practicable for the Department to wait for the appropriations bill to be passed before initiating an order on the number of grants it will award. The Department strives to get the administrative funds to the CDCs expeditiously. At a minimum, rulemaking takes several months and would accordingly substantially delay transferring grant monies to the CDCs.
The Issue Whether the selection was arbitrary because evaluators were not state employees and were not technically trained? Whether the selection was arbitrary to the extent non-price criteria were used in comparing proposals? Whether Urban Media's proposal was non-responsive because no organizational chart was supplied, because it contained no financial statement or any "statement of work" or a statement incorporating all specifications? Whether Blue Chip's $2500 estimate of administrative costs was responsive? Whether Blue Chip's proposal was non-responsive for failure to quote an unconditional price or to state specific objectives? Whether Blue Chip's financial statements were acceptable, being based on estimates pertaining to a construction company or to a "systems-management" company? Whether Blue Chip had adequate organizational capability to gather the staff to perform the contract? Whether its proposal was sufficiently definite or based on impermissible estimates?
Findings Of Fact By request for proposals No. 88-277, HRS solicited offers to create a statewide media campaign publicizing its "One Church, One Child Program," an effort to enlist churches with African American congregations in placing African American children for adoption with African American families. Proposals Responsive Three days after the June 24, 1988 deadline, Pamela Ann Eby opened every proposal that had been filed on time. She and two other HRS employees reviewed the proposals for responsiveness. Before referring them to an evaluation committee, comprised principally of members of the One Church, One Child Program Board of Directors, they determined that all four were "technically adequate." This included Urban Media's proposal, Joint Exhibit No. 1, which contained a "statement of work," HRS Exhibit No. 9, financial statements, HRS' Exhibit No. 10, a statement of objectives, HRS' Exhibit No. 12, and a timetable both for production and for media exposure. HRS' Exhibit No. 13. Blue Chip's own witness acknowledged that signing the proposal, including ancillary forms, as Urban Media's representatives did, incorporated all specifications called for in the request for proposals, by reference. Nothing was improper or deficient about the "administrative expense" Urban Media budgeted. Although Blue Chip produced a witness who took issue with the level of detail in some items of Urban Media's proposal, the witness testified that he could not say any deviations he perceived were material. Urban Media's proposal was responsive to the request for proposals. Clear Choice Before deliberating as a group, each committee member evaluated each proposal individually, using the form "proposal rating sheet" that had been furnished to the proposers as part of the request for proposals. The Rev. Messrs. R. B. Holmes, W. O. Granger, Elroy Barber, Willie C. Bell, Jr., the Rev. Ms. Cynthia Parker, who has had experience with media and public relations, and Dr. Juanita Clay, the HRS employee who is state coordinator of the Program, served as the committee that assessed the proposals' comparative merits. The proposal rating sheets asked raters to assign points for various criteria. Of 104 possible points, Blue Chip received scores ranging from 21 to The lowest score any committee member gave Urban Media exceeded Blue Chip's highest score by 27 points. At least one committee member gave Urban Media a perfect 104 score. When they met to make their decision, the committee unanimously chose Urban Media. The committee wanted a "top quality" media campaign. Blue Chip is a construction company that has also installed computers. They questioned Blue Chip's ability to deliver at all, and remarked the lack of any previous work of this kind. One committee member reportedly said, "If we're adding on to a building, maybe Blue Chip is who we want to use." The committee recommended that new proposals be solicited, if necessary, rather than making an award to Blue Chip, even though they ranked Blue Chip's Second. By letter dated July 6, 1988, Ms. Eby notified Urban Media that its proposal had been selected. Award of the contract has not been accomplished pending the present proceedings.
Findings Of Fact Respondent, PPC Products Corporation (PPC), manufactures power transistors, recitifers, diodes, and semiconductors. Approximately 80 percent of its business deals with government contracts. Petitioner is Sandra Boatwright, a black female, who worked for PPC for sixteen years. During her career with PPC she received good evaluations. In September 1989, Ms. Boatwright was working in the marking section of the production department. Her duties included putting product units in an oven and removing the units at the end of the baking period. She was a line leader with two to three employees reporting to her. Ms. Boatwright's immediate supervisor was Blynn Gause, the manager of the production department. Stringent government requirements called for the brands on the products to be permanent. During the summer of 1989, a problem had developed concerning the permanency of the marking or branding of the units. Some of the brandings were coming off prematurely. Mr. Gause asked Dolf Storz an employee in the engineering section to find a solution. In order to eliminate possible causes of the problem, Mr. Storz instituted the use of a logbook in the marking section to record the time the units went in and came out of the oven. Logbooks were a common requirement by the engineering section as a means of gathering data. In September 1989, Mr. Storz took the logbook to the marking section and requested the employees, including Ms. Boatwright, to use it. Ms. Boatwright admitted that, contrary to her initial charge, Mr. Storz was never her supervisor. In the latter part of September 1989, after Mr. Gause had returned from a vacation, Ms. Boatwright complained to him that Mr. Storz had been "acting like a king" while Mr. Gause had been away and requested a meeting to discuss the matter. On October 3 Ms. Boatwright, Mr. Gause, and Mr. Storz met in Mr. Gause's office. The discussion centered around the logbook, which the marking section had not been using. Ms. Boatwright did not feel that it was necessary to use the logbook because the marking section was already using an informal logbook to track the units in production. Mr. Storz's position was that the logbook was required by the production specifications and the informal logbook did not record the times the units went in and came out of the oven. Mr. Gause resolved the issue by requiring Ms. Boatwright and the other employees in the marking section to use the engineering log book. Ms. Boatwright thereafter used the engineering log book. On October 3, 1989, the process specification for the marking process, Device Branding Process Specification No. 200-140 was changed to require that the oven data be recorded in a logbook. This change was called Revision J. Ms. Boatwright signed off on this change. Race had nothing to do with the requirement that a marking logbook be maintained. Mr. Gause never advised Ms. Boatwright that he treated whites better than blacks. There was no disparate treatment of Ms. Boatwright in the terms and conditions of Ms. Boatwright's employment with PPC. In mid September 1989, a vacant position in the Lorlin automatic test area of the quality control department was posted. Ms. Boatwright had previously worked in the quality control department. Some time during late September or early October 1989, Ms. Boatwright approached Marleen Williams Coker (Ms. Williams), the quality manager, and asked to be transferred to that position. Ms. Boatwright knew the position was not a supervisory position. Ms. Williams told her she would agree to the transfer but Ms. Boatwright would have to talk to Mr. Gause about the transfer. Ms. Boatwright told Mr. Gause that she wanted to transfer to the quality control department. Mr. Gause, Ms. Williams, and Mindy Hill, the general manager of PPC, discussed the transfer. Although such a transfer was not common in the company due to the necessity for retraining the transferring employee, they agreed to approve the transfer due to Ms. Boatwright's long-term employment with the company. Although the position in quality control was a lower position than her position in production, Ms. Boatwright's pay was not cut. The transfer was approved in early October with an effective date of October 24, 1989. After the approval was given, applications were discontinued for the posted position, a decision was made to combine two other sections with the marking section, a new position with different tasks and responsibilities was created to oversee the merged sections, and the engineering section was contacted to move an engineering employee to the new position. Sometime between the approval and the effective date of the transfer, Ms. Boatwright changed her mind about wanting to transfer. Mr. Gause, Ms. Williams and Mindy Hill met to discuss Ms. Boatwright's change-of-mind. Ms. Hill decided not to reverse the transfer because of the changes that were being made to accommodate the transfer. Race played no part in the decision to allow the transfer or in the decision not to reverse the transfer. Ms. Boatwright's transfer from production to quality was not involuntary. Ms. Boatwright began working in the testing area of the quality control section on October 24, 1989. There were two other employees in that section, Steve Matthey and Mary Lou Rouse, who was the line leader for that section. Ms. Boatwright and Mr. Matthey reported to Ms. Rouse, and Ms. Rouse reported to Ms. Williams. In January 1990, Ms. Boatwright received a good performance evaluation from Ms. Williams. On February 10, 1990, Ms. Boatwright received a pay increase. On March 14, 1990, Ms. Boatwright filed an employment discrimination charge against PPC, alleging that she had been discriminated against based on race in the terms and conditions of her employment. Specifically, she alleged that in the middle of 1989, that all the white line leaders were promoted to supervisory positions and that she, a black, was not promoted. At the hearing Ms. Boatwright stated this allegation was incorrect and should be for the years 1984 through 1990. She alleged that she received increased scrutiny on her work, and her non-black coworkers did not. She charged that Mr. Gause had told her that he treated whites better than blacks. Her complaint stated that she had inquired about a transfer and later informed Mr. Gause she was not interested in the transfer, but was transferred anyway, resulting in a loss of job responsibilities and supervisory promotional opportunities. Each PPC employee is issued an employee handbook, which contains information on various employment related topics, including promotional opportunities. If an employee was interested in an opening, the employee was to contact his supervisor to make sure he was considered and if an employee was interested in advancing to another position, the employee was to discuss it with his supervisor to determine what additional skills or education might be needed to qualify for the position. Ms. Boatwright never discussed supervisory promotional opportunities with Mr. Gause or Ms. Williams, and never inquired of them what education or skills she might need to qualify for a supervisor position. No evidence was presented to show that Ms. Boatwright ever applied for a promotional opening. The employee handbook states that the final decision to promote would be based on the employee's demonstrated skills and capabilities, the employee's experience, education and service with PPC. One of the biggest factors to be considered is the employee's past work performance. In order to qualify for a supervisor position an employee would have to have knowledge of the area that the employee would be supervising, including the equipment and process specifications, to be able to supervise personnel, including disciplining personnel, and to be able to generate reports. Based on Mr. Gause's observations of Ms. Boatwright's past performance in dealing with personnel, she would not be qualified to handle disciplinary matters. As a line leader, Ms. Boatwright brought all personnel problems to Mr. Gause for him to resolve. In 1989 and 1990 there were no promotions from line leader to supervisor at PPC. No evidence was presented to show whether there were promotions from line leader to supervisor during the years 1984 through 1988. Race played no part in Petitioner's lack of promotion in marking and production. PPC maintains an affirmative action plan and annually files an Equal Employment Opportunity Employer Information Report EEO-1. The affirmative action plan, which is updated annually, sets forth PPC's policy with respect to equal opportunity for all employees in hiring, employment practices, recruiting, training, terms and conditions of employment, and compensation. Ms. Boatwright was in Production I job classification for purposes of PPC's Equal Employment Opportunity reports. From 1987 through 1992, the statistics collected by PPC indicate that PPC utilized more minorities and females in Ms. Boatwright's job classification than were available in the general work force in Palm Beach County. The employee handbook states that leaving early is the same as being absent. Before leaving early, an employee must have prior approval from his supervisor, preferably a day in advance. On April 2, 1990, Ms. Williams fired Audrey Shanahan, a white female, for leaving work without informing her supervisor or department manager. The employee handbook states that if work is not available in the employee's area the employee may be assigned another task. The handbook provides for immediate discharge for insubordination. Each employee is expected to follow the work instructions of his immediate supervisor or any other person having the authority of supervisor. If the employee does not think that the instructions are legitimate, the handbook tells the employee to do the work instructed and then take up his complaint with the appropriate person in authority. Bobby Mills was a quality manager at PPC in 1990. He and Ms. Williams were of equal rank, but supervised different sections. Both reported to Mindy Hill, the general manager. When Ms. Williams was absent from work, Mr. Mills would supervise her section as well as his own. When Ms. Williams was present on the job, Ms. Rouse, as line leader, would relay employee requests for permission to go home early to Ms. Williams for a final decision. Ms. Rouse would then relay Ms. Williams' decision to the employees requesting to leave early. On May 2, 1990, Ms. Williams was absent from work, and Mr. Mills filled in for her. Work in the Lorlin testing area was slow on that day, although work was expected to come later in the day. Ms. Boatwright had asked her line leader, Ms. Rouse, for permission to go home at lunch because of the lack of work. Ms. Rouse, believing that she had the authority to grant the permission in Ms. Williams absence, told Ms. Boatwright that she could go home early. Mr. Mills, observing that Ms. Boatwright, Mr. Matthey, and Ms. Rouse were not working, inquired of them why they were not working. Ms. Boatwright told Mr. Mills that she was going to go home at lunch. Mr. Mills informed the group that they could work in another area or go home then. Ms. Rouse told him she could not afford to go home early and she went to another area to work. Mr. Mills left and came back a few minutes later and told both Mr. Matthey and Ms. Boatwright to go to the back to work. Both indicated that they were going to go home early, which they did. To Mr. Mills, their leaving constituted a refusal to follow orders and was therefore insubordination. Although Mr. Mills had the authority to fire employees under his supervision without consulting the general manager, he did discuss the incident with Mindy Hill because Ms. Boatwright and Mr. Matthey were in Ms. Williams' section. He recommended dismissal; however, he was unaware at that time that Ms. Boatwright had filed a discrimination complaint. His recommendation for dismissal of Ms. Boatwright was not racially motivated. Mindy Hill made the final decision to dismiss Mr. Matthey and Ms. Boatwright for insubordination for leaving the workplace when requested to work. No evidence was presented to show that either race or retaliation played a part in her decision to terminate Ms. Boatwright and Mr. Matthey. Mr. Matthey learned of his termination when he spoke to Mr. Mills by telephone on the same day. Ms. Boatwright was verbally advised of her termination when she returned to work the next day. On February 26, 1991, Ms. Boatwright amended her discrimination charge to include her termination from employment with PPC. She alleged that she was discharged in retaliation for having filed a charge of unlawful discrimination under Title VII of the Civil Rights Act of 1964, as amended. The statistics collected by PPC for its affirmative action plans show that for the year October 1, 1989 through September 1990, thirty-four Caucasians and eighteen blacks were terminated. For the previous year, thirty-two Caucasians and twenty-four blacks were terminated. On October 8, 1992, the Equal Employment Opportunity Commission (EEOC) issued a Determination of No Cause relating to Ms. Boatwright's charges. The Florida Commission on Human Relations conducted a substantial weight review and issued a Redetermination: No Cause on April 8, 1993, adopting the October 8, 1992 determination of the EEOC. Ms. Boatwright filed a Petition for Relief on May 6, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner has failed to prove that Respondent committed an unlawful employment practice against Petitioner. DONE AND ENTERED this 27th day of December, 1993, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2647 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1 - Accepted in substance. Paragraphs 2 and 3 - Rejected as not supported by the weight of the evidence. Paragraph 4 - First, third, and fifth sentences accepted in substance. Second and fourth sentences rejected as not supported by the evidence. Paragraphs 5 and 6 - Accepted. Paragraph 7 - First and second sentences accepted in substance. Third sentence rejected as not supported by the evidence to the extent that there was no evidence to show that Ms. Rouse on prior occasions had given employees permission to leave early without getting approval from her superiors. Paragraph 8 - First, third and fourth sentences are accepted in substance. The second sentence is accepted to the extent that Petitioner did leave early but rejected to the extent that she left immediately after the conversation with Mr. Mills at which Ms. Rouse was present. Paragraph 9 - Accepted. Paragraph 10 - Rejected as subordinate to the facts actually found in this recommended order. Paragraphs 11 and 12 - Rejected as not supported by the evidence. Respondent's Proposed Findings of Fact. Paragraph 1 - Accepted. Paragraph 2 - Accepted except as to the date of hire. The evidence shows Ms. Boatwright began her employment on 2-8-74. Paragraphs 3 and 4 - Accepted in substance. Paragraph 5 - Rejected as unnecessary detail. Paragraph 6 - Accepted. Paragraphs 7 and 8 - Rejected as unnecessary detail. Paragraph 9 - Accepted. Paragraph 10 - Rejected as unnecessary detail. Paragraphs 11, 12, and 13 - Accepted in substance. Paragraph 14 - Accepted in substance. Paragraph 15 - Accepted in substance. Paragraph 16 - Accepted in substance. Paragraph 17 -Accepted. Paragraphs 18-22 - Accepted in substance. Paragraph 23 - The first sentence is accepted in substance. The second sentence is rejected as not supported by the evidence. Paragraph 24 - Accepted. Paragraph 25 - Accepted in substance. Paragraph 26 - The last sentence is rejected as unnecessary detail. The remainder is accepted in substance. Paragraphs 27, and 28 - Accepted in substance. Paragraph 29 - To the extent that the first sentence infers that Revision J was in operation prior to 10-3-89, it is rejected as not supported by the evidence. Storz testified Revision J instituted the logbook requirement and was not signed off until 10-3-89. The remainder of the paragraph is accepted in substance. Paragraph 30 - Accepted in substance. Paragraph 31 - Rejected as unnecessary detail. Paragraphs 32, 33, 34, 35 - Accepted in substance. Paragraph 36 - Rejected as unnecessary detail. Paragraphs 37, 38, 39 and 40 - Accepted in substance. Paragraph 41 - The first sentence is rejected to the extent that it infers that Revision J was in effect prior to 10-3-89. The remainder of the sentence is accepted in substance. Paragraph 42 - Accepted in substance. Paragraph 43 - Accepted. Paragraphs 44, 45, 46 and 47 - Accepted in substance. Paragraph 48 - The third sentence is rejected as subordinate and unnecessary detail. The remainder is accepted in substance. Paragraphs 49, 50, 51. and 52 - Accepted in substance. Paragraph 53 - Accepted Paragraph 54 - Accepted in substance. Paragraphs 55, 56, and 57 - Rejected as subordinate. Paragraph 58 - Accepted in substance. Paragraph 59 - The last sentence is rejected as not supported by the evidence to the extent that the term "personnel" included. Ms. Rouse, Ms. Boatwright, and Mr. Matthey. The greater weight of the evidence shows that those three persons did not understand that Mr. Mills was their supervisor. The remainder of the paragraph is accepted in substance. Paragraph 60 - Accepted. Paragraphs 61, 62, 63, 64, and 65 - Accepted in substance. Paragraph 66 - The last sentence is rejected to the extent that Mr. Mills instructed Ms. Rouse to go to the back upon his return. Ms. Rouse left before Mr. Mills returned. The remainder is accepted in substance. Paragraph 67 - Accepted in substance to the extent that Ms. Rouse complied with his instructions prior to Mr. Mills leaving the testing area to inquire if there was work in another area. Paragraphs 68 and 69 - Accepted in substance. Paragraph 70 - The first and fourth sentences are accepted in substance. The remainder of the paragraph is rejected as unnecessary detail. Paragraphs 71 and 72 - Accepted in substance. Paragraph 73 - The last sentence is rejected as not supported by the evidence to the extent that Mr. Mills clearly revoked Ms. Rouse's permission. It is obvious that it was not clear to Ms. Boatwright, Ms. Rouse, and Mr. Matthey. The remainder of the paragraph is accepted in substance. Paragraph 74 - Accepted in substance. Paragraph 75 - Rejected as subordinate and unnecessary detail. Paragraph 76 - Accepted in substance. Paragraphs 77 and 78 - Rejected as unnecessary detail. Paragraph 79 - The first sentence is accepted in substance and the remainder of the paragraph is rejected as unnecessary detail. Paragraph 80 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 81 - Accepted. Paragraph 82 - Rejected as unnecessary detail. Paragraph 83 - Accepted. Paragraphs 84 and 85 - Rejected as unnecessary detail. Paragraphs 86 and 87 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 88 - Accepted in substance. Paragraph 89 - Accepted. Paragraph 90 - Accepted in substance. Paragraph 91 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 92 - Accepted in substance. Paragraphs 93 and 94 - Rejected as subordinate to the facts actually found in this recommended order. Paragraph 95 - Accepted. Paragraph 96 - Accepted in substance. Paragraph 97 - Accepted. Paragraph 98 - Rejected as constituting a conclusion of law rather than a finding of fact COPIES FURNISHED: Ms. Sandra Boatwright 390 West 33rd Street Riviera Beach, Florida 33404-33036 Terry E. Lewis, Esquire Robert P. Diffenderfer, Esquire Suite 900 2000 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
